« PreviousContinue »
the counsellors at law, who have set their hands, shall likewise receive reproof or punishment, if cause be.
57. Demurrers and pleas which tend to discharge the suit shall be heard first upon every day of orders, that the subject may know whether he shall need farther attendance or no.
58. A demurrer is properly upon matter defective, contained in the bill itself, and no foreign matter; but a plea is of foreign matter to discharge or stay the suit, as that the cause hath been formerly dismissed, or that the plaintiff is outlawed, or excommunicated; or 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 the plea appear upon record; but if it be any thing that doth not appear upon record the plea must be upon oath.
59. No plea of outlawry shall be allowed without pleading the record sub pede sigitli; nor plea of excommunication, without the seal of the ordinary.
60. Where any suit appeareth upon the bill to be of the natures which are regularly to be dismissed according to the fifteenth ordinance, such matter is to be set forth by way of demurrer.
61. Where an answer shall be certified insufficient, the defendant is to pay costs: and if a second answer be returned insufficient, in the points before certified insufficient, then double costs, and upon the third treble costs, and upon the fourth quadruple costs, and then to be committed also until he hath made a perfect answer, and to be examined upon interrogatories touching the points defective in his answer; but if any answer be certified sufficient, the plaintiff is to pay costs.
62. No insufficient answer can be taken hold of after replication put in, because it is admitted sufficient by the replication.
63. An answer to a matter charged as the defendant's own fact must be direct, without saying it is to his remembrance, or as he believeth, if it be laid down within seven years before; and if the defendant deny the fact, he must traverse it directly, and not by way of 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 must traverse the point of substance; so if he be charged with the receipt of one hundred pounds, he must traverse that he hath not received a hundred pounds, or any part thereof; and if he have received part, he must set forth what part.
64. If a hearing be prayed upon bill and answer, the answer must be admitted to be true in all points, and a decree ought not to be made, but upon hearing the answer read in court.
65. Where no counsel appears for the defendant at the hearing, and the process appears to have been served, the answer of such defendant is to be read in court.
66. No new matter is to be contained in any replication, except it be to avoid matter set forth in the defendant's answer.
67. All copies in chancery shall contain fifteen lines in every sheet thereof, written orderly and
unwastefully, unto which shall be subscribed the name of the principal clerk of the office where it is written, or his deputy, for whom he will answer, for which only subscription no fee at all shall be taken.
68. All commissions for examination _ _ . .
. Commissions, of witnesses shall be super tnterr. in- examinations
dust's only, and no return of depositions Uo^epcsl"
into the court shall be received, but
such only as shall be either comprised in one roll,
subscribed with the name of the commissioners, or
else in divers rolls, whereof each one shall be so
69. If both parties join in commission, and upon warning given the defendant bring his commissioners, but produceth no witnesses, nor ministereth interrogatories, but after seek a new commission, the same shall not be granted: but nevertheless upon some extraordinary excuse of the defendant's default, he may have liberty granted by special order to examine his witnesses in court upon the former interrogatories, giving the plaintiff or his attorney notice, that he may examine also if he will.
70. The defendant is not to be examined upon interrogatories, except it be in very special cases, by express order of the court, to sift out some fraud or practice pregnantly appearing to the court, or otherwise upon offer of the plaintiff to be concluded by the answer of the defendant without any liberty to disprove such answer, or to impeach him after of perjury.
71. Decrees in other courts may be read upon hearing without the warrant of any special order: but no depositions taken in any other court are to be read but by special order; and regularly the court granteth no order for reading of depositions, except it be between the same parties, and upon the same title and cause of suit.
72. No examination is to be had of the credit of any witness but by special order, which is sparingly to be granted.
73. Witnesses shall not be examined in perpetuam ret memoriam, except it be upon the ground of a bill first put in, and answer thereunto made, ami the defendant or his attorney made acquainted with the names of the witnesses that the plaintiff would have examined, and so publication to be of such witnesses; with this restraint nevertheless, that no benefit shall be taken of the depositions of such witnesses, in case they may be brought viva voce upon the trial, but only to be used in case of death before the trial, or age, or impotency, or absence out of the realm at the trial.
74. No witnesses shall be examined ,. . ,
. .... . , . Ad informs
after publication, except it be by con- dam comcim
sent, or by special order, ad infnrman- ,lanl j"d'c»
dam conscientiam judicis, and then to be brought
close sealed up to the court to peruse or publish, as
the court shall think good.
75. No affidavit shall be taken or admitted by any master of the chancery, tending (o the proof or disproof of the title, or matter in question, or touching the merits of the cause; neither shall any such matter be colourably inserted in any affidavit for serving of process.
76. No affidavit shall be taken against affidavit, as far as the masters of the chancery can have knowledge; and if any such be taken, the latter affidavit shall not be used nor read in court.
77. In case of contempts grounded upon force or ill words, upon serving of process, or upon words of scandal of the court, proved by affidavit, the party is forthwith to stand committed; but for other contempts against the orders or decrees of the court an attachment goes forth, first, upon affidavit made, and then the party is to be examined upon interrogatories, and his examination referred; and if upon his examination he confess matter of contempt, he is to be committed; if not, the adverse party may examine witnesses to prove the contempt: and therefore if the contempt appear, the party is to be committed; but if not, or if the party that pursues the contempt do fail in putting in interrogatories, or other prosecution, or fail in the proof of the contempt, then the party charged with the contempt is to be discharged with good costs.
78. They that are in contempt, specially so far as proclamation of rebellion, are not to be heard, neither in that suit, nor any other, except the court of special grace suspend the contempt.
79. Imprisonment upon contempt for matters past may be discharged of grace, after sufficient punishment, or otherwise dispensed with: but if the imprisonment be not for performance of any order of the court in force, they ought not to be discharged except they first obey, but the contempt may be suspended for a time.
80. Injunctions, sequestrations, dismissions, retainers upon dismissions, or final orders, are not to be granted upon petitions.
81. No former order made in court is to be altered, crossed, or explained upon any petition; but such orders may be stayed upon petition for a 6mall stay, until the matter may be moved in court.
82. No commission for examination of witnesses shall be discharged; nor no examinations or depositions shall be suppressed upon petition, except it be upon point of course of the court first referred to the clerks, and certificate thereupon.
83. No demurrer shall be overruled upon petition.
84. No scire facias shall be awarded upon recognisances not enrolled, nor upon recognisances enrolled, unless it be upon examination of the record with the writ; nor no recognisance shall be enrolled after the year, except it be upon special order from the lord chancellor.
85. No writ of ne exeat regnum, prohibition, consultation, statute of Northampton, certiorari special, or procedendo special, or certiorari or procedendo general, more than once in the same cause; habeas corpus, or corpus cum causa, vi laica removend', or restitution thereupon, de coronatore et viridario eiigendo, in case of a moving de homine repleg. assiz. or special patent, de baltieo amovena", certiorari
Vol. i. 3 A
super pr&sentationibus fact, coram commissariis sewar,' or ad quod dampnum, shall pass without warrant under the lord chancellor's hand, and signed by him, save such writs ad quod dampnum, as shall be signed by master attorney.
86. Writs of privilege are to be reduced to a better rule, both for the number of persons that shall be privileged, and for the case of the privilege: and as for the number, it shall be set down by schedule: for the case, it is to be understood, that besides persons privileged as attendants upon the court, suitors and witnesses are only to have privilege, eundo, redeundo, et morando, for their necessary attendance, and not otherwise; and that such writ of privilege dischargeth only an arrest upon the first process, but yet, where at such times of necessary attendance the party is taken in execution, it is a contempt to the court, and accordingly to be punished.
87. No supplicavit for the good behaviour shall be granted, but upon articles grounded upon the oath of two at the least, or certificate of any one justice of assize, or two justices of the peace, with affidavit that it is their hands, or by order of the star-chamber, or chancery, or other of the king's courts.
88. No recognisance of the good behaviour, or the peace, taken in the country, and certified into the petty bag, shall be filed in the year without warrant from the lord chancellor.
89. Writs of ne ejeal regnum are properly to be granted according to the suggestion of the writ, in respect of attempts prejudicial to the king and state, in which case the lord chancellor will grant them upon prayer of any the principal secretaries without cause showing, or upon such information as his lordship shall think of weight; but otherwise also they may be granted, according to the practice of long time used, in case of interlopers in trade, great bankrupts, in whose estate many subjects are interested, or other cases that concern multitudes of the king's subjects, also in case of duels, and divers others.
90. All writs, certificates, and whatsoever other process ret. coram Rege in Cane, shall be brought into the chapel of the rolls, within convenient time after the return thereof, and shall be there filed upon their proper files and bundles as they ought to be; except the depositions of witnesses, which may remain with any of the six clerks by the space of one year next after the cause shall be determined by decree, or otherwise be dismissed.
91. All injunctions shall be enrolled, or the tran. script filed, to the end that if occasion be, the court may take order to award writs of scire facias thereupon, as in ancient time hath been used.
92. All days given by the court to sheriffs to return their writs or bring in their prisoners upon writs of privilege, or otherwise between party and party, shall be filed, either in the register's office, or in the petty bag respectively; and all recognisances taken to the king's use or unto the court, shall be duly enrolled in convenient time, with the clerks of the enrolment, and calendars made of them, and the calendars every Michaelmas term to be presented to the lord chancellor.
93. In case of suits upon the commissions for charitable uses, to avoid charge, there shall need no bill, but only exceptions to the decree, and answer forthwith to be made thereunto; and thereupon, and upon sight of the inquisition, and the decree brought unto the lord chancellor by the clerk of the petty bag, his lordship upon perusal thereof, will give order under his hand for an absolute decree to be drawn up.
94. Upon suit for the commission of sewers, the names of those that are desired to be commissioners are to be presented to the lord chancellor in writing; then his lordship will send the names of some privy counsellor, lieutenant of the shire, or justices of assize, being resident in the parts for which the commission is prayed, to consider of them, that they be not put in for private respects; and upon the return of such opinion, his lordship will give farther order for the commission to pass.
95. No new commission of sewers shall be granted while the first is in force, except it be upon discovery of abuse or fault in the first commissioners, or otherwise upon some great or weighty ground.
96. No commission of bankrupt shall be granted but upon petition first exhibited to the lord chancellor together with names presented, of which his lordship will take consideration, and always mingle some learned in the law with the rest; yet so as care be taken that the same parties be not too often used in commissions; and likewise care is to be taken that bond with good surety be entered into, in 200/. at least, to prove him a bankrupt.
97. No commission of delegates in any cause of weight shall be awarded, but upon petition preferred to the lord chancellor, who will name the commissioners himself, to the end they may be persons of convenient quality, having regard to the weight of
the cause, and the dignity of the court from whence the appeal is.
98. Any man shall be admitted to defend in forma pauperis, upon oath, but for plaintiffs they are ordinarily to be referred to the court of requests, or to the provincial councils, if the case arise in those jurisdictions, or to some gentlemen in the country, except it be in some special cases of commiseration, or potency in the adverse party.
99. Licences to collect for losses by fire or water are not to be granted, but upon good certificate; and not for decays of suretiship or debt, or any other casualties whatsoever: and they are rarely to be renewed; and they are to be directed ever unto the county where the loss did arise, if it were by fire, and the counties that abut upon it, as the case shall require; and if it were by sea, then unto the county where the port is, from whence the ship went, and to some sea-counties adjoining.
100. No exemplification shall be made of letters patents, inter alia, with omission of the general words; nor of records made void or cancelled; nor of the decrees of this court not enrolled; nor of depositions by parcel and fractions, omitting the residue of the depositions in court, to which the hand of the examiner is not subscribed; nor of records of the court not being enrolled or filed; nor of records of any other court, before the same be duly certified to this court, and orderly filed here: nor of any records upon the sight and examination of any copy in paper, but upon sight and examination of the original.
101. And because time and experience may discover some of these rules to be inconvenient, and some other to be fit to be added; therefore his lordship intendeth in any such case from time to time to publish any such revocations or additions.
THE PASSAGES IN PARLIAMENT
FRANCIS VISCOUNT ST. ALBAN,
LORD CHANCELLOR OF ENGLAND.
A.NNO DOMINI 1620 AND 1621.
On Monday, the nineteenth day of March, 1620, in the afternoon, the commons had a conference with the lords; which conference was reported the next day by the lord treasurer, [who] delivered the desire of the commons to inform their lordships of the great abuses of the courts of justice: the information whereof was divided into these three parts.
First, The persons accused.
Secondly, Of the matters objected against them. Thirdly, Their proof.
The persons are the lord chancellor of England, and the now bishop of Landaff, being then no bishop, but Dr. Field.
The incomparable good parts of the lord chancellor were highly commended, his place he holds magnified, from whence bounty, justice, and mercy were to be distributed to the subjects, with which he was solely trusted, whither all great causes were drawn, and from whence no appeal lay for any injustice or wrong done, save to the parliament.
PROCEEDINGS IN PARLIAMENT AGAINST THE LORD CHANCELLOR. /23
That the lord chancellor is accused of great bribery and corruption, committed by him in this eminent place, whereof two cases were alleged:
The one concerning Christopher Awbrey, and the other concerning Edward Egerton. In the cause depending in the chancery between this Awbrey and Sir William Bronker, Awbrey feeling some hard measure, was advised to give the lord chancellor 100/. the which he delivered to his counsel Sir George Hastings, and he to the lord chancellor. This business proceeding slowly notwithstanding, Awbrey did write divers letters, and delivered them to the lord chancellor, but could never have any answer from his lordship; but at last delivering another letter, his lordship answered, If he importuned him he would lay him by the heels.
The proofs of this accusation are five:
The first, Sir George Hastings related it long since Unto Sir Charles Montague.
Secondly, the lord chancellor, fearing this would be complained of, desired silence of Sir George Hastings.
Thirdly, Sir George Hastings's testimony thereof; which was not voluntary, but urged.
Fourthly, the lord chancellor desired Sir George Hastings to bring the party Awbrey unto him ; and promised redress of the wrong done him.
Fifthly, that the lord chancellor said unto Sir George Hastings, if he would affirm the giving of this 100/. his lordship would and must deny it upon his honour.
The case of Mr. Edward Egerton is this: There being divers suits between Edward Egerton and Sir Rowland Egerton in the chancery, Edward Egerton presented his lordship, a little after he was lord keeper, with a bason and ewer of 50/. and above, and afterwards he delivered unto Sir George Hastings and Sir Richard Young 400/. in gold, to be presented unto his lordship. Sir Richard Young presented it, his lordship took it, and poised [it], and said, it was too much; and returned answer, That Mr. Egerton had not only enriched him, but had a tie upon his lordship to do him favour in all his just causes.
The proofs are the testimony of Sir George Hastings, and the testimony of Merefil, a scrivener, thus far: That he took up 700/. for Mr. Egerton, Mr. Egerton then telling him, that a great part of it was to be given to the lord chancellor; and that Mr. Egerton afterwards told him, that the 400/. in gold was given to the lord chancellor. At this conference was farther declared of a bishop, who was touched in this business, upon the bye, whose function was much honoured, but his person touched herein: this business depending being ordered against Edward Egerton, he procured a new reference thereof from the king to the lord chancellor: his lordship demanded the parties to be bound in 6000 marks, to stand to his lordship's award : they having entered into that bond, his lordship awarded the matter against Edward Egerton for Sir Rowland
Egerton; and Edward Egerton refusing to stand to the said award, a new bill was exhibited in the chancery; and thereupon his lordship ordered that his bond of 6000 marks should be assigned unto Sir Rowland Egerton, and he to put the same in suit in his lordship's name.
The bishop of Landaff, as a friend to Mr. Edward Egerton, advised with Randolph Damport and Butler, which Butler is now dead, that they would procure a stay of the decree of that award, and procure a new hearing: it was agreed that 6000 marks should be given for this by Edward Egerton, and shared amongst them, and amongst certain noble persons.
A recognisance of 10,000/. was required from Mr. Egerton to the bishop for the performance hereof: the bishop his share of this 6000 marks was to have [been] so great, as no court of justice would allow: they produce letters of the bishop naming the sum, and setting down a course how this 6000 marks might be raised, namely, the land in question to be decreed for Mr. Egerton, and out of that the money to be levied; and if this were not effected, then the bishop in verba sacerdotis promised to deliver up this recognisance to be cancelled. The new recognisance is sealed accordingly, and Randolph Damport rides to the court, and moved the lord admiral for his lordship's letter to the lord chancellor herein : but his lordship denied to meddle in a cause depending in suit.
Then the said Randolph Damport assayed to get the king's letter, but failed therein also: so that the good they intended to Mr. Egerton was not effected; and yet the bishop, though required, refused to deliver up the said recognisance, until Mr. Egerton threatened to complain thereof unto the king.
He showed also that the commons do purpose, that if any more of this kind happen to be complained of before them, they will present the same to your lordships, wherein they shall follow the ancient precedents, which show that great persons have been accused for the like in parliament.
They humbly desire that forasmuch as this concemeth a person of so great eminency, it may not depend long before your lordships; that the examination of the proofs may be expedited, and if he be found guilty, then to be punished ; if not guilty, the now accusers to be punished.
This being reported, the lord admiral presented to the house a letter, written unto their lordships, the tenor whereof followeth.
TO THE RIGHT HONOURABLE HIS VERY GOOD LORDS, THE LORDS SPIRITUAL AND TEMPORAL, IN THE UPPER HOUSE OF PARLIAMENT ASSEMBLED.
"Mr VERY GOOD LORDS,
"I humbly pray your lordships all, to make a favourable and true construction of my absence. It is no feigning or fainting, but sickness both of my heart and of my back, though joined with that comfort of mind, that persuadeth me that I am not far from heaven, whereof I feel the first fruits.
"And because, whether I live or die, I would be glad to preserve my honour and fame, so far as I am worthy; hearing that some complaints of base bribery are coming before yqur lordships, my requests unto your lordships are:
"First, That you will maintain me in your good opinion, without prejudice, until my cause be heard.
"Secondly, That, in regard I have sequestered my mind at this time, in great part, from worldly matters, thinking of my account and answers in a higher court j your lordships will give me convenient time, according to the course of other courts, to advise with my counsel, and to make my answer; wherein, nevertheless, my counsel's part will be the least: for I shall not, by the grace of God, trick up an innocency with cavillations, but plainly and ingenuously, as your lordships know my manner is, declare what I know or remember.
"Thirdly, That according to the course of justice I may be allowed to except to the witnesses brought against me, and to move questions to your lordships for their cross examinations, and likewise to produce my own witnesses for the discovery of the truth.
"And lastly, That if there be any more petitions of like nature, that your lordships would be pleased not to take any prejudice or apprehension of any number or muster of them, especially against a judge that makes 2000 orders and decrees in a year, not to speak of the courses that have been taken for hunting out complaints against me, but that I may answer them, according to the rules of justice, severally and respectively.
"These requests, I hope, appear to your lordships no other than just. And so, thinking myself happy to have so noble peers and reverend prelates to discern of my cause, and desiring no privilege of greatness for subterfuge of guiltiness, but meaning, as I said, to deal fairly and plainly with your lordships, and to put myself upon your honours and favours, I pray God to bless your counsels and persons. And rest
"Your lordships' humble servant, 19 March, 1620. FR. ST. ALBAN, CANC."
Upon which letter answer was sent from the lords unto the said lord chancellor on the said twentieth of March, namely, That the lords received his lordship's letter, delivered unto them by the lord admiral: they intend to proceed in his cause now before their lordships, according to the right rule of justice, and they shall be glad if his lordship shall clear his honour therein: to which end they pray his lordship to provide his just defence.
And afterwards, on Wednesday, the twenty-first of March, the commons sent a message unto the lords concerning their farther complaint against the said lord chancellor, which consisted of these four points, namely,
The first in chancery being between the lady Wharton plaintiff, and Wood and others defendants, upon cross bills; the lord chancellor upon hearing wholly dismissed them; but upon entry of the order, the cross bill against the lady Wharton was only
dismissed j and afterwards, for a bribe of 300c given by the lady Wharton to the lord chancellor, his lordship decreed the cause farther; and then hearing that Wood and the other defendants complained thereof to the house of commons, his lordship sent for them, and damned that decree as unduly gotten; and when the lady Wharton began to complain thereof, his lordship sent for her also, and promised her redress, saying, "That decree is not yet entered."
Secondly, in the suit between Hall plaintiff, and Holman defendant: Holman deferring his answer was committed to the Fleet, where he lay twenty weeks, and petitioning to be delivered, was answered by some about the lord chancellor, The bill shall be decreed against him, pro confesso, unless he would enter into a 2000c bond to stand to the lord chancellor's order; which he refusing, his liberty cost him one way or other one thousand pounds. Holman being freed out of the Fleet, Hall petitioned to the lord chancellor, and Holman finding his cause to go hard with him on his side, complained to the commons; whereupon the lord chancellor sent for him, and to pacify him, told him he should have what order he would himself.
Thirdly, in the cause between Smithwicke and Wiche, the matter in question being for accounts with the merchant, to whom it was referred, certified in the behalf of Smithwicke; yet Smithwicke, to obtain a decree, was told by Mr. Burrough, one near to the lord chancellor, that it must cost him 200/. which he paid to Mr. Burrough or Mr. Hunt, to the use of the lord chancellor; and yet the lord chancellor decreed but one part of the certificate; whereupon he treats again with Mr. Burrough, who demanded another 100/. which Smithwicke also paid to the use of the lord chancellor. Then his lordship referred the accounts again to the same merchant, who certified it again for Smithwicke; yet his lordship decreed the second part of the certificate against Smithwicke, and the first part, which was formerly decreed for him, his lordship made doubtful: Smithwicke petitioned to the lord chancellor for bis money again; and Smithwicke had all his money save 20/. kept back by Hunt for a year.
The lord chief justice also delivered three petitions, which his lordship received yesterday from the commons: the first by the lady Wharton, the second by Wood and Parjetor and others, and the third by Smithwicke.
The fourth part of the message consists only of instructions delivered unto the commons by one Churchill a register, concerning divers bribes and abuses in the chancery, which the commons desire may be examined.
The lords, in the mean time, proceeded to the examination of the complaints, and took divers examinations of witnesses in the house, and appointed a select committee of themselves to take examinations also.
And on Wednesday, the twenty-fourth of April, the prince his highness signified unto their lordships, that the said lord chancellor had sent a submission