}' - Kd GHQ . Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 • IN nenoRY of JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daugliter A. M. BOARDMAN and ELLEN D. WILLIAMS | i Cornell university Library KD6939.G461874 Tneh>storvandH-«ce<.theaS" (flornfll Slam ^t\^aa\ IGibrara Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924017848122 THE HISTORY AND PRACTICE HIGH COURT OF CHANCERY, IN WHICH IS INTRODUCED AN ACCOUNT OF THE INSTITUTION AND VARIOUS REGULATIONS OF THE SAID COURT: SHOWING LIKEWISE THE ANCIENT AND PEESENT PEACTICE THBEEOF, IN AN EASY AND FAMILIAE METHOD. BY THE LATE LORD CHIEF BARON GILBERT. FIRST AMERICAN EDITION. BY SAMUEL TYLER, LL.D., PHOFESSOR IN THE lAW SCHOOL OF COLUMBIAN UNIVEH8ITY, WASHINGTON, D. 0. WASHINGTON, D.C.: W. H. & O. H. MORRISON, PUBLISHERS. 1874. Entered according to Act of Congress, in the year 1874, by W. H. & O. H. MORRISON, In the Office of the Librarian of Congress, at Washington, D. C. M'gILL & WITHEROW, PUINTEKS AND STEREOTYPEttS, WASHINQTON, D. C. TO THE ALUMNI- or THE LAW SCHOOL OF COLUMBIAN UNIVERSITY. ia INSCRIBED, WITH THE DOPE THAT THET MAT PROFIT BY ITS TEACHINGS. PREFACE. Melius est petere fonfes, quam sedari rimihs, was the advice given by Lord Coke to students and to practitioners of law. In the spirit of this advice, I recall to the attention of lawyers the able work, PoEtrM RoMANUM, of Sir Geoffrey Gilbert, Chief Baron of the Exchequer in Ireland, and afterwards of the Exchequer in England, He died in the year 1726, and an imperfect edition of the FoBTJM Eomanxjm was published at Dublin in 1756 ; a more perfect one at London in 1758. Since then no edition has been published. It is therefore the edition of 1758 which is now recalled to the attention of lawyers and of students of law. The work is a chief fountain of equity pleading and prac- tice, and is very instructive in examples of equity jurisdiction. It is remarkable for its terse and perspicuous diction, and for its accu- rate analysis, and clear distinctions, and interesting mode of present- ing tlie questions of equity cognizance. The more complete work of Mitford, published first in 1782, then in 1787, and in its completed form, by the author, in 1814, became the chief guide in equity pleading, and has been followed by other similar worla in England, and by Stoiy in this country. Yet the vvork of Gilbert has maintained the reputation of the highest authority down to the present day, and is referred to by the ablest writers on equity procedure, as well as by the most learned judges in their judicial opinions in chancery. We can find novFhere else the relation between equity procedure, and that of the Roman Civil Law and of the Canon Law, so practically explained ; which is a matter not only of historical value, but helps to a more accurate practical knowledge. The light of the ancient books, as all learned practitioners know, is often found necessary to explain to the judicial mind many fundamental prin- ciples regulating practice at the present time. Indeed, without the ancient books, a jurisprudence so emphatically historical as ours would often present questions which the courts could only decide, as they would solve enigmas, by ingenious guesses. The roEXJSi Romanum should (V) VI PREFACE. therefore be repi-odueed, and its light not suffered to be lost to equity jurisprudence and practice. It will be observed by the reader that the latter part of the boolc is entitled Lex Pe^TOBIA. As the first part, FOBUM Romanum, treats of the procedure in equity, the second part, Lex Pejetobia, treats of the subjects of equity cognizance, and of the rules that govern the relief in courts of equity. It is as a Professor in the Law School of Columbian University at Washington that I present the POEUM Bomanum, as I have an edition of Stephen on Common Law Pleading, and will soon an edition of Mitford on Equity Pleading, to the students and lawyers of the United States, as one of the means which my position affords me of advancing the cause of legal knowledge in its scientific as well as its practical form. Samuel Tylee. Washington City, May^ 1874. CONTENTS. CHAPTER I. Of the OEIGINAIi of THE COTXKT OF CHANCBEY 1 CHAPTER II. A COMPAEIBON OF THE PEOCEEDINGS IN THE CIVIL AND CANON LAW WITH THOSE OF THE COTJET OF CHANCEEY 20 CHAPTER III. The oeiginal op the English practice 29 CHAPTER IV. Of the oeiginal bill 44 CHAPTER V. The othbe peocess of the couet, and of peocess against peees .,. 64 CHAPTER VI. Of answees and exceptions, replications and eejoindeks.. 86 * CHAPTER VII. Of the examination of witnesses, and passing publica- tion 114 CHAPTER VIII. Of the decree 148 (vu) VUl CONTENTS. CHAPTER IX. Of the bill of ebvivob 169 CHAPTEB X. Of the bill of review, and of the appeal 179 CHAPTER XI. Of injunctions, elections, stipplicavits, and ne exeaib BEGNO 188 CHAPTER XII. Some general observations on the coukt of chancery 213 FORUM ROMANUM. CHAPTER I. OF THE ORIGINAL OF THE COURT OF CHANCERY. To consider the division of tlie courts of jus- Division of the tice, we must see how they stood immediately """' ^ ° ^"^ '™' before such divisions were made ; and from the time of the Saxons till the reign of Edward the first, the several county courts and sheriiFs' courts did decline in their interest and authority. Decline of the The methods by which they were broken were °°™ '''"'"' ^' twofold. First, by granting commissions to the sheriffs By granting jus- ■! 'i. 1} ' i_' ' 1 1 Lt 1 • IV 1 1 ticies to the sher- by writ or justicies; whereby the shenii had iffs. a particular jurisdiction granted him to be judge of a particular cause, independent of the suitors of the county court; and these commis- sions were after the Norman form, by which all power of judicature was immediately de- rived from the prince. These commissions were necessary to give the sheriff a jurisdiction above the value of forty shillings. The second way whereby the county courts By making jua- were broken was by appointing the justices in '°^^ '" ^'^^^' eyre.* These were appointed in the twenty- second year of Henry the second, and were when appointed. *Ancieiit dialogue concerning the Exchequer, p. 30, b, printed in 1758. 2 FOKUM KOMANDM. [Chap. I. judges that sat in the several counties to hear and determine causes, as well criminal as civil ; and these proceeded in the same method of judicature as was observed in the King's courts, and kept an uniformity in the law, which was very much broken by the distinct courts of jus- tice that before had transacted all civil busi- ness in their several counties. From hence, afterwards, they began to grant commissions to take assizes, which were commissions *pro re nata upon all complaints of disseizin done in their several counties. What the King's The King's owu court consisted of the jus- court consisted ... , ,-. t ' n jn ^tax i of. ticiar, who was the cniei omcer oi state, and the chancellor, t or keeper of* the seal, and such other barons and tenants §m capite as the King called to their assistance. These were called by writ to the determination of partic- ular causes ; and though, towards the latter end of the first Norman period, there were some great officers of state that were constantly resident, yet the King, according to the weight of the cause, called sometimes more and some- times less in number; and by virtue of such writs they sat and transacted all civil business. This court of the King transacted all civil and criminal pleas, as likewise the matters relating to the revenue. These, when they sat as a court of revenue, resided in the exchequer; when they sat on criminal and civil causes, they sat in the hall of the King;|| when they sat in the exchequer, the treasurer generally * According to the exigency of the matter. f Ancient dial, concerning Exch. p, 9, b. ?In chief. II Ancient dial. p. 4, &c. Chap. I,] FORUM ROMANUM. 3 presided, as a maa best skilled in tlie revenue ; when they sat as a court criminal or civil, the justiciar presided, as a man best skilled in the law ; when it wd,s a matter of great moment, as upon levying a new war or raising an escu- age, most of the great persons that held *in capife were called, and here they transacted all manner of business^ as well criminal as civil, relating to the revenue; and this was called the commune concilium Begni, or the The parliament. parliament ; and to this court, afterwards, the representatives of boroughs that held *in capite were called. This was the great court baron of the kingdom ; and when they sat, all less courts and councils seemed to be superseded. But these were seldom called during the first Norman period, because such concourse was formidable to those princes; but less councils to transact the public business were very fre- quent amongst them. All the pleas that were depending iu the courts of the King or of the exchequer were put before them, save only the inquest of offices that were not traversed, and the common estreats upon which process went, were not brought before them, because these, being matter of course, remained as before in the exchequer. In the barons' wars, the power of Hugo de Burgo, who was the justiciar, was turned against the King, and it was found likewise that the barons who had great districts were The barons very , , , i ii J- J 1 1 • troublesome. very troublesome to the crown ; lor though in the conqueror's time, and for some reigns after the conquest, they were kept in very good sub- * In cLief. 4 FOEUM ROMANUM. [CHAP. I. jection, and the Norman and English barons were a balance one for the other, the Normans being dependents upon the crown, who had now planted them in the kingdom ; but after- wards, time wearing away the distinction, the Normans grew up English, and became fond of those liberties and privileges that the English had enjoyed in the Saxon times; and from hence grew the barons' wars, which introduced a new police in the kingdom, which hath con- tinued, with some alteration, unto this day; and for this purpose, after the battle oi Evesham, in the time of Henry the third, there seem to be some of the wisest policies set on foot that have ever been known in any nation ; for, first after the conquest, the King confirmed the Great Charter Great Charter, which made him very popular, con rme . -^^ making so good an use of his conquest as not to grasp at the liberties of the people. The next step that was taken was that of forming a balance with the great peers, by breaking the territories that were escheated into smaller districts, to hold immediately from , the crown. From hence came the distinction The distinction between the *barones majores and the ^harones between the bar- . rrn * 7 • 1 i ones majoies miuores. i he '^oarowes mcyores Were thosc that and the barones t -, .-, ■.. . minores. had the greater districts, and the jbar-ones minores were the new tenants §iji capite that had the smaller territories; and because the number of the -f barones minores was too great to be called together at the assembly and con- vention of the states, they took a new method to balance their power with that of the ancient baronage. ♦Greater barons. ■)■ Less barons. | In chief. Chap. I.] FORUM ROMANUM. 5 Such ports and boroughs as had held *per what boroughs , , , - -IT were anciently oaromam, were anciently summoned to parlia- summoned to . . . . . , parliament, and ment, and sent their representatives to sit with why. the baronage, because they were equally con- cerned in the taxes and levies of the kingdom with the rest of the 'fbarones minores, holding then about as large a quantity of land in the county as amounted to a barony. They like- wise sent their representatives both of counties and boroughs, which, as some have said, were digested into one house; but I believe they were originally formed into two, as they are at present ; from hence the writ is, that they should choose ^duos milites gladiis cinctos; and from hence afterwards the taxes and levies were given in the lower house, because the ports and boroughs were trading parts of the kingdom, and the barons of those ports settled the several customs and taxes that were raised to the use of the navy ; and as the barons that held \\in capite to accompany the King in his wars were summoned to a parliament to as- sess the escuage, so the barons of the ports and boroughs were summoned to the King's court to settle the tallage ; for there were two distinct tenures in the kingdom, that seem to have had originally charters from the conqueror: the military barons that were used to accompany the King in the wars, and the boroughs which used to maintain the navy. And there was also a third sort, which were the ancient de- mesne lands, which used to maintain the table of the King. As to the tenants in ancient * By barony. -f Less barons. ^ Two kuigbts girted with swords. || In chief. FORTJM ROMANUM. [Chap. I. demesne,* they generally used to bring in their corn or gabel rent in specie to the exchequer ; those that held in burgage tenure were used to present particular donatives to the King upon particular expeditions. These last were often sent for and consulted in foreign expeditions where the navy was concerned. Burgage tenure. These burgage tenures were various, accord- ing to the different nature of their patents ; for some held at a certain rent, others to fit out ships for the navy. But the most general way of infeudation was by certain rents. And as the tenants '{in capite that held by military ser- vice were often summoned to give aids to the King, over and above their military duty ; as aid to the King's son, or to marry the King's daughter ; so those that held by burgage ten- ure were summoned when the King desired a ^ donative, and donatives were then given in the King's courts for each particular borough, and they were there registered and accounted for by the sheriff; and this was over and above their constant rent and services, paid for such bor- Taiiage what. oughs Under the name of tallage. But towards the period we have mentioned all the representatives of the burgage tenants, and the representatives of the ^barones minores, were cast together into one house. And as the military barons in former times gave their aids apart upon every knigbfs fee, and the burgage tenants gave their donatives apart, so much upon every borough, upon the coalescence of the ^barones minores and the burgesses into *Anoientdial.p. 20; Seld. Eng. Janus, 57; 2 Seld. 1003. f In chief. J Less barons. Chap. I.] FORUM ROMANUM. 7 one house, they fell into a new way of taxing, which was by way of subsidy : as the tenth penny Tallage by sub- of every man's substance, which they called dismes, and the fifteenth of every man's sub- stance, which they called *quinzimes. These were raised by particular laws, and were gath- ered by distress, according to the value of every man's personal siibstance, and at the time when every man's personal substance was visible. I find in Byley's Placita Parliamentaria, f 516, a writ to the clergy for the gathering their tenths, and that they themselves should appoint col- lectors. And it seems that books were kept by the crown of the state and condition of the clergy and laity when these taxes were collected. But because the commons, sitting by right of representation, could give no more than they were empowered by their principals, therefore all taxation used to begin in their house ; neither Taxation always would they suffer it ever to be altered, because fommoas?' they looked upon that to be a breach of trust, in not conforming to the original instructions they received from their principals. This seemed to be taken from the customs of the ancient bor- oughs, who were instructed to give a particular sum for every particular borough ; and they did not immediately leave that way of taxing; and afterwards, when they came into a more gen- eral way of taxing by tenths and fifteenths, they used to consult their principals, as they had formerly done, what they could bear ; and when once by consultations together they had formed one general subsidy, they would never suffer it to be touched by the superior baronage. This * Fifteenths. f Pleadings in parliament. 8 FORUM ROMANUM. [ChAP. I. gave the power of the purse to the commons, which, as it gave an opportunity to the crown to gather great sums of the people, so it made them a balance for the ancient baronage, and in after times even too great for them. But the power of judicature was reserved to the ancient baronage, or the *barones majores. This arises from the history already mentioned, for the *barones majores were generally the persons who were summoned for hearing the causes, and these as well ecclesiastical as tem- poral. And in the ancient times, chiefly eccle- siastical great causes were generally heard by them, as well originally as by appeals, as may be seen in Ryley, above quoted, where like- wise we find many instances of original causes referred to inferior courts that were of no great moment. But all petitions against great per- sons and the prince's officers were heard in this court. From hence this became a place of orig- impeaohments iual jurisdiction for impeachments, which were House'of Loids. preferred either by private persons or by the whole commons oi England; and likewise the t dernier resort to correct the errors of inferior judicatures ; but as to original causes, they be- gan to refer them to the inferior jurisdiction, to avoid a multiplicity of that sort of business, as may be seen in Ryley, 156, 157. And when any matter of fact was to be tried, there used to go out writs to the justices in eyre, to sum- mon the parties before them, to try the fact ac- cording to the command of the writ, as may be seen in Byley, 74, 75. The barons' wars The next policc that was introduced after the * Greater barona. -f The last resort or appeal. Chap. I.] FORUM ROMANUM. ' 9 wars with the barons, was that of breaking the breakthe power power of" the justiciar into several courts, which into sovmaf"" make the ordinary jurisdictions that are now in being; that is to say, the chancery, the King's bench, the common pleas, and the exchequer. First, as to the chancery ; and that had a The chancery /> .t /y» ■ 7 • ^^^ originally a fourfold use: first, as an *qfficina brevium; sec- fourfold use. ondly, as a control and check upon the court of exchequer ; and thirdly, as a Latin court, for the proceedings on the records there touch- ing persons privileged; fourthly, as a court of equity. First, as an *officina hrevium. Anciently the The ofBoina , T , n brevium what. masters in chancery made out all summonses to parliament, and the writs for the common pleas to proceed upon. But after the Xmagistri cancellarii had settled proper writs and com- missions, and those things began to be of course, then had they proper under officers, which made out their writs of course, and they began only to attend the making out of the new writs in extraordinary causes, and the ordinary writs and commissions were made out by the proper officers. Hence it came to pass that the officer called the clerk of the crown made out all state commissions, after the forms of them were settled ; as commissions for jus- tices errant, and of assizes, general jail de- livery, ^oyer and ^terminer, and of the peace, writs of association and \^dedimus potestatem, for taking of oaths, and all general pardons and special pardons ; also writs of execution upon the statute staple, which were annexed to this * An office for writs. % Masters in chancery. ■f- To hear. ? Determine. || Commissions. 10 FORUM ROMANUM. [Chap. I. office, in the time of Queen Mary, for their con- tinual and chargeable attendance, all which writs were before made out by the cursitor. The cursitors were formerly as clerks to the masters who made out the writs, and were after- wards settled into a distinct office to make out the *brevia de cursu. There were likewise in Clerks of the this court clcrks of the hanaper, who regis- mnaper, tcrcd the fines that were paid on every writ, and saw that they were sealed up in bags, in order to be opened afterwards and issued; and the comptroller, who attended and inspected the opening of the bag in which the writs were put, and was a check upon the clerks of the Jianaper. The reason of the The reasous of the institution of this § officina institution of the , . tt t ,^ , • l. • i ^ offlcina brevium. orevium are many, r irst, that it might appear that all. power of judicature whatsoever flowed from the King, and therefore there was a sum- mons even to the peers in parliament that sat "fin jure propria; so, likewise, for the lower house of commons, the basis of the same was made by writs that issued out of this court, and were returned into the same office ; and also in every judicature there were particular patents, which showed the extent of their com- missions, and that their power was derived from the crown. Second reason. Another reason for this institution was, that the crown might have their proper fines. || These were anciently paid to purchase justice from the crown ; for they would not suffer per- sons to come into the King's courts, and engage * Writs of course. ^ The office for writs, t In their own right. || Ancient dial. p. 56. Chap. I.] FORUM EOMANUM. 11 the power of the King to do right to private persons, without first receiving something from the subject towards the charges of the court and the expense of the judicature. Insomuch as in the ancient times tire King used to summon several of the barons to attend the hearing of such causes ; but afterwards, by * MagnaCharta, these were reduced to fines certain, that the crown might not be defrauded, and the writs were taken out of the court of chancery, re- turnable in the other courts, that one court might be a check to the other. A third reason of this institution was, to keep Third reason, an uniformity in the law ; for whether these writs went out to the sherifi" in nature of a justicies, or whether they were returnable be- fore the justices in eyre, or justices of the common bench or assize, they were still made in one form, according to the nature of the com- plaint, which was both a direction to the judge and a limitation of his authority. The second office of the court of chancery second office of was that of a check upon the court of ex- chequer. fThe sheriffs^ the escheators, and all other officers relating to the revenue, were sworn in the exchequer ; and when they, §otV- tuie officii, took an inquisition of the death of any person, of the lands of which he died seized, they used to return it into the exchequer. But the chancery, in order to quicken these officers, would issue writs, and when they took any inquisition || virtute brevis, they were wont to return it into the chancery. But to under- * The great charter. f Ancient dial. Excheq. p. 50, b. § By virtue of their office. || By virtue of the writ. 12 FORUM ROMANUM. [Chap. I. stand the authority of the court of chancery in relation to the revenue, and what share of juris- diction was settled in that court upon the division of the courts of justice, it will be neces- sary to look into what was the usual business of the chancellor in the first Norman period. In the ancient times the chancellor was like- wise chaplain to the King, and it was his busi- ness, in the time of the justiciar, to write the diplomata, that is, all charters and commissions from the King. Therefore, when the power of the justiciar was broken, he obtained the * ojt- cina brevium and fcartarum regiarum. From thence all the extraordinary jurisdictions touch- ing granting of charters, as likewise all inquests of office to entitle the crown, were returned into this office. And the exchequer, in which these things were anciently transacted, became only an ordinary court of revenue to let leases to the King's farmers, and to get in the King's See Giib. Hist, debts. And therefore the office in the ex- ViewoftheEx- ■, -, jy* n • , t- r* t , chequer, 132, 133, chequer was only an office or instruction ot what lands were in the King in particular counties. But to vest lands in the crown ^de novo, it was 5 Co. 52; 10 Co. nccBSsary to have an office under the great seal ; ' and so to grant lands from the crown, (unless it were merely the farms that were granted for years,) it was necessary they should have patents under the great seal. From hence, when any writ went out of the chancery in order to quicken the sheriffs and escheators, it was returned into that court as part of the extraordinary jurisdiction that fell to the share of the chancellor after the division * The office for writs. -j- Royal charters. § Anew. 115; Page's Case. Chap. I.] FOKUM EOMANtJM. 13 of the courts, and there any party grieved was to come in to traverse. And so if a *scire facias issued to repeal any patent, it was returnable into this court, because there such patents were registered, and there the party came in and pleaded before the chancellor. And if a de- murrer was joined, the chancellor was judge. But if they pleaded to' issue, the chancellor why the oiBoina - , , , . , , , brevium could could not award a jury process, but was to not award « jury 1 ■ 1 p 1 T7" J process. carry the record itselt over to the King s bench, who awarded the jury process upon it, and afterwards, upon the verdict, gave judg- ment. And the reason of this seems to be that the chancery, being the '\officina hrevium, if it could have tried issues, might have easily encroached upon other jurisdictions, in making the writs that were issued out of his court re- turnable into it. And from hence it was that they kept original and judicial writs distinct from each other. For though the chancery gave judgment upon such inquisitions, and upon a * scire facias, where a demurrer was joined, yet such judgment was either to remove the King's hands or to repeal the patent, upon which no judicial writs needed to issue. Thirdly, the said jurisdiction was as a Latin Third office of court for the proceedings on the records there, chancery. touching persons privileged, and also upon re- cognizances. As to the privilege of officers, this was plainly arising from their attendances. And their jurisdictions in recognizances arose from the records remaining with the chancellor here. And because they had in the former cases usu- * Writ to show cause. f The office for writs. 14 FORUM EOMANUM. [ChAP. I. ally given judgment in demurrer, so in this case, when demurrer was joined they gave judgment also. But they never having issued any jury process in the cases of the revenue, in the old Norman times, so in these privileged cases they issued no jury process, because they had never done it in the cases of the reve- nue. What makes the Those two last jurisdictions in the chancery pe y ag. make up what we call the petty bag, whereas all the original writs that were the foundation of all the business in the courts of justice were put together in the lianaper; so the writs that went out to return inquisitions into the chan- cery were returned into the petty bag, which gave the distinction to those names, and begot distinct officers in the court. Fourthly, of the court of equity. The court of This court was newly erected after the di- e?edted"aftlr the visiou of the courts, and from a very small and ciurts" which was inconsiderable beginning, hath not only curbed justiciar's power the jurisdiction of the common law, but hath was taken away .,■,-, -. after the barons' introduced a ucw process, and a new manner of trial, totally before unheard of; and which, though it was very much impugned even to- wards its first original creation, yet could never be remedied, and is now grown to that degree that it has swallowed up most of the other bus- iness of the common-law courts. We must there- fore see what footsteps there were for this juris- diction in the ancient * curia regis. And that there must be some footsteps for an English proceeding to give occasjion and rise to this court seems to be plain from the English juris- * King's court. Chap. I.] FORUM ROMANUM. 15 diction in the court of exchequer, as well as that which is exercised in the pourt of chancery. There was, no doubt, a power in the ancient * curia 7-egis, upon treasure trove, or goods de- Register Brev. 24. tained from the King, to send to the party by a t venire facias, and examine him upon arti- cles administered to him upon oath. We find this now practiced in English informations in the King's behalf in the exchequer, and like- wise upon impeachments in the house of lords, where articles are exhibited in English for the parties to answer. But in the court of the King, between party and party, the pleadings were in French, and afterwards entered upon the roll in Latin; and they were entered thus in Latin [before the statute of 28 E. 3] to keep a perpetual memorial of what was done in the courts of justice, which they thought could not be in changing and fading languages. When the party came in, he answered to such articles, and if Jie discharged himself upon oath, he was acquitted; but if they proceeded against him by witnesses, it was upon Latin informations, where they always descended to issue. And there was no more to warrant this jurisdiction in the ancient * curia regis. At the first division of the courts, the chan- cery was very tender in making out writs, in cases where there had been formerly no prece- dents in the ancient * curia regis, which are now called ^actiones nominatce, because they thought the ancient footsteps that were in for- mer courts of justice were the bounds of the * King's court. f Writ to summon the party. § Nominal actions. invent writs. 16 FORUM ROMANUM. [Chap. I. law ; therefore, whenever there was a new case that seemed to require remedy, the ordinary jurisdiction referred them to petition the next parliament, where proper remedies were given for the peculiar cases. But because this mul- tiplied petitions to parliament, there was a pe- culiar law made, by which it gave the court a 2 Inst. 405. power in a new case to invent a writ, which is M"gaTl'a™power the Stat. West. 2, cap. 24. * Et quotiescunque to tfio chancellor, , , ... 77 • 7 ■ in new cases, to de ccBtcro eveuerit m cancelLaria, quod m uno casu reperitur breve, et in consimili casu cadente sub eodem jure, et simili indigente remedio, non reperitur, concordent clerici de cancellarid in brevifaciendo, vel atterminent querentes inprox- imum parliamentum, et scribantur casus in qui- bus concordari non possunt, et referant eos ad proximum parliamentum, et de consensu juris- peritorum fiat breve, ne contingat de ccetero, quod curia Domini Regis deficiat conquerentibus in justitid perquirendd. Writs founded on Though the chauccry by this statute was armed with great power, yet the officers there used it very modestly, only to grant jurisdiction to other courts upon writs in new cases ; and for this the writ of entry f in consimili casu, which, relating to lands, was by way of eminence said * And as often as it shall for the future happen in chan- cery that a writ be found in one case, and not in a similar case of equal justice, and where the like remedy is wanting, the clerks in chancery shall agree to make a writ, or the suitors be at liberty to apply to the next parliament ; and such caSes concerning which they cannot agree shall be tran- scribed and referred to parliament ; and the lawyers shall consent to a writ, that the Lord the King's court may not for the future be deficient in doing justice to the suitors of it. t In the like case. this statute. Chap. I.] FORUM ROMANUM. 17 to be founded upon this statute. There were likewise founded upon this statute actions upon the case, upon several trespasses, in which ca^es there were not found any writs in the register. But towards the times of Richard the second, they not only made use of this statute for the making of new writs, but for the erecting a new jurisdiction ; and the occasion was this. The making the statute oi mortmain had curb- ed the growing power of the clergy. They afterwards found out an invention to avoid the statute, by giving away lands to trustees for pious uses, and the feoifees of such trust did the duties of such tenure in behalf of the trust ; but if they perverted the trust, the ordinary jurisdic- tion could take no notice of it, as being against the statute of mortmain so to do ; but JohnWal- s seiden, 1544. tham, then bishop of Salisbury, and chancellor, (as the commons mentioned in their petition,) out of his subtlety found out and began a nov- elty against the form of the common law, and that was the invention of the writ of subpoena. The writ of sub- mi ■ ., 1 ii i i poena first found This writ summoned the party to appear ua- out.andbywiiom. der a pain to answer to such things as were objected against him ; and a petition was lodged in chancery containing the articles to which he was obliged to answer^ and upon such articles it was that this new invented writ issued. But the 7 i?. 2, cap. 6, was made to hinder the Damages given .T P ,T ■ ,1 1 ■ 1 1 "> persons drawn growth 01 this court, by which damages were into ciiancery by . , , ,, , 1 . , false suggestions. given to such persons that were drawn into chancery, or before the King's council, upon such false suggestions. There are petitions of the commons against 2 Hen. 4,69; 4 this new invented jurisdiction. But when they 5, IbJ ' ' 18 FORUM ROMANUM. [ChAP. I. had settled this new process of subpoena, in order to make the party appear, they took the whole process that had been used in parlia- ment, in order to bring persons to answer charges exhibited before them ; that is, the The attanhment attachment wherebv they took up his body as made use of. •' ■'. ^ •' . a contempt for not appearing, the proclamation commanding him to appear upon pain of his allegiance, and likewise to attach his body wherever he was found, either within liberties comtnission of or without. The ncxt was a commission of rebellion, which recited the proclamation, and ordered the person to be taken up wherever he was found ; and likewise a command to all constables and bailiffs to assist the sheriff. These were all directed to the public ministers and officers of justice, and plainly appeai-ed to be the ancient prerogative process to com- pel an appearance in the supreme court of judicature. If these three processes did not fetch in the party, it was presumed there was some negli- gence in the officers and ministers of justice; and therefore the supreme judicature sent an sergeantat-arms. officer of their own, to scc whether the party did really hide himself from justice or not; and if the officer returned that he did, then Sequestration, issucd out a sequcstratiou upon all his lands, A sequestration goods, and chattels whatsoever. These are the before subpcena - . i i . upon men in cus- two last prerogative processes ; and long it was before the court of chancery could fix them to subserve the justice of that court. For the 2Chan Oases, 41; courts of commou law SO far impugned the Cro. Eliz. 061 ; 1 . r O '^ra^e «*witts" scqucstration, the last prerogative process, that they held if the sequestrators were resisted by Chap. I.] FORUM ROMANUM. 19 the party and killed, that it was no murder, but only *se defendendo; for that the chancery had no jurisdiction t**''' rem, but only ^in per- sonam. The court of chancery being thus erected to why masters m ■^ ° chancery were issue process, and the chancellor or lord beeper appointed. that had the government of that court, had the great seal, by authority of which all pro- cess was to issue: from hence it was that there were masters appointed in that court that made out the forms of the writs, and entered them in a book kept for that purpose, thence called the register, and such writs are prece- Register for dents for the future in like cases. And ex- ceptions were taken to writs in the courts to which they were directed, for not agreeing with the register, and for divers other inform- alities, because such informal writs raised a pre- sumption that they did not issue out of the great shop of justice, from which all courts ought to found their authority in civil pleas. By the ordinary jurisdiction on every cause The original of of complaint, the chancellor issued the writ after diction of the .. /., i-"/¥»i 1 1- court of chan- examination ot the plamtitr, that the subject eery. might not be needlessly disturbed ; but when the case was extraordinary, and it was necessary to have the defendant's own oath, the chan- cellor, by his extraordinary jurisdiction, had power to send for and examine him upon the several allegations in the plaintiff's petition; and this gave birth to tlie English jurisdiction of the court of chancery. By the ordinary jurisdiction, on every cause in Edward the we see that in the times of Ud. 1. they began began to"keep'^ close to the fo *Self defenee. f Against the estate. § Against the person, of ">« register orm 20 FORUM ROMAN tTM. [Chap. II. to keep close to the forms of the register ; so that the statute of Westm. 2, cap. 24, was made to enlarge the ordinary jurisdiction only. For it was then doubted whether the chancellor could go beyond the settled forms of the writs, because he was obliged to follow the law, and was not entrusted with the power to innovate and make new laws; but this statute only gave power to the chancellor to make out new writs, where he found similar cases ; there- fore the extraordinary jurisdiction, where there were no like cases, or where the party was to be examined upon oath, was left as it was before. CHAPTEE II. A COMPARISON OP THE PROCEEDINGS IN THE CIVIL AND CANON LAW WITH THOSE OF THE COURT OP CHANCERY. corvin. Dig. lib. ANCIENTLY, among the Romans, every one i)einju8vo- might Cite his adversary without process, *et invitum, et relucfantem ohtorto collo in jiis, hoc est, ad tribunal prcetoris, testato tamen trahere; for they could not take him by the collar, to draw him before the prsetor without a witness, before whom the party declared that he in- tended to draw the person whom he laid hold of before the preetor, and not to assault him * And drag him by the collar, notwithstanding his yinwill- ingness and resistance, to justice, that is, before the prrator's tribunal, provided it was done in the presence of a witness. Chap. II.] FORUM ROMANUM. 21 injuriously; and this was called *antestatio. Afterwards the praetor, hy his edict, prohibited certain persons to be drawn thus to justice, without his permission, as magistrates, and afterwards, those to whom reverence was due; and from hence they came to citations ; nor citations made did they permit any body to be drawn out of Romans. his own house, because it was said that the person was sufficiently punished who was forced to lie hid in his own house; and the t actor, if the person was cited at his house, and did not appear, was put into possession of the goods of such person. The citations were twofold, either §ver6aKs citations twofold, or II per nundum, and the § verhalis was in writ- senger. ing, and was either given to the person or left at his house. The citation '^per nuncium, which was called J realis, was by persons sent by the prjetor, when the person did not appear upon the ** verbalis citatio, and this was the ff ap- pre^ensio personce. When the factor and §§reMS came before the preetor, then the factor did ||i|acitonem edere; and anciently this was done by show- ing the cause of his action to the praetor, who thereupon gave him out his proper action ; but afterwards the factor used to have his cause of complaint ready in writing, to offer to the praetor, which they called the libel, and with The iibei. it produced such contracts or instruments as were the foundation of his title or complaint, and then the ^^reus was obliged to give bail to * The calling one to witness. f Plaintiff. ? Verbal. II By a messenger, t Eeal. ** Verbal citation, f f Taking the person. §§ Defendant. |||| To declare his-action. 22 FORUM ROMANUM. [Chap. II. The reus to give appear at the third day afterwards, which was after the libel Called * dics pevendinus, and this time was given him to consider whether he would con- test or not at the third day. If he contested the suit, there were forms of questions and answers which mutually passed between the factor and ^reus, in which questions the '\ actor affirmed his right and the %reus denied it, and The oontestatio this was Called ^^contestatio litis. Likewise be- fore the praetor, the ^reus, without contesting the suit, might put in Xexceptio declinator ia, as also he might desire that the ■\actor might he sworn that the suit was not commenced out of malice; as the factor might have the %reus sworn that he did not defend it out of malice ; juramenta ca- and thcse oaths Were called **juramenta calum- litem oonteata- uicB post litem contestat'am. The praetor gave tarn, which were , .^ titii t i i that the aetor did them ludges, audthe libel contested was brought notsue,northe , „ , . , , ,. ,., , , . reus defend, out bciore the judgcs, and upon this libel the f oc 1 t™. 309, 12, 13, 14. cording to the ancient lorm, any Moman who had demand against another might drag him to justice, \[6btorto collo, as they called it, yet that being found inconvenient, they came to a new method, which was, that they should first Xedere actionem, before the praetor, and then The actor waa the praetor gave him out his proper action, and his cause of ao- a liberty to cite the party, and he either cited prsetor. him by himself or by a messenger, and then " the defendant was either obliged to go along with his adversary or give security to appear ; and if he did neither, the * actor might, \\obtorio collo, force him before the prator. When the freus came in before the prcetor, the * actor did produce his cause of complaint, which was sometimes called the second libel, for the first libel was in order to obtain the power of citing, and was called the **libellus supplex, and the Libeiius suppiex, second, to show the ■freus what he was to an- ubliius aotionis, swer, was called the ft Ubellus actionis aut mer- ^''*'' itorius, and then the * actor asked of the prtetor potestafem agendi, that is, the power to implead * Plaintiff. f Defendant. § Lawyers and patrons. {{ By laying hold of his collar. % Declare his action. ** Suppliant libel, -j-f Libel of the action, or which tended to the merit of the cause. 24 FORUM ROMANUM. [Chap. II. the defendant, and *formulam, containing the form of the action, and ■fjudicem, who was to hear and determine the matter. And for that end the factor did summarily show before the prfetor how the action accrued ; and if it was founded on any instrument, he produced it, if not, a witness before the praetor. Here, likewise, the || reus proposed his excep- tions, either **declinat rice, also called -ffdila- torice, or ^^peremptorice, though the peremp- torice might also be put in before the judge ; and thus the cause agebatur surnmaiim, as they call it, and the prastor determined whether they should proceed in judgment or not. If the prastor adjudged they were to proceed, then the II reus was either to yield or give up the matter in demand, or contest it, which was the ||pi7ts contestatio, and was closed before the praetor. When the prastor had given a judge, he was to make out a citation against the || reus to ap- pear before him, and there the first act was for the defendant to answer the positions on the libel. After those positions were answered, the next citation was upon the articles, upon which the defendant was to bring in his cross- cross-inten-oga- interrogatories to the witnesses, who were to tones, what. , . be examined on the part of the plaintili" upon the articles, as likewise any witnesses of his own which he had to produce on the matter of the articles ; and at that act there was given a probatory term, within which all witnesses were to be examined, and the depositions after- * The commission, f The judge, g Plaintiff. || Defendant. **Sliuffling. tt Dilatory. ?? Peremptory. Uncontest- ing the suit. Chap. II.] FORUM R(^MANUM. 25 wards to be published. One of the judges who was to hear the cause was one of the persons who examined the witnesses, and reported as to their credit, as whether they answered truly, or only as they were instructed. The third act was the citation after the probatory term was over, and publication had passed, in order to hear judgment; so that in every judiciary act there was need of a citation, lest they should proceed * parte inaudita, which they thought to be unjust, and contrary to the law of nature. At the hearing of the cause the J ac?uocaii Pith. verb. Ad- came, who were the persons who attended the vorat. causes on both sides, and gave advice in matter of law. There was likewise the ^patronus, who was the person who defended the ^reus, and was called the orator, if he was a man of great eloquence, though the ^patroniis and the orator differed in this, that the '\patronus was Tiie difference „T ..,..,..,. T , between the confined to judicial pleadings, but the orator patron and orator. undertook all manner of causes, as well delib- erative and demonstrative as judicial. When sentence was given, such sentence was Wood's cmi Law, 334 delivered to the pristor, and if it were of a wiiere the cor- thing corporeal, the prastor put the || actor into ^ possession ; but if it was a matter incorporeal, as obligations, &c. , then the || actor was put into possession of so much of the movable goods where the mova- . n ■ ble goods. of the § reus as would satisfy the debt, except- ing always the tools in trade and husbandry and the beasts of the plough, if enough besides to answer the debt ; and if no movable goods were found, then the immovable goods were ♦Without hearing the other Bide. t Advocates, t Patron. ■ g Defendant. || Plaintiff. 26 FORUM SOMANUM. [Chap. II. Where the body seized, and for want of such the person of the ofthereua. ^ ^ . * reus was at last taken in execution. Citation, Gal. 90. The beKinninK and foundation of every cause Mai-anth. 240. . , . . , °, , ,, , ,, i-i i IS the citation by the canon law, though the libel must be regularly in before the return of the citation, and regularly is supposed to precede it, and therefore the canonists say, that it is not enough in the citation to express the cause ftft genere, but so explicitly that the person cited may know for what cause he is called, and that he may come prepared to answer ; but it is not necessary to insert the tenor of the libel in the citation, especially in civil causes ; but if they transmit the tenor of the libel with Where the reus the citation, then the defendant must come is cut off from all ^ - . , rt* n n diiatories. prepared to answer, and is cut oft iroin all dilatories ; from hence comes with us the sub- poena II ad respondendum, which is called the subpoena § certis de causis, which never inserts the tenor of the libel or bill, and therefore time Gal. 96. is given to answer, but the bill is supposed to precede it, and prays a subpoena, as the libel was supposed to precede the citation by the canon law ; but it was sufficient both by rules 4and5 Ann. 0.16, of equity, before the statute for the amend- eec. 23. r> 1 ment of the law, and by the canon law, if the libel or bill was in by the day of appearance, which was four days inclusive after the return of the citation, and that was the same as the ** dies perendinus in the old civil law. Our citation was formed %certis de causis, and not to express the substance or abstract of the libel, as they in the civil or canon law, because * Defendant. f Generally. || To answer, g For certain reasons. ** Day of appearance. Chap. II.] FORUM ROMANUM, 27 they were to appear to answer *libellus articu- latus, of whicli more hereafter ; which being formed upon several circumstances, could not be commodiously inserted in the citation ; and the canonists wont so far, that if any person was cited to appear f cid certam causam, he was obliged to answer to any other cause, because they said that the effect of the citation was appearance, and so we have ruled it, that he is obliged to answer any other bill of the same plaintiff, because he has appeared to that plain- tiff, and therefore there is no occasion to have bim further cited ; but if any other plaintiff puts in his bill, be must be cited § de novo, because by his appearance he is supposed to have instructed his proiptor or clerk Jg'Moad that plaintiff and no other. If there be error in the name, in the citation, Gaii. 93. , -, , . 1 • p 1 Error in the in the christian or surname, there, 11 another christian or sur- name; orif an- person so named be served and appears, he other person ^ i X J appears, he shall shall have his costs, both by the canon law and have costs. equity; but if the person falsely named be served, and does not appear, there they cannot proceed in any process against him, because no person is cited, \\et nullce sunt qualitates; and therefore it should seem by both laws, that if he appears and goes away without answering, there can be no process against him, because the process must run upon the foundation of the citation, and the process against Peter can be founded upon no contempt or contumacy against John; but if the first citation be right, * The articles of the libel. f For a certain reaaon. JAnew. JAsto. II And there are no qualifications. 28 FORUM ROMANDM. [Chap. II. Mistakes in the and there be any mistake in the subpoena *ad joinoihearjudg- rejungendum or f audiendum judicium, there by by appearance, both laws it IS cured by appearance, because by appearance he contests both in the proofs and at the hearing ; for if he examines his witnesses, he waives the mistake in the subpoena *ad re- jungendum; and if he appears at the hearing, he waives the mistake in the subpoena ^ad audi- Darand.77. endum judicium. If the person falsely named in the primary citation appears, he may by both laws pray to be dismissed with costs. Gail. 99. The citation was of no validity unless it was Subpoena must be , , i i c 7 _;■ ■ -j- ^ returnable on a made returnable %ad diem jundtcum, because courtday; other- ,i j p i. i, p _7 j- • -j- wise void. the day ot appearance must be %aa diemjuridi- cum; and this rule prevails as well in the canon law as the court of chancery ; but if the sub- poena be returnable with us § ad diem juridicum, at the latter end of the term, for expedition, the defendant is obliged, in the court of chancery, to appear and answer within eight days after the term, the defendant living within twenty miles of London, because the chancery is open after the term, and the defendant is cited to appear as of that term, and to answer of the same term. Gail. 100. By the rules of the canon law, in causes which require celerity, and where there was danger of delay, a citation might be || ad diem feriatum; and hence it is that out of term you may have a subpoena out of chancery, return- able immediately, upon affidavit that the de- fendant lives in town or within ten miles there- of. * To rejoin. f To hear judgment. ^ On a court day. || On an holiday. Ohap. III.] FORUM EOMANUM. 29 By the canon law and rules of the court of Gaii. los. , ^ • , , • 1 1 t Citation may be chancery, a * citation or subpoena may be served served at defend- at the house of the party as well as personally, weii as person- because it is presumed to have come to his knowledge, and that therefore the defendant ought to appear. As for the time of appearance after service wiiat time de- .. 1 . T .11 fendant has toap- of the Citation, the canonists determined that pear on a citation. the "^citatus must have so much time, that §acif locum citatum commode venire posset; and they reckoned this ||per dietas, twenty miles being a day's journey; from hence the first rules in chancery came to be, that if a man lived within twenty miles of town he must appear in four days after service of the subpoena; but if the subpoena was made returnable immediately, which was the quick process against those who lived within ten miles of the town, the person cited was to appear within two days. OHAPTEE III. THE ORIGINAL OF THE ENGLISH PRACTIC(E. By the old civil law, where any person was cod. lib. 3, tit. s, ' „ , ^ . , . verb. Offeratuv, cited, he was to appear before the prsetor within Nov. 53, cap, », three or four days after such citation, or they *N. B. A citation may be served on a Sunday, and good. Garth. 504 ; 1 Ld. Raymond, 706, arg. f The person cited. ^ So that he might conveniently come to the place he was cited. || By days' journeys. 30 FORUM EOMANUM. [Chap. III. Corvin. in Cod- ioem, lib. 3, tit. 9, fol, 09. Code cum GIos- sis, lib. 3, tit. 9, 544. The dies peren- dinus was the fourth day after the citation; and from this comes our quarto die post. Reus hath ten days to put in his exceptions. Durandi spe- culum dedila- tionibus. Maranth. 32G. proceeded to apprehend him as a person contu- macious. This third or fourth day was called the * dies per endinus, and from the Roman law the '\ quarto die post had its original, which was the third or fourth day after the return of the process. This time was given, by the Roman law and by ours, for the defendant to agree with his adversary. When the ^reus came be- fore the prtetor, the plaintiff was \\edere actionem, as is already mentioned ; and by the old civil law the ^reus had two days to put in his excep- tions, either dilatory or peremptory, and if he did not put them in within that time he was contumacious, and the prtetor either put the plaintiff in possession, or sent further process to apprehend the person of the defendant. Jus- tinian, by the Novel Institution, lib. 3, tit. 9, Offeratur, added twenty days, in which the %reus, after appearance, might agree with his adversary, and this he did because the judge was to be appointed by the prtetor, and both the ** actor and the %reus agreed by solemn words to stand the determination and sentence of the judge so given by the prsetor. By the canon law, there was no judge given, for the ordinary appointed the judge, but there were four days for the %reu^ to appear, which was according to the old method of appointing a * dies perendinus ; but when the ^reus appeared he had not twenty days to put in his answer, as he had by the code. But they gave him a term to put in all his pleas to the libel, accord- ing to the nature of the case. * Day of appearance. f Fourth day after. § Defendant. || To produce his libel. ** Plaintiff. Chap. III.] FORUM EOMANUM. 31 In the institution of the court of chancery, Eeg. in cane. lo. t 1 t n 1 n t /»i • After the return they had lour days alter the return ot the writ of the writ, the ■' mi • T defendant had to appear. This was accordina; to the canon and four days to ap- ■'■ ^ *-' pear, which IS the civil law^ and also according to our own, which quarto die post. appointed the *quarto die post the return of the writ as the day of appearance ; and when the party appeared, he had a peremptory time to After appearance, I,- -U • 1,* J i- A. A .hehadeight answer, which was eight days irom the day ot days to answer ' 1 , • ^. ■ from the day of appearance, so that the time lor answering was appearance. double to the time of appearance ; for they thought the time of twenty days, which was given by the code, was too much ; and they thought, to leave a latitude to the judge to ap- point a dilatory term, as they did in the canon law, was too uncertain, and therefore they ap- pointed double the time of appearance for the proper time of answering. Butif the subpcEna was returnable immediate, if returnable im- ,, ,, • , , • ; 1 p mediate.twodays then there were two days appointed tor appear- for appearance, -, T'r'ii /'• exclusive of the ance in chancery, exclusive ot the day ot service, day of service. n , . T , ' Ififiedoesnot ■ for that they construed to be immediate, when appear immedi- •^ ' ately, an attach- the time of appearance was shortened by one ™ent issues ^^ *' against him. half; but they gave them the same time to an- Rules and orders J J a in chancery and swer, because a person living within twenty exchequer. miles of London might have a necessity for the same time in the preparation of his answer, and therefore he had the same time allowed him. The exchequer was a chancery originally for the debtors of the King, and therefore, where the subpoena was returnable immedi- ately, they were to appear the next day after on immediate service, because the King's debt might not 'beexoE^q^^er'Jthl T T T n i j> ii • Ti- n defendant was I o delayed tor want ot their appearance. 11 the appear the next subpoena was made returnable at a day certain, * Fourth day after. 32 FORUM KOMANUM. [Chap. III. ifieturnabieata that being out of the common course, required certain day, the i i n /. i deiendant was to more haste, and therefore they were to appear appear in two ' '^ ■*■ *■ days. in two days, and the rather that the defendant might not have time to fly from the process of the court ; and therefore, where it was return- ahle immediate, or upon a day certain, there was less time given to the defendant, that he might not have an opportunity to fly from the attach- ment ; and on the original settlement of this process, the issuing it out in this extraordinary manner showed that it required haste ; but if Where four days it wcrc a commou rctum, that being in the were allowed for - . - , < t* to appear upon ordmary lorm, they were to appear in tour subpoena In the exchequer. days, as they did m chancery ; but when they had appeared, they had the same time to an- swer as they had in chancery, because they had a like necessity for time to make their defense. Maranth.258. By the cauou law, the defendant was to be thrice cited, or else *per unum peremptorium, and then, if he did not appear, he was pronoun- Durand. 108, 9, 10, ced fcoTitumax; but if the defendant had no house where he could be cited, he was cited ^per proclamationem in the vicarage of the place where he lived ; and if he did not appear upon the proclamation, he was likewise '\ contumax, and upon the contumacy of the defendant the Primum decre- plaintiff obtained the '^primum decretum, to put him into possession of the defendant's goods, or at least as much of them as would answer the debt, if it was a debt that was demanded; or in possession of the thing itself which was de- manded ; as if it was Xfundus, or the like ; and * Peremptorily. fin contempt. ? By proclamation. II The iirst decree. { An estate. turn. Chap, III.] FOEUM ROMANUM. S3 this *primum decretum was founded upon a sum- Maranth. 259. mary proof of the plaintiff's cause of demand, upon his oath. And if the defendant persisted in his contu- secundum deore- macy for a year, then the judge came to the t secundum decretum, whereby the plaintiff was decreed the property of the thing in demand, of which he was put in possession by the *pri- mum decretum ; and if it was a debt which was demanded, the goods of which he was put in possession by the *primum decretum were sold to satisfy such debt ; but then the plaintiff pro- duced witnesses before the judge, or instruments Maranth. 260. to prove the truth of his demand. If the defendant appeared before the fsecitw- ibid. 261. dum decretum, he was liable to a mulct, for he could not be heard in the cause till he had cleared his contempt by reimbursement of the plaintiff's expense, and he was likewise to give security to abide the decree. In civil causes they had not regularly a real Maranth. 247. citation, which is the taking of the person of the defendant ; but yet they might have such real citation, if the person cited was ^contumax; if such person had no goods of which, by the *primum decretum, the plaintiff might be put in possession ; for then his body was to answer. If the defendant was '^persona illustris veZ The nobility clarissima, he ought to be cited in writing, be- MaTanthri'oo. ^' cause it was the most respectful manner of ap- plication. The citation may be served by any. body, and even by the plaintiff himself, because the * First decree. f Second decree. ^ In contempt. II A nobleman or person of distinction. 3 34 FORUM ROMANUM. [Chap. III. Maranth. 246. authority of the citation is from the commis- sion of the judge, and not from the act of cita- tion ; and therefore, whoever hears it, it is the same to enforce the appearance of the party. Gail. 101. If this citation he from the prince, then the very first is peremptory, and if the person does not appear, he is * contumax. The subpoena is with us the citation ; and if an afiidavit be made of the service of it, and filed, and the defendant does not appear at the times above mentioned, he is * contumax of course, because this is a citation from the prince. The next step is the "f apprehensio realis, which takes up the person of the defendant ; and they proceeded thus to take up the person, and not to § missio in possessionem, according to the civil law, by reason of a prejudice among the lawyers at the erection of this court; for i Inst. 84. they apprehended that the court had no author- ity but against the person, since it was to deal with the conscience of the party, and that it could not put the plaintiff into the possession of the thing itself. If the sheriff, who is the officer of the court, upon a contempt returns || non est invenhis upon Attaohment with the attachment, then they proceeded, as in the proclamation. •■ii x i .■ i-i -.i civil law, to a proclamation, which with us is an attachment with proclamation ; and if upon the proclamation there was a return of |1 non est in- ventus, there went out a commission of rebel- lion, to apprehend him as a rebel ; and if upon that there was also || non est inventus returned, * In contempt, t Attachment, g Put a person in posses- Bion. II He is not found. Chap. III.] FORUM ROMANUM. 35 they sent the immediate officer of the court, who is the sergeant-at-arms, to seek and take him. All these were *citationes reales; so what real oita- 1 1 111 .1... T t tionsare. that they had three *citationes reales before they came to the '\primum decretum, or seques- tration ; and this was gained with great strug- gle, it being an old prerogative process against a rebel, that all his goods should be seized and sequestered. The canonists do take the proclamation or The prooiama- jprimum decretum to he ^ quasi litis contestatio; deoretum of the ' .~, canonists. and that therefore the plaintiff may proceed to his proofs, and then the || secwnrfum decz-e- secundum deore- tum for the thing in demand may be pro- nounced. We have no ^ quasi litis contestatio with us, because, unless the defendant comes in and contests, there is no jurisdiction to a court of conscience ; for unless the party con- fesses the fraud or corruption of which the court inquires, or it be proved upon him, there is no sufficient ground for a decree, which can- not be without J contestatio UHs. But there are two cases in which an implied vvhatshaii be confession is a sufficient ground for a decree. pUed concession. The first is, when a man appears by his clerk ch. Rep.soi 2Ch. in court, and afterwards lies in prison, and is brought up three times to court by ** ha. cor. , and has the bill read to him, and he refuses to answer. Such public refusal in court does amount to the confession of the whole bill. * Eeal citations, f First decree, f As it were a contest- ing of the suit. II Second decree, J Contesting the suit. ** Have the body : a writ so called because it commanded the sheriff to have the body on such a day and at such a place. 86 FOKUM ROMAN DM. [Ceap. III. 2Wms,557;and The sccond casc IS, wheii a person appears see 5 Geo. 2, o. 26. ' ^ it Where the de- and departs without answering, and the whole fendant appears J^ o' ftDd departs with- pi-ocess of the court has been awarded against out answering, no ^ => alafnltMm^'but ^"™ ^^*®^ ^^'^ appearance and departure, to the a sequestration, sequestration. There also the hill is taken * pro confesso, because it is presumed to be true when he has appeared, and departs in despite of the court, and withstands all its process without answering ; and this seems to have been the ancient practice of the civil law, NoTei, iiz, c, 3. for Justinian, by the Novel, brought in the f secundum decretum in the absence of the party ; and the canonists, by a fiction of law, prociaraation made the proclamation ^ quasi litis contestatio; quasi litis contes- .. ,•,,-, ,,..-.-. -, i, tatio. but by the ancient civil law no decree could be had against an absent person against whom process had been issued, but could never be brought in to appear. And it is so with us, that if the whole process of the court be spent, and the defendant never appears, you can never have a decree, for you can never make any proofs against an absent person who is never brought into contest, and there is no founda- tion for a decree without confession or proofs. However, the plaintiff has the benefit of the sequestration, which answers to the \\primum decretum. Of the subpoena. The subpoena by The subposna is the first process in the court, common law was ,,,..., ' a process to bring In orQcr to bring ill the party to answer. a witness in to at- mi i . i teat the truth. The subpoena was anciently and originally a process in the courts of common law, in order * To be confessed. ■}■ Second decree. ? As it were con- testing the .suit. II First decree. Chap. III.] FORUM ROMANUM. 37 to bring in a witness to attest the truth ; and it is a summons to the party under a penalty to appear and give his testimony. This pro- cess was therefore taken up by the high court when the ohan- '■ •' ° eery flfst used it. 01 chancery, when a man was convened to conset. 2c. ■' ' Clerk's Prax. 16. answer upon oath as to the truth of the plain- tiff's allegations, because it was the nearest process that was used in case of attestation by the common law. And this was formed after the manner of citations by the civil and canon law, in which it was necessary to insert the names of the de- fendants, and also of the plaintiffs, at whose suit, and at what time and place they were to appear. The return of the subpcena is either ordi- The return of the T -n- 1. T.I subpoBua twofold. nary or extraordinary, h irst, ordinary, which ordinary, which ..... _~, is returnable any IS at any day certain within the term. For, day certain in ordinarily, no subpoena is returnable in the vacation ; the reason of which is the same as that on which depends the constitution of the terms, which is very well deduced by Spelman in his Law Terms. For anciently the King's courts were open from three weeks to three weeks all the year long, as the courts of other inferior lords, for their tenants and vas- sals ; but after the conquest, w^en business began to multiply in the King's courts, the days and times of devotion and the time of harvest were set apart as * dies non juridici. Therefore Hilary vacation was appointed for vacation be- Lent, Easter vacation for the time of Whitsun- was settled for ■ 7 1,1 ,• <■ • , m • •, '^® BsXie of devo- tide, and the preparation for it, ^Znmtj/ vaca- tion and harvest, tion for the harvest, and Micliadmas vacation * Not court days. 38 FORUM ROMANUM. [Chap. III. The extraordi- nary, which is made immediate, and in the time of vacation, upon affidavit that ttie party livea in town or within ten miles of it. Praot. Eeg. in Chan. 340; Har. Chan. Praot. 290. Whatmistalcesin a subpoena will vitiate the writ. for Christmas. And the vacations being thus fixed for the times of devotion and country business, it was thought fit not to disturb the people any more by the extraordinarj"^ jurisdic- tion than by that of the common law. Secondly, the extraordinary return is made immediate, and in the time of vacation ; this by special petition or motion to my lord chancellor or keeper, and an afiidavit that the party lives in town, or within ten miles of it. And this is excepted out oi the general rule, because not within the reason of it ; for the parties near the court would not be disturbed, or brought from their country business by such attendance, and the corporation courts in cities were open all the year long ; and therefore it was fit that the court of chancery should be open to all the parties that dwell within a convenient dis- tance from the town, that the jurisdiction might be as extensive as that of any court whatsoever. But no subpoena is returnable immediately in term time, because you may have it returned at any day certain, as soon as you please. The immediate one supposes an ur- gent necessity for an appearance, which cannot be in term time, where the time of appearance is every day. These mistakes in the subpoena vitiate the writ. First, in the name of the parties ; for if the party served be not named in the writ, there was no authority in the court to convene him, and therefore it was no contempt in the party not to appear. And therefore, if an at- tachment issues upon such subpoena, upon ap- plication to the court it will be discharged. Chap. III.] FORUM ROMANTJM, 39 Secondly, in the return ; as if it be taken out in the return. in term time, returnable at no certain day ; for the party is at a loss when to appear, and there- fore there is no contempt in not obeying it. Thirdly, in the form of the writ; for if the in the form of the form of the writ be mistaken, it cannot be pre- sumed even in the court to which it is rel^firn- able that it issued from thence, and therefore the subject shall not be obliged to take notice of it. There can be no more than three defendants No more than , three defendants put into one subpoena. The reason is to pre- can be put in one f 1 • • ly -n\ -f • subpcena. vent the vexations of plamtms. For it it were equally cheap to put in a multitude of names, the plaintiff might put in abundance of defendants, in order to terrify and vex them ; for it is some small inconvenience fox a man to hear that there is process out against him, though he be never served, and yet, unless he no costs uniesa ° . . „ served. be served, he cannot be repaired in costs from the plaintiff. And they were also confined to the number three, to prevent the mistakes which the transcribing a multitude of names in the label might occasion. The husband and wife are taken together Husband and , wife in a subpoe- but as one of the three, because they are as one na but as one . person. person in law, and the property totally in the husband. If there be two in the subpoena, it costs three what are the shillings, if three, three shillings and sixpence, pcena. because the charge of the subpoena ought, for reasons aforesaid, to swell in proportion to the number of the defendants. And if there was but one in it, it was two shillings and sixpence before the stamps increased it. 40 FORUM ROMANUM. [Chap. III. Where many Where there are many plaintiffs, they need plaintiffs. t-».i- i ' not all be named, but only A. B. * et al., since that is sufficient notice to the defendant to ap- pear, for the appearance to A. B. will be ap- pearance to the rest. K the label and The label is a short copy of the import of the pffina do not ^" " subpcena, as it relates to each particular defend- gooTseivice.and ant ; therefore, if the label and body do not It is no contempt ^ i i i j. not to appear, agree, the party served may take advantage of it ; for it is no contempt in the party not to appear if he be not served with the subpoena itself, or a true copy of it ; and the label is not a true copy of the subpoena, if it doth not agree with the writ itself. If defendant is to As to copies, it is to be known that when the musTbe a sub- defendant is to appear, there must be a subpoena Lm, or a true left with him, or the copy of it. But when there only interioeu- are Only iuterlocutory orders in a cause, then it tory orders, it is , ^ , . enough to show is enough to show the orders, and that is notice such orders. ° ' sufficient. For the clerks of the court are sup- posed to be residing in court, and therefore, upon notice of such orders in a cause, they may consult the original in the minutes. But if the orders direct notice, some have said they must leave copies. How subpoena The scrvicc of the subpoena, if it contains must be served. i/*!, i -i it • i ii one aelenaant only, is by delivering the body of the writ, first, to the parLy himself, and this Where service on is a personal iiotice ; secondlv, by leavinsc it at first defendant's ^ / ' . ^ i J to lodgings not his dwelling-house, with one of his familv, or, if good, he having ° ■' i befo'i'^'^tho^e?-'^ ^^ ^^^'^ ^^ house, at the last place of his usual 2Vern.369; Eq. residence. And this was held a good summons ph Si^Pre! c/iS ^* 1^'"^) i*^ ^ ^''i* ^^ '^ebt and in all real actions, as may be seen in Booth of Actions, because it * And others. Chap. III.] FORUM ROMANCM. 41 was presumed that a man must have notice of it in his usual place of abode ; and if such notice should not be sufficient, it would be easy, by keeping out of the way, to escape the extraor- dinary jurisdiction. If a defendant cannot be found, so as to be served personally, or has no certain dwelling, or is beyond sea, service on his attorney or clerk in court is good. Prax. Cane. 4. If there be more than one defendant in the subpoena, you must deliver the label to the first, and show him the body, so to the second, and reserve the body for the last, because the label will not appear to be a true copy unless the seal of the court appear on the body ; and unless the seal appear, which is the ensign of the authority, no man need pay obedience to the mere written label. If the subpoena be against husband and wife, service on either and either the husband or * wife alone be served, good^servfe'e on^ it is good service of the other, because they are the same person, their property is tbe same, and therefore in a cause here against husband and wife, if one be served, it is presumed to be a sufficient notice to the other ; and though the husband appears, yet, for want of an appear- ance for the wife, an attachment will issue against both, inasmuch as it is a contempt in both if the wife does not appear as well as the husband, since the husband ought to take care to order an appearance for his wife. Gary, 76, 111. If two persons commence a suit beyond sea * Query, whether service on the wife is good service on the husband in chancery, though it be so in the exchequer. 42 FORUM ROMANUM, [Chap. III. Subpoena sewed to arrest the plaintiff's goods at Leghorn, by on a defendant in i • t r i a in England or- order 01 court the service on one deiendaitt dered to be good . i i i i i service on the here may be service on the other beyond the other beyond sea, n -i t • i • i i and why. sea; for both joining in the suit beyond sea are looked on in the cause but as one person, and by consequence they are to be looked upon here but as one person, they beinsr in this matter the same in interest. Love v. Baker, Clianc. Gas. 67; Nels. Chanc. Rep. 103. When subpoena The subpoena must be served before noon of must be served. iii„, t-ipi the last day oi the return. Jbor alter the re- turn day it cannot be served, because that is the time for appearance; and it cannot be a contempt not to appear when you have no notice to appear, till, by the mandate of the writ, you ought to be in court. And it must be served before noon of the last day of the return, for the six clerks sit but till noon, and then strike the time in their books, and the afternoon is reckoned into the next day; for by the ancient accounts of the jurisdiction of courts, the juridical time was only in the morn- ing. When the service The scrvice is good in the night or on Sunday, or on'sunday!^ if it be before the time of the return ; for this being only process of notice, and not to arrest the parties, it can create no disturbance, though it be served in the night or on Sunday * Injury done to If injury be done on the party that served the person serv- .-, . i i t i i .' ing the process, the pvocess, in word or deed, or the authoritv on affidavit of the ^ fx. . ^ i nn i ■ , fact, and on mo- 01 the court contcmned, upon affidavit and tion, the court . ^ wiucommitthe motion the party shall be committed to the party offending. -^ ■' Fleet by attachment, for it is against the dig- nity of the court to suffer such contempt. And * Query, whether regular by the modern practice. Chap. III.] FOKUM ROMANUM. 43' the rather, because the process is executed by private parties, ^d not by public officers ; for no private man would serve the process if he was not to be vindicated from obloquy and contempt. On Saturday, 23d oi February, 1722, in the ifapersonthnt n r^ * 7 1 T* • ■ ,T 1 resides in the case 01 Uonmgsby and r^rice, in the exchequer, country is found it was resolved that if a man whose place of served with a . , . . , , 1 ^ 1 . subpoena, he has residence is in the country be lound in town, oniyeightdaysto . answer. and there served with a subpoena, he is only entitled to eight days' time to answer, and not entitled to a * dedimus to answer in the country, because the time for answering depends upon the place where the subpoena was served ; for no man can gain to himself a new privilege by his change of habitation after the subpoena is served. The range of the court of chancery, for a The range of the subpoena returnable immediate, is ten miles, chequer fma sub- but that of the exchequer fifteen miles ; and greater than the , ,11 chancery, and the reason was because the chancery was am- why. bulatory with the King, wherever he was ; but the court of exchequer was settled at the re- ceipt at London, and therefore the court of exchequer took a further range within the compass of the settled jurisdiction than the ambulatory court did. * Commission. 44 POEUM ROMANUM. [Chap. IV. CHAPTEE IV. OF THE OKIGINAL BILL. Maranth. 308. Maranth. 266. Gail. 112. Gail. 132. Bill tiiesfime witii the canon- ists^ libel. Wb come now to the libel. And the modern libel of the canonists is formed from the libel, the positions, and the articles thrown into one, and now called *libel- lus articulatus for dispatch; for so many acts are not now necessary as were of old when the f litis contestatio was before the praetor, and the positions and articles before the judge ; and in this libel they conclude with ^clausulce saliitares sive salvantes, which pray relief of \\omni meliori ■ modo. To this libel the defendant puts in a negative answer, which is now reckoned a sufficient -flitis contestatio to proceed to proof upon , though anciently the manner was for the plaintiff to come in and briefly affirm his libel by way of replication. With us the bill is the libel, and the pray- ing of general relief, according to equity and good conscience, is in nature of the salutary clause, and the narrative part of the bill is in nature of the positions, and the interrogatory part in nature of the articles, and the prayer of relief is after the manner of the ancient libel. When the answer comes in, that is, the * The articles of the libel. ^ Salutary or saving clauses, method. t Contesting of the suit. |] Taking every better Chap. IV.] FORUM ROMANUM. 45 *litis contestatio, in relation to the bill, but whatntia eontes- ... tatio. the replication contests the answer, for it avers the bill to be true, and denies the answer ; but if no replication be filed, and the cause where no repii- ,1 1 -n 1 ,1 cation Is fliecl, be set down upon bill and answer only, the and the cause set 1 ,. . „ down upon bill answer stands tor truth, because if you do not ™d answer only, ^ ^ theanswerstands reply to the answer, there is no * litis contesta- <■<"■ '"'"i. tio in relation to it, and then it must be ad- mitted to be true. So if you file a replication, and do not serve a subpoena to rejoin, and on such subpoena to rejoin move that the defend- ant may examine his witnesses within a defi- nite time, or at least move without a subpoena to rejoin that the defendant may examine wit- nesses within a definite time, or that the cause may be set down upon the pleadings ; if neither of these ways be taken, and the cause be set down upon bill, answer, and replication, the answer must be likewise taken to be true ; because you do not assign a probatory term to Replication aione .-, T r T ^ 1 j.\. T i- 1 • , no litis contesta- the defendant, and the replication aione is not tio of the answer, a proper * litis contestatio of the answer, unless you join issue by assigning a probatory term to the defendant. When the ■freus was brought in to answer, cioss-biii. he was said to be convened, which they call ^conventio, because the plaintiff and defendant met to contest ; and since the defendant might likewise have demands against the plaintiff, he had liberty to exhibit a libel against him also, which they called \\reconventio. If the II reconventio came in before the * litis contestatio, then both causes went Xpari passu, * Contesting of the suit, f Defendant. | Convention. II Reconvention. % Together. 46 FORUM BOMANUM. [Chap. IV. and t..e same probatory term was assigned to both, and the same time given for publication ; Maranth. 91, 2, 3, but the defendant was to answer on the * con- ventio before the plaintiff was to answer on the t reeonventio, because the plaintiff first brought the defendant into court to answer his suit, £^nd the defendant's f reeonventio was only a superstructure upon it. But if the f reeonven- tio comes in after the § litis eontestatio, there both causes do not go \\pari passu, and there- fore it does not stop the plaintiff in the exami- nation of his witnesses ; but if the plaintiff be in contempt for not answering on the '\ reeonven- tio, there he is stopped from proceeding on his own * conventio, for he cannot proceed in that court when he has gone out of it, and must be Maranth. 267. attached to answer. But if the f reeonventio comes in after publication, it will stop the ' hearing till the plaintiff has contested it ; be- cause otherwise, if the defendant has a right, he cannot have a decree upon the plaintiff's libel. Our cross bill the Our law touching cross-bills, which is the conventio of^th^e f rceonventio with us, agrees in all things with this ; for if the cross-bill comes in before issue Cms. Cane. 41. joined, it goes ||part passu with the original bill ; but if it comes in after issue joined, it cannot go \\pari passu with it, and stops nothing till the plaintiff has incurred a con- No oross^bm after tempt ; but if it comes in after publication, it stops the hearing till answered, and the rather with us, because the defendant has a right to the plaintiff's answer upon oath ; but if such bill be filed after publication, nothing can be * Convention, f Reconvention. J Contesting of the suit. II Together. Chap. IV.] FORUM ROMANUM. 47 put in the issue upon it that was in issue in the original cause. The * tertius interveniens is the same with us Tertiua inter- as the interpleader, which in both laws is when pleader,' first to 1 . T ...... ~, remove plaintiff a third person comes to remove either plaintm or defendant. or defendant; as if a man as mortgager brings his bill against the mortgagee to redeem, and another person, who has a right to redeem, prefers his bill against both to remove the first plaintiff, and to redeem from the defendant; so if the mortgager brings his bill against the mortgagee to redeem, an alienee of the mort- Gaii. 127. gagee may bring his bill against both to remove the defendant, and to receive the money on the redemption. So a * tertius interveniens may come in to assist either plaintiff or defendant, as if there be tenant for life, remainder in fee, subject to a mortgage, and tenant for life, prefers his bill against the mortgagee to redeem, he in remain- der may prefer his bill to pay off his proportion, and be let into the redemption. So if there be a rent charge granted out of lands previously subject to a mortgage, and the mortgagee pre- fers his bill to foreclose, the grantee of the rent charge may prefer his bill against the plaintiff, to come in and assist the defendant, by tender- ing of the money, and to save the estate out of which his rent charge is to come; but then the * tertius interveniens must not collude with either, for he cannot intervene by collusion to embarrass another man's suit. There are other bills of interpleader like- what to be done wise, as when two persons claim the rents of inte^pleadiSf "° * Third intervening party. 48 FOROM ROMANUM. [Chap. IV. tenants, there the tenants may prefer an inter- pleading bill against both of them ; but then Praot.Eeg.iaCh. they must not Only file an afSdavit that they do not collude with either of the parties, but also bring the rents into court ; for unless there he a stake in a court of equity, they will not hinder the claimants, by their injunction, from proceeding at law. It must come in The * tevtius intervemens must come before oree. the decree, or else it is discretionary in the court whether they will stop the execution of it ; and they never do, where it can be made appear that the party knew that the cause was in contest, and yet stood by without claiming ; Gail. 128. for then, after a decree, such interposition is presumed to be malicious, in order to hinder the sentence. Where plaintiff When the plaintiff can and will make the makes tlie tertiua ^ . . . ^ jy ^ , ii i interveniens de- '^ tertius interveniens a deiendant, and thereby fendant, he must ni i- t • t dismiss his bill auswer all the purposes of his bill, there such by the rules of the ^ / ' court. third defendant will be obliged to dismiss his bill by the rules of the court. By the canon law the libel cannot be amend- ed '{post litis contestaiionem. This rule was exceedingly strong in the old Gail. 134. civil law; for the ^lif.is contestatio being before the prEetor, the judge had only a commission to hear that cause, and he could not alter or change it, and therefore he did not take the \\judicium to be Xceptum till the ^litis contestatio; but after the ^litis contestatio, they were supposed to be under ** quasi contractus to submit to the sen- *The third intervening party, -j- After contesting the suit. ? Contesting of the suit. || Judgment. J Begun. ** As it were an agreement. Chap. IV] FORUM ROMANUM. 49 tence, because they received the judges by agree- ment of both parties from the preetor. And though there was the same judge both for the * litis contestatio and the sentence in the canon law, yet they allowed the time for forming the libel to be only f ante litem con- testatam, and that ^post litem contestatam it comes too late ; for that would be to make another cause, which is not in contest. It is so with us, for a plaintiff may amend his bill before issue joined, that being the time for him to form the cause of complaint, and therefore he cannot have a supplemental bill before issue joined, because the first cause was but \\ in fieri; but after issued joined, he may file a supplemental bill with leave of the court, because the first is closed, but not without leave of the court, because he cannot bring a new matter into the same cause, so as to make it a part of it, without permission of the court. Exceptions Are threefold: declinatory, dilatory, and per- Exceptions are threefold. emptory. The first are such as decline the jurisdiction of the judge. The second are such as delay suits by excep- tions to the person of the Xacto?-. The last are such as **perimunt jus agentis, as a release, or former suit for the same matter determined, &c. The declinatory and dilatory exceptions are * Contesting of the suit, f Before the contesting of the suit. § After the contesting of the suit. || In being. J Plaintiff. ** Are a bar to the plaintiff's right. 4 50 FORUM ROMANUM. [Chap. IV. Maranih. 280, tit. regularlv put in * ante litem contestatam, for Except.; Corv. , ; « , , i i Digest, lib. 44, de they were before the prastor, as reasons why he should proceed in the cause to give judges. But the peremptory excep(tion might as well be put in before the prsetor, as a reason why he should not give judges, as before the judges, to preclude the plaintiff from all right of action ; and the method was, that if the peremptory exception was proved exceeding clearly before the prastor, he proceeded no further in the cause; but if the peremptory exception was doubtful, either in point of law or matter of fact, then he remitted it to the judges to determine it, since it was then proper that it should be put in judgment. What are called We have likewise exceptions, which with exceptions with n i • i i us. US are called either demurrers or pleas. First, of the declinatory ; and that is either a demurrer for want of equity in the plain- tiff's bill, or because his proper proceeding or remedy was at law. First, for want of equity in the plaintiff's bill; and this is properly a declinatory plea, because it hinders the plain- tiff from proceeding f inforo prcetorio. 2 Mod. 173. The second exception declinatory is, that the plaintiff's remedy is properly at law; and this is either where the plaintiff proceeds upon a certain demand, as upon a note or bond, or the like. There, if the defendant denies the note or bond, he may demur to the relief, because he is entitled to try the validity of the bond or note by a jury; but if the defendant confesses the note or bond, there he cannot demur to the re- * Before tlio contesting of the suit. -|- In the prjetorian court, or court of equity. Chap. IV.l FORTIM ROMANUM. 51 » lief, because, admitting the debt, he ought to pay it, and not proceed to litigate it in either *forum. But if the plaintiff comes in upon any deed into a court of equity, the defendant need not answer to the deed, but may demur oh.cas, 11,231. to the bill, urjless there is an affidavit of the s. p. ' ' loss of it, or unless the bill be merely for the discovery of it, to supersede the necessity of proof at law ; for whether it be the defendant's deed or not, is only determinable in an issue at law, because there was a fine to the King upon the defendant's denying his deed at law, if it was proved upon him. Whenever a man proceeds upon a bond or when affidavit , P , . IT , neeegsary to be covenant tor a sum certain, and does not annex annexed to a bin. an affidavit to his bill, it is a good cause of de- murrer, because, whether it is his deed or not, is properly determinable at law, where, upon such issue as hath been said, if it be found against the defendant, there is a fine to the King ; but if the defendant, without taking advantage of such demurrer, for want of an affi- davit, confesses the deed in his answer, there he cannot demur to the relief, because, confess- ing the deed, it is iniquitous to litigate it upon the issue of f non est /actum at law, and there- fore he has nothing to do but to pay the money, for it is contrary to conscience to contest it at law ; but if he denies the deed, he may demur to the relief, because he has a right to have it tried by a jury, whether it be his deed or not ; but if an affidavit be annexed of the loss of the deed, there, if he denies such deed, he cannot demur to the relief, because the relief is in * Court t Not his deed. 52 FORUM EOMANUM. [Chap. IV. equity, and not at law ; for the plaintiif cannot mate his proof at law without the deed itself, but he may make his proof in equity how the deed was lost or burnt, and proceed against the defendant for payment of the money. whennoaffldavit But if upon the deed there is ho relief at law, as if it be upon a trust, which is only determinable in equity, or for a specific execu- tion of a covenant, there the plaintiff need not annex an affidavit to his bill of the loss of such deed, nor will a demurrer be allowed for want of such affidavit, because his relief is not * in oMeno foro, and he could have no relief in a court of law upon such deed. ' 3Ch. Eep.»6; 2 But a distinction has since been taken, that Vei-n. 69, 180, 2«, if a bill be brought for discovery of writings in general, no demurrer can be to such bill for want of an affidavit annexed ; but if a bill be brought for the discovery of a particular deed or bond, for which there is a proper remedy at law, then they must annex such affidavit tO the bill, though it be but for discovery, because otherwise the answer would be but an unneces- sary expense. When defendant The SGCond sort of dcmurrer is where a may demur to the , . .„ . . ,• • ^ p -y bill. plaintift goes into a court of equity for dam- ages which are uncertain, and not to be set- tled but by a jury. There the defendant may demur to the relief, after having first answered to the damages, because it is '\alienifori, since the court cannot settle the damages. But this must be ^ante litis contestationem ; for if he an- swers and contests with the plaintiff, there he * In another court. f Another court's jurisdiction. J Before the contesting of the suit. Ohap. IV.] FOKUM ROMANUM. 63 can take no advantage of it at the hearing, for he has submitted to the jurisdiction of the court, and the court will try at law the quan- tum of the damages by a feigned action of * quantum damnificatus. So on the demurrer -\ante litis contestationem, if the plaintiff will go on for the damages confessed, the court will retain the bill ^quoad those damages^ allow- ing the demurrer as to any further relief. Secondly, the dilatory exception; and that Gaii. 134. is either the plea of outlawry or excommuni- cation, or demurrer-for want of proper parties. . As for outlawry and excommunication, they The piea of out- must be pleaded if ante litem contestatam, for '"^'^^' after answer the defendant admits the plaintiff a proper person to be answered to, and there- fore such plea would then come too late. But if an outlawry be not pleaded, yet it may be shown at the hearing, as a peremptory matter against the plaintiff's demands, if it be per- sonal, because it shows the right of the thing in demand to be in the King ; and so in the canon law, an excommunication might be shown at the hearing, because it is in the na- ture of an outlawry with them. But in this case, the defendant need not set down this plea. How to be piead- as he must other pleas and demurrers, in eight days, or they will stand overruled, but the plaintiff must set it down, if there be any in- sufficiency in point of form in pleading it, for being \\sub pede sigilli, it appears, upon show- in what cases do- ing, to be a good plea, and therefore is not set downhfs piea. presumed necessary to be argued before the *How much damage sustained. f Before the contesting of the suit. ^ As to. 11 Under seal. 54 FORUM KOMANUM, [Chap. IV. Outlawry in ex- ecutors, &c., no good plea, (iilb. Hist. Com. Pleas, 159. Demurrer for want of proper parties. Third exception, court ; but if the bill be for relief against an action at law, and outlawry be pleaded by the defendant in the same cause, it is a bad plea, because the outlawry is part of the grievance, and it is *exceptio ejusdem rei cujus petitur dissolutio. Jenh. Cent. 37. Outlawry in ex- ecutor, administrator, or guardian, or prochein amy, is no good plea, because they do not claim in their own right, and the real factor being the testator or infant, the outlawry in any third person is no exception against him why he should not § stare injudicio. Secondly. A demurrer for want of proper parties is an exception as to the defendant brought into court ; for if there be not a proper defendant before the court, there can be no de- cree, and therefore this is an objection as well against proceeding as at the hearing, for the defendant cannot be obliged to contest where there can be no proper parties for a decree, but such proper parties being added, the defendant may proceed. Thirdly, the peremptory plea. The first is \\lis pendens, which is a bill in another or the same court of equity, for the same cause; and this is certainly a good plea, and need not be set down ; and therefore the only question is, whether it be a true one ; and so the trial of the fact is to be referred to a master, to certify whether they be one and the same bill, or to the same purpose ; and then the bill must be dismissed, unless the plaintiff ob- *An exception to the same matter from which a discharge is sued for. i" Plaintiff. ? Be admitted to sue. II A suit depending. Chap. IV.] FORUM ROMANUM. 55 tains leave of the court to dismiss his former hill aad retain his second ; hut in that case he must pay the costs for dismissing his former bill, and for the plea as if allowed. The defendant cannot plead a suit depend- Defendant oan- . ^ ■/V.I !• ''°' plead a suit ins; at law in bar of the plaintiff's demands m depending at law *-' , ^ m oar of the equity, because the plaintiff has a right to the plaintiff's suit in ^ *' ' t' o equity, but after defendant's oath in equity to exonerate him "■"««'«': ,!?»''" ^ 'J may oblige the of the * onus prohandi at law; hut after the Pl^'^l^^jf^^™"'^^ answer is come in, the defendant may put the plaintiff to his election either to proceed at law or in equity, that he may not be doubly vexed. The next peremptory plea is, that the mat- second peremp- ter has been already decided or decreed in a court of equitj' ; and this is a good plea, hecause what has been already adjudged is not to be afterwards drawn into controversy ; and if the decree he enrolled, they may make a profert of if decree enroii- ■^ "^ "^ *■ ed, a profert may the record, without swearing the plea, because be made of the ' o X J record without the record itself is exhibited, to which there swearing the ' plea; but if not, can be no addition by the defendant's oath ; ™"s* "^^ ^iwom. but if it be in paper, so that it cannot be shown to the court, there the plea must he on oath, as in other cases. t But a iudgment at law is not Judgment at law ' •' ° no bar to a suit in to he pleaded in bar to a suit in equity, though equity. my Lord Coke and the common lawyers con- tended with my Lord Elsmere that it should, and that therefore the court of equity should not enjoin after judgment; but this was at last determined in favor of the chancellor, by a ref- * Burthen of proof. f See fol. 12 of the Jurisdiction of the Court of Chancery Vindicated, at the end of the first part of Chancery Reports, folio edition, where you will find this reference at large ; and see also Cary's Eep. 115; 56 FORUM ROMANUM. [Chap. IV. erence of the King to the attorney and solicitor general, that such a plea of a judgment at law- should not he allowed, for the judgment might be obtained contrary to conscience, and then the plea of such judgment would be, *exceptio ejusdem rei cujus petitur dissolutio. Jenk. Gent. 3T. Third peremp- The third peremptory plea is the stated ac- ory p ea. gQunt ; and if fraud be objected to such account, and to the stating of it, and all the circum- stances of fraud be answered and denied, such stated account may be pleaded, for that is not an *exceptio ejusdem rei cujus petitur dissolutio. For that which should destroy such stated ac- count is the fraud, and that is denied, and therefore such stated account stands proper to be pleaded against any unliquidated demand ; for otherwise no man would be safe in stating his account and delivering up his vouchers touching the particulars; and therefore the plaintiff who has the vouchers delivered up to him, which always ought to be part of the plea, ought to assign error in the account, which it is supposed he is able to do, having the vouch- ers in his hands whereby to make out such error. The plea of re- The pleading of a release is likewise a per- emptory plea, but the defendant must set out the valuable considerations upon which such release was made, otherwise fraud will be pre- sumed; for there can be no greater badge of fraud presumed than that the plaintiff should part with his property for nothing; and all * An exception to the same matter from which a discharge is sued for. Chap. IV.] FORUM ROMANUM. 57 otlier circumstances of fraud must be denied. When a release is pleaded, it must always be under seal, otherwise it is to be pleaded as a stated account only. The fourth peremptory plea is that of a pur- The fourth per- i- f J sr ^ t- emptory plea. chaser for valuable considerations without no- tice ; and here you must plead that your vendor was seized in fee, or that you believe and are advised that he was so at the time of the pur- ch. cas. 3' chase ; for if it be charged in the bill that the vendor was only tenant for life, or tenant in tail, and a discovery of the title be prayed, you can- not cover such discovery unless you swear a seizin in the manner already mentioned, or that such fines and recoveries were levied and suf- fered as would bar an entail, if he was a tenant in tail ; for if you should set forth a purchase by lease and release, that would pass no more from the tenant in tail than it lawfully may pass, and that is only an estate for the life of the tenant in tail, and then there is no bar against the right of the issue. In the next place, you must set out the purchase money ; for if you are not a purchaSer for valuable con- sideration, but are only a volunteer, that is no bar against a discovery. You must likewise plead the deeds of purchase, setting forth the dates, parties, and contents briefly, and the time of their execution, for that is the peremptory matter in bar ; and you must deny notice in the plea, otherwise you do not make it a complete equitable bar ; for if you had notice of the title, though you paid value for it, you are not a con- scionable purchaser ; and you must likewise deny notice in your answer, for that is matter 58 FORUM KOMANUM. [Chap. IV. of fraud, and cannot be covered with the plea ; and it must be denied in the plea, because otherwise there is not a complete plea in court on which the plaintiff may take issue. But all When peremp- thesc plcas with US are to be put in * ante litem tory pleas must . , . i ,t i i i be put in. cofitestatam, because they are pleas only why you should not answer, and therefore, if you answer to anything to which you may plead, you overrule your plea ; for .your plea is only why you should not contest and answer, so that if you answer your plea is waived ; but you may answer anything which is not charge'd in the bill 'fin subsidium of your plea, as you may deny notice in your answer, which you deny also in your plea, because that is not putting anything in issue which you would cover by your plea from being put in issue, but it is adding by way of answer that which will sup- port your plea, and not an answer to a charge in the bill, which by your plea you would de- cline. Arnold's Case, 30^/t May, 1^23, in the Exchequer. Plaintiff's lessee^ brought a bill against the heir and executor of the lessor to establish his lease, suggesting that such heir claimed by a marriage settlement, and to' have recompense on the covenant for further assurance out of the assets. The defendant pleaded the mar- riage settlement, to which the ancestor was only tenant for life, with a remainder to him in tail, with a power in the ancestor to make leases at the best improved rent, and demurred to that part of the bill that prayed relief out of * Before the contesting of the suit. fin aid of. Chap. IV.] FORUM BOMANUM. 59 the assets, because it was matter determinable at common law, and founded only in damages. But the plea, though allowed to be good in substance, was overruled, because it was plead- ed in bar of what was afterwards answered unto, which covers that part which he submits to answer unto from all manner of exception, even if the answer was equivocal and defective. Therefore, the plea, though good in substance, was informal, and the demurrer was. bad, be- cause it covered the answering of the assets, and likewise the making a compensation by way of specific performance, which was the proper business of the court of equity. The notice denied in the answer and the Danv.771, p. e; plea must be a denial of the notice at the time 3s,'p.'8;'334,'p. s.' of the execution of the deed, not at any time Fieem.irs' before. For if the purchaser had notice before the execution of the deed, he ought not to have proceeded in his purchase ; and he ought also to deny notice at the time of the purchase money paid, if such notice be charged on him by the bill ; for though the deeds be executed, he ought to have held his hand, and not paid his purchase money, with notice of another's right.; but the payment of the purchase money is the last period of time in which notice can affect a purchaser. If tenant in tail makes a mortgage or con- veyance for valuable considerations, and after- wards gives the deed of entail into the hands of the mortgagee or purchaser, or the heir in tail takes up more money from the mortgagee, and delivers him the deed of entail, here, if the heir in tail exhibits his bill to have the deeds 60 FOBUM ROMAN UM. [Chap. IV. of the defendant, though he cannot plead that the mortgager or vendor was seized in fee, be- cause it appears by the deed of entail that he. was tenant in tail only, yet he may say by an- swer that the mortgager or vendor pretended to him that he was tenant in fee, and that he believed and was advised so at the time of the mortgage or purchase, and insist that he should not be obliged to deliver up the deed to the plaintiff, or to discover whether his ancestor was tenant in tail or not. But if the ancestor was tenant for life, with a remainder to the son in tail, upon a marriage settlement, and made a mortgage, and he in remainder makes a sec- ond mortgage, and delivers the deed, he shall not be obliged to pay off the first; but the mortgagee must discover the title, and deliver up the deeds upon payment of the second mort- gage only. And the reason of the difference is this, that the tenant in tail being master of the estate, is likewise owner of the deed, and there- fore, having pledged the deed as well as the estate for money, the issue in tail cannot have the aid of a court of equity to have up such deed unless he pay the money ; but in the case of the tenant for life, there he had only a partic- ular property in the deed, and was not master of the estate, so as to bar it, and therefore the court of equity will make him deliver the deed to the person who was the prior purchaser upon valuable considerations, that is, the re- mainderman in tail. The fifth peremp. Fifthly. The («) statute of frauds and per- torv dIgei " \ ^ 17 [a) 29 Car. 2, o. 3. juries and that (b) of limitations are peremp- (.i) 21 Jae. 1, 0. 10. " , ■,,■■,■,. , „ , . tory pleas ; but in pleading the statute of lim- Ceap. IV.] FORUM ROMANtIM- 61 itations, a man in his answer must say that he has paid his money, because otherwise a court of equity supposes a trust between the plaintiff and the defendant, and that the money is a * depositum in the hands of the defendant for the benefit of the plaintiff, and the statute statute of limita- «,. . . - ^ tions does not 01 limitations does not reach trusts. leaoh trusts. Sixthly. The plea of fine and non-claim. The piea of fine •^ ^ and non-claim. And here it is first to be observed that such plea py"" "- ^'"y- ^ Danv. 760, p. 9 ; will bar any title in equity as well as at law, J""^^^ g"; ^^^^^ and is a good bar thereunto ; as if ^. has lands *^''- ^^^- ^'*- in trust for B., and C. enters upon him, and levies a fine, with proclamations, this will be a good bar to JS., the cestui que trust, as well as to A., the trustee, because they are both within the same statute ; for C. has an opposite title, both as to the trustee and cestui que trust, 2 Freem. Rep. 21; ' ^ . ' 2 Inst. 518; Good- and there was no greater wrong to a cestui que eneit «. Brown, ,.,, ,1,- ■ Danv. 761, p. 5 ; trust than to him who has the legal interest in Eq. Abr. 255, p. i,- ° Oh. Cas. 49i 2 him, for a disseizin ousts them both; and yet, vem.se. for the repose of men's inheritances, a fine and non-claim bar them both; but then G. must deny that he claims from A., or if he does claim from A., he must deny that he had notice of a trust for B. For if C. claims from A. there are two cases in which the fine and non-claim would not bar. First. If the fine was levied from A. to O. Vem.gs. without consideration, there, since ^. was under a trust, his conveyance to O. was under the same trust. So if ^. levies a title to C, and C. hath notice of the trust to B., there the fine and non-claim is no bar ; because the convey- * Deposit. 62 FORUM KOMANUM. [Chap. IV. anee by the fine is under the same trust, and therefore cannot be set up as a bar to it ; so that, whenever any person is charged as claim- ing under the trustee, he must either set up his opposite title or deny his claim as trustee, or else, if he claims tinder the trustee, he must set forth the consideration, and deny the notice, to show that his fine was not for- feited by the trust, for if it was, the fine and non-claim can be no bar. So it is when a man claims under a con- veyance obtained by fraud. It only gains a legal title; and a trust arises to the right owner, to whom restitution ought to be made; and therefore, if such purchaser by fraud levies a fine with proclamation, such fine is no bar, because he himself held the estate under a trust to restore it to the right owner ; and the fine itself is no more than a corroboration of the title, which was under the trust, and not an opposite title to it. So if he who comes in under a fraudulent con- veyance sells by fine for a valuable considera- tion, and without notice of the fraud, it is an opposite title, and the fine and non-claim may be set up as a bar. But if he sells by a fine without considera- tion, or with notice of the fraud, though upon consideration, the trust stilU continues ; and therefore, where a man is charged to claim under a fraudulent conveyance, if he pleads a fine and non-claim, he must in this case like- wise either deny his claiming under the per- son committing the fraud, or if he does claim under him, he must set forth that he comes in Chap. IV.] FORUM ROMANUM. 63 for valuable consideration, and without notice of the fraud. Secondly. If the equity or trust be created ch.cas. 278, saiis- by the fine, that fine and non-claim shall never "'^''' *^^° bar the equity that it created ; for this is not an opposite title, but a title created by the fine, so that it cannot bar the trust that was annexed to it, and under which trust the cestui que trust held it. If a man answers all the allegations of the when the relief bill, he cannot demur to the relief, because he de'murrKd to. has put all the allegations in judgment, and each fact is contested by his answer ; and there- fore the relief, which is but a consequence of those facts, cannot be demurred to, but are proper to be determined at the hearing. The exception is, among the civilians and canonists, *loco responsionis, and so among us, the plea comes in instead of the answer, to so much as it covers, and therefore must be over- ruled before the defendant is to answer, because he is not to contest in the cause as to that mat- ter which he covers, while he insists that it is . not to be put in issue ; and therefore, where the plea is informally pleaded, and yet is a good cover in equity to a part of the bill, the court often reserves the benefit of it to the hearing; and then that part of the bill which is covered by such plea is not to be answered. You may not plead and demur at the same time to the bill, on the same point of the bill ; because, if the demurrer be overruled, the de- fendant must answer, and cannot have the ben- efit of his plea; for the court, upon overruling * Instead of the answer. 64 POEUM ROMANUM. [Chap. V. his demurret, does of course rule that the de- fendant should contest and answer. CHAPTER V. THE OTHER PROCESS OE THE COURT, AND OF PROCESS AGAINST PEERS. ( The bill was originally before the issuing of the subpoena, and was a petition for it. 4 and 5 Ann. cap. And there being a deviation from this prac- ' ^^°' "' tice that proved burthensome to the subject, it is enacted by the statute for the amendment No subptena un- of the law that uo subpcKua or process for ap- ififbiii^fiied.'^^"^ pearance should issue till after the bill is filed with the proper officer in the courts of equity, unless in case of bills for injunctions to stay waste, or to stay suits at law, and a certificate thereof brought to the subpoena office, under the hand of the six clerk. Subpoena to at- The subpceua is to attend the extraordinary dlSar^yruri^dfc""^ jurisdiction, to answer the complaint of the ''°°' bill ; and not to appear at the return of the subpoena, is a contempt of that jurisdiction. When letters to Ahoiit the l&th oi Elizabeth they introduced Introduoed, and the practice of Writing letters to the peers, be- fore they issued a subpoena, upon presumption that a peer would pay obedience to the mere letter of the chancellor ; or else it was founded on a respect that they thought due to the peer- age, engaged in public affairs, that they should Chap. V.] FORTJM ROMANUM. 65 have notice before the process issued; espe- cially because, having a numerous attendance, it might be inconvenient that they should incur a contempt from a process served in the common method, by leaving it at their houses with one of their servants. If a lord doth not appear upon the letter, a subpoena upon motion is to be awarded against him, because no subsequent process can be formed but upon a contempt to the great seal, which is the royal authority, and the contempt will not arise merely from the chan- cellor's letter, which is *ex gratid, and there- fore, if he did not appear on the letter, the subpoena issued. 3 Selden, 1543; 2 Fent. 342; Banv. Abr. Y76. If, on the service of the subpoena, the peer doth not appear, or, if he did appear, and did not put in his answer, they anciently issued an attachment; but the attachment was con- demned in the 14th of Elizabeth in parliament, and' resolved that no attachment lay against the person of a peer, because his person can- not be imprisoned. After that they proceeded against peers by sequestration, and therefore the motion is for a sequestration unless cause. And this was regularly made upon affidavit of the service of the letter and subpoena, though sometimes it is moved without ; since the peer may show want of service at the day assigned to show cause why the sequestration should not issue. And the order for the sequestration is never made absolute, without an affidavit of the service of the order to show cause, and a certificate of no cause shown. *Out of favor. QQ FORUM ROMANUM. [ChAP. V. A bill being filed against a peer or peeress, the first application is for my lord chancellor's letter missive, not in term time, or it may be immediate, (if the peer or peeress live in town ;) but in this case there must be an afiidavit that the original letter is left with the peer, or at his house, with the copy of the petition as an- swered, and therewith is also left an office copy of the bill, signed by the six clerk, (for if the bill is not signed, the service is irregular.) This letter is only a compliment. It is not process to found proceedings upon, and the peer may appear or not, as he pleases, upon service of the letter. If he appears, it is well; if he fails, a subpoena is sued out against him, and his time for appearing and answering being out, an attachment must be actually sealed and entered against him (though never 2Ch. cas. 163. exccuted) to ground a sequestration upon. It is a motion of course for a sequestration upon an attachment for want of an answer. The peer must be personally served with this order^ ^nd he hath eight days to show cause, after personal service of the order : if no cause, the order is absolute. But if the sequestration is for want of an appearance, and he appear, the plaintiff must run the same race over again for want of an answer, and the peer must pray time to answer as other suitors do, though he is generally in a worse case, because of privi- lege, (especially where it has been stood upon.) The same proceedings are had against a mem- ber of the house of commons. There the party proceeds by way of sequestration, only with this difference, that, instead of a letter, there is al- Chap. V.] FORUM ROMANUM. 67 ways a subpoena sued out ; and when a cause, either against a peer or a commoner, stands in the paper, and is called, and the court cannot proceed, (privilege being in,) the court never strikes it out, as they do in other cases where the party is not ready. They let it stand over from one term to another, till privilege is out, and never put the party to issue out a new sub- poena to hear judgment ; and the direction of the court to the register generally is, to put all privileged causes (which have been put off on that account) the very first causes in the paper when the court sits after privilege is out; and if this should he otherwise, it often falls out that the plaintiff (where the peer or commoner makes default at the hearing) cannot make his decree absolute till the coming in of privilege a second time, which the court always takes care to avoid. If, in an injunction cause, where the subpoena when derendant is discliArccd ■ issues before the bill filed, if the bill is not filed with costs. on the third day after the return of the subpoena, the defendant is discharged with costs, because there is nothing for the defendant to appear to answer to, and therefore he must be discharged from his attendance, with the costs that arise from such unnecessary vexation. The costs usually taxed are ten shillings, un- less, upon affidavit, the court think fit to refer it to a master, by reason of any extraordinary charge and trouble arising to the defendant ; and for such costs the defendant may have a subpoena commanding payment. For though the plaintiff hath abused the process by taking oat the subpoena without bill, yet he shall not 68 FORUM ROMANUM. [CHAP. V. be forthwith attached, as for a contempt, be- cause the original subpoena is presumed to issue upon a bill filed ; and therefore, since the court thought fit, * ex gratia, to relax that practice, the plaintiff is not in contempt till he disobeys the order which commands him to pay costs, and, by consequence, he must have notice of that by a subpoena. The original subpoena is a summons to the party himself that is defendant, wherefore not to appear thereto is justly accounted a con- ' tempt of the court ; and in such case an attach- ment issues to the sheriff to take him up. In this the chancery process differs from the pro- cess at common law. For there the writ^ or common 'f capias, which is in the nature of a summons, is directed to the sheriff, and the sheriff anciently made his return upon it either X summoneri feci or § nihil hdbuit in balliva mea per quod summoneri possit. Here the plaintiff mates affidavit of the service of the subpoena, and files it at the affidavit office, and then the attachment issues of course under the great seal, because the summons is in the nature of an order to attend the extraordinary jurisdic- tion, and all other process issues on a supposi- tion of disobedience thereto ; but if the sum- mons had issued to the sheriff, it had been only a contempt showed to a ministerial officer in not paying obedience to him, and not to the court itself. Besides, at common law, if a writ were directed to the party himself, that might * Oat of favor. f A writ bo called from the word take, the emphatical word in it. J I have summoned. § He Lad nothing in my bailiwick whereby he could be sumiraoned. Chap. V.] FORDM ROMANCM. 69 liave been smothered, and it would not have ' laid any foundation for any other court to pro- ceed upon it. But when the power of the justi- ciar was broken, they gave the chancery a power to issue the writs, arid the other courts author- ity to proceed upon them, and therefore these were necessarily directed to the sheriff, that they might be returned to the other courts. But in the chancery and exchequer, where the same courts issued the process where the appearance was to be, the first process was directed to the party, that it might be left with him, or at least a copy of it, to make the party more ascertained of the time of his appearance. ' When the subpoena is served, and affidavit made of it before a master in chancery, or before a baron in the exchequer, if the party does not appear, an attachment issues of course, but if the party appear, they must show the affidavit to the clerk in court, and if the answer does not come in, then an attachment issues of course. Upon an attachment there are two returns. Two returns on .^, ^ . . . 1 • 1 J.1 an attachment. either *non est inventus, upon whicti the pro- Note, if the shei- . , „ , , itf does not make clamation issues oi course, or icepi corpus, his return, he ^ 7 shall be amerced. If fcepi corpus be returned, the next step is to Gary's Rep. 44,77, move for an ^habeas corpus, to bring up the body, if he will not answer below, for the sheriff has executed the command of the writ of attachment by taking the body, and he cannot carry him out of the county without the command of the King ; and if he should * Is not found. i" I have taken the body. 2 Have the body, a writ so called because those words, have the body, are an emphatical part of it. 70 PORUM ROMANUM. [Chap. V. carry him out of the county without the King's writ, it would be an escape upon the * habeas corpus. They amerce the sheriff if the body he not brought in. But in London and Bristol, where the fines and amercia- ments belong to the corporations, they imme- diately move for a messenger, and this messen- ger being the immediate officer of the court, takes the body, by order of the court, without making the sheriff liable to an escape, upon the King's writ, because he is removed by order of the court, and in possession of the court, by its messenger. In the exchequer there is a rule given of four days to bring in the body, that the de- fendant may do it at his own charge, if he pleases, by an * habeas corpus, purchased by himself; and if he does not remove himself within those four days, then a messenger will be awarded upon motion, and this is by a par- ticular prerogative of the court of exchequer, that the plaintiff, who is the King's debtor, may not be delayed. Attachment with If fuon cst invenitus be returned upon the proc ama ion. attachment, then an attachment with procla- mation issues. After contempt, After a coutempt duly prosecuted to an at- for answer nor tacliment, with proclamation returned, no com- plea or demurrer . , admitted but on mission to answer shall be granted, nor any motion in court, . and affidavit of plea or dcmurrcr admitted, but upon motion the party's m- -^ ' r ability to travel, jq court, and affidavit made of the party's ina- bility to travel, or other good matter to satisfy the court touching that delay. * Have the body, because those words, have the body, are an emphatical part of the writ. \ Ib not found. Chap. V.] FORUM ROMANUM. 71 The reason why, upon the first contempt on the attachment, they allow a commission to issue, or a plea or demurrer to be. put in, is because it does not appear to be an affected delay, and therefore, upon tendering the costs of the attachment, the defendant may take his commission, and upon like tender the plea and demurrer are to be received. But if there regularly issues an attachment with procla- matioif, the defendant cannot of course purge his contempt by a mere tender, but he must apply to the court, to show that his plea and demurrer are proper, and to exhibit a proper excuse for his delay, that the court may see that there is no further likelihood of delay by the plea or demurrer put in, or by the commis- sion to answer granted. Note, that the form of the attachment being * ad respondendum de conteinptu per ipsum nobis illatum, et ad faciendum ulterius et recipiendum quod dicta curia consideraverit, he must answer as well as clear his contempts a.t the same time. But the usual way is not to take the penalty, which is no more than for the clear- ing his contempt, till he hath answered. For when the penal sum is received, the defendant may reasonably say that the fault is purged, and so there would be no sufficient foundation to retain the party or carry on the process, in case he will not answdV; and therefore the usual way is for the plaintiff to insist that the defendant should answer; but the answer will not be received without clearing his contempts. * To answer the contempt he has been guilty of, and fur- ther to do and receive what the said court shall think proper. 72 FORUM ROMANUM. [Chap. V. The attachment at common law was twofold, by the goods or by the body. In all debts the attachment was by the goods, because the debt was only a chattel, and therefore only chattels were liable, and the * capias was brought in the action of account by statute [Marl. cap. 23.] on '\niJiil returned on a summons. But the attachment by the body was only for crimes, the least of which was against the public peace, or was a contempt of the court, and for these a man's person was naturally liable. For though a debt at law made only a chattel liable, because the lender trusted to his Daiton's Sheriff, debtor's chattels Only, yet a crime made the subject's body liable, because the prince was thought to have a property in the body of his subjects, to serve him in his wars, to attend his courts in peace, and to call them to answer for offenses against the laws. Theproeiama- The next process is the proclamation. This For the form, see is a process issuiug out of the extraordinary Ear. Chan. Praot. . . \ ° t ■ , <. j 297, 298. jurisdiction upon a §nore est inventus returned, commanding the party to appear in chancery, ||sm6 pcend legiancioe. Now, where §wora est inventus was returned on a *capias issued in criminal matters, they proclaimed the party, and if he did not come in on such proclama- tion, he was declared an outlaw. So, if he contemned the extraordinary jurisdiction, he was proclaimed, and if he was not taken, or did not come in upon such proclamation, then he was deemed a rebel, and thereupon a com- * See before, p. 68, in notes, f Nothing. ? Is not found. II Upon forfeiture of his allegiance. Chap. V.] FOBUM ROMANUM. 73 mission of rebellion issued, which is the next process. A commission of rebellion is a particular com- mission, directed to commissioners, *conjunctim and ■fdivisim, commanding that ^ A. B., ubi- cunque inventus foret infra regnum Anglice, tanquam rebellem et legis nostrce contemptorem attacliias seu attachiari facias ita, &c. It hath been doubted whether, upon an at- Door nannot be tachment or proclamation, the sheriff may an attaehment, break the doors or not. Some have held that the intent of the writ is to go no further than a common '^capias, and that it would be very inconvenient that the sheriff's officers that exe- cuted common process, should have by this writ an authority to break into a man's house, and that his house should not be a protection to him. Others have held that the writ is Xpropter contemptum nobis illatum, and it being Difference of the ^ -__. , , . . ._ process at the in the King s case, there is no privilege or pro- suu of the icing , ,, -r^. -r. 1 or in outlawry, tection against the Kings process. But the and at the suit of ,, a common per- true reason of this doubt, both in Dalton and son. ' 3 Danv. Abr. 302, Crompton, arises from the not understanding gro^'feif "nn's."?*' the true nature of process, and the reason of^l■^^^^^j''■'^^'' Semain's case. For, doubtless, upon an attach- ment or proclamation, the sheriff cannot break the doors, and the difference as to this matter is, that where there is only authority in a pro- cess to take the person or levy the debt, the sheriff can go no further, because his writ * Jointly. f Separately. § You attach, or cause to be attached, A. B., wherever he shall be found within the kingdom of England, as a rebel and contemner of our law, so that, &c. II See before, p. 68, in notes. J By reason of the contempt committed against us. 74 FORUM ROMANUM. [Chap. V. gives him no further authority; hut in the King's case, or in the case of outlawry, there are the words *non omittas propter aliquam libertatem, and therefore such writ gives au- thority to break the house. Besides that, in the case of outlawry, no man shall receive pro- tection from the law of which he is declared a violator, and therefore the seizing him as an outlaw doth imply the liberty of entering and seizing him wheresoever he lies hid. But it may be asked why, in the common case of a con- tempt, the process was not so formed as to give authority to sheriffs to enter the freehold? The reason is — Reasons why First. Becausc the very notion of fliberum tempt.'cannor"" tenementum is that the tenant shall be freed by orente°'freei°oid. the law from all actual violence. For that cannot be said to he held freely, if the lord that had a right to distrain, or the sheriff that was to serve the ordinary process, had a power to enter by force. And if the lord was not permitted to enter with actual violence, where he had a right to his rent, the sheriff could not be allowed to enter by force to serve the ordi- nary process. Secondly. Because, in the times when ten- ures were in their full height, it was thought too severe that the lords that had generally demands upon their tenants should break into their houses, since the violence of such a pro- cess in the first instance might compel them to pay more than was due. Thirdly. Because the party might be ready *That you do not omit by reason of any liberty. ■|- Freehold. Chap. V.] FORUM ROMANDM. 75 and willing to answer the demand ; and there- fore it is too severe to extort that hy violence, when it doth not appear hut the party is ready to pay. Fourthly. The whole process of a county must he served by the sheriff ; but the law must, in a case of this kind, take notice that it could not he served by the sheriff in his own proper per- son ; and it were too much to lodge such a dis- cretionary power in the deputy of a minister, to violate men's houses in the execution of a process in the first instance. Note, that the liberty of men's own houses seems to be a matter very much contended for from the conquest till the settling of * magna cliarta. For the conqueror carried his en- deavors to restrain men from the freedom they had been used to in their own houses. And therefore, in the times of Henry the third, under the protection that the law gave to houses and castles, they used to shelter unlaw- ful distresses, which were therefore inconveni- ences provided against by the stat. of Marl- bridge and Westminster. 2 Inst. 139, 193. From this digression we return now to the Houses maybe • • J? 1, IT A J j-i, -J.- 1 ■ broken open on a commission oi rebeihon. And there it is plain commission of ^ ^ rebellion, and that the commissioners may break open a house, why. because the words of the writ are that they shall attach the party "[tanquam rebellem et legis nostrce contemptorem ; and therefore this is within the reason of the process of outlawry. For when you are to take the party as a con- Daiton's sheriff, temner of the law, the design of the writ is crdmpton,47. * The great charter. | f As a rebel and contemner of our law. 76 FOEDM ROMANUM. [Chap. V. that he should not be anywhere protected by the law ; and therefore it implies an authority to enter into the house. Commission of And this is indeed the reason why this pro- rebellion issues ■ t i • • t j.i to commission- oess 18 directed to commissioners under the ers, and wliy. broad seal, and not to the sheriff; because the sheriff cannot be supposed to execute all such process in person, and it may be inconvenient to trust so great a power with the deputies of the sheriff's nomination ; and therefore this court appoints its own commissioners, who are entrusted to do everything very carefully, and are answerable to the court for their miscar- riages. The next process The uoxt process after a commission of rebel- to a commission ,.. ,, »i,i,> at of rebellion. lion IS a sergcaut-at-arms. And that is granted on the return of *non est inventus upon a com- mission of rebellion, upon motion in court. The reason why this process is obtained upon motion is, because there is nothing to issue under the broad seal, so that since there is no process under the seal to make it a record of the court, there must be an act of the court to send the sergeant-at-arms. Why a sergeant- But here it may be required why there must at-arms is sent. ■, . , y* ii ■ j_ jy it be a sergeant-at-arms, after the return ot the commission of rebellion, before a sequestration can issue ; and th6 reason seems to be, because the court will not issue a process upon the whole lands and goods of the defendant till one of its own officers see that the defendants do totally disappear. And therefore the return of the sergeant-at-arms is particularly recited in the sequestration ; wherefore the sequestration doth * Is not found. Chap, v.] FORUM ROMANUM. 77' not issue on the return of the commission of re- bellion, because the commissioners are of the plaintiff's own nomination. We come now to consider the last process, what is the last I'l'i • t 1 ' • 1 process, which IS the sequestration : and this recites the see the form in . - ,1-1 Hnr. Praot. Chan. certificate or the sergeant-at-arms, that the de- soo. fendant had secreted himself, and then gives authority and power to the sequestrators to enter the manors, lands, and tenements of the defendant, and of taking and possessing all his real and personal estate. Great was the strug- gle between the ordinary and extraordinary jurisdiction before this process came to be set- tled ; for in the case of Blagrave v. Watts {a) (a) see before,?, they adjudged such commissions to be against the rules of the common law ; for that the court of conscience had only remedy *in personam, and not \in rem, and that the court might com- pel the defendant by imprisonment to perform the decree, but could not touch his estate. And the chancellor, in the cause of Colston v. Gard- ner, (6) cites a case where they ruled it, that if (« 2 ch. cas. 43. a man killed a sequestrator in the execution of such process it was no murder. But these were such bloody and desperate resolutions, and so much against common justice and honesty, which require that the decrees of this court, which preserved men from deceit and fraud, should not be rendered illusory, that they could not long stand. And this process got the bet- ter of those resolutions on this ground : First. That the extraordinary jurisdiction might punish contempts by the loss of estates, as well as imprisonment of the person. Be- * Against the person. f Against the estate. 78 FOKUM ROMANUM. [Chap. V. cause, that liberty being a greater benefit than property, if they had power to commit the per- son, they might as well take from him his estate,- till he had answered his contempts. Secondly. To say that a court should have a power to decree about things, and yet should have no jurisdiction *in rem, is a perfect sole- cism in the constitution of the court itself. When a person moves for a sergeant-at-arms upon a commission of rebellion returned, and when this motion is made, the commission of rebellion is always produced, and is in the hands of the gentleman who makes the mo- tion, he delivers it into court, and it is left with the register ; and upon ■fnon est inventus returned by the sergeant-at-arms, the plaintiff's counsel moves thereupon for a sequestration against the defendant, directed to commis- sioners therein to be named, to sequester the personal estate of the defendant, until he shall appear and answer the plaintiff's bill, clear his contempt, and the court make other order to the contrary. The duty of se- The Commission of Sequestration being sealed, the sequestrators therein named (the plaintiff having the naming of them) proceed to seize and sequester the real and personal estate of the party against whom the commission of sequestration issues, and these commissioners are demeanable to the court, and are to act from time to time in the execution of their office, as the court shall direct. They are to account for what comes to their hands, as all other suitors do. They are to bring the money * Against the estate. f Is not found. queatratoi'S. Chap. V.] FORUM ROMANUM. 79 into court, as the court shall direct, to be put out at interest, or otherwise, as shall be found necessary. But this money is not usually paid to the plaintiff, but is to remain in court till the defendant hath appeared or answered, and cleared his contempt, and then whatever hath been seized by the sequestrators shall be ac- counted for and paid over to him. However, the court hath the whole under their power, and may do therein as they please, and shall be most agreeable to the justice and equity of the case. The plaintiff's counsel may move and ob- tain an order for the tenants to attorn, and pay their rents to the sequestrators, or for the sequestrators to sell and dispose of the goods of the party, and keep the money in their hands, or to bring it into court, as shall be miost advisable and fitting, at the discretion of the court. Where the sequestrators seize the real estate Examinations • [, .-. , , , , T , pro interesse suo, 01 the party, any tenant or other person who when necessary, claims title to the estate so sequestered, either occasion used. by mortgage, judgment, lease, or otherwise, or who hath a title paramount to the seques- trator, shall not be obliged to bring a bill to contest such title, but he shall be let in to con- test such title in a summary way, viz : he may move by his counsel (as of course) to be exam- ined *pro interesse suo, and in this case the plaintiff is to exhibit interrogatories, in order to examine him, and for a discovery of his title to the estate, and he must be examined on such interrogatories accordingly, and the mas- * Touching his interest. 80 FORUM ROMANUM. [Chap. V. ter must state the matter to the court, and the parties may enter into proof touching the title to the estate in question. And when the master has stated the whole matter to the court, it proceeds to give judgment therein upon the report, and if it appears that the party, who is examined *pro interesse suo, hath a plain title to the estate, and is not affected with the sequestration, then it is to he discharged as against him, with or without costs, as the court shall determine upon the circumstances of the case, and so fm'ce versa; and there may happen other circumstances and proceedings upon a sequestration which cannot fall within the general rule here laid down, and which must he determined, accord- ing to the nature of the case, as it appears to the court. Hitherto we have been speaking of the pro- ceedings before and after sequestration, for want of an appearance or of an answer. And now we are to proceed to see how the case will be where an appearance is entered and no an- swer put in. What, process is- The Several processes of subpoena, attach- sues without mo- , -, . . pin- -i . tion. ment, and commission oi rebellion do issue without motion ; because the clerks of the office, when there is an affidavit made of the service of the subpoena, know whether there is an appearance or not, such appearances being formerly entered by the six clerks in their own books, and the defendant not appearing upon the return of each p'rocess, is the war- rant for making out of the other ; but the last * Touching his interest. f Contrariwise. Chap. V.] FORUM ROMANUM. 81 prerogative processes, that is, tlie sergeant-at- arms and the sequestration, are only granted upon motion, because it must appear to the what process on court that the common ministers of justice were not able to take the party before they shall recur to this extraordinary method. But here we must note the difference be- The diflferenoe , between a capias tween a * capias and an attachment. Upon ™d an attach- , , . ment. jcept corpus returned upon a * capias at law, they amerce the sheriff if he does not bring in the body, upon the statute Westm. 2, cap. 39. § Et prcecipit Dominus Bex, quod vicecomes pro liujusmodi falsis responsionibus semel et iterum {si sit necesse) per justiciarios castigetur, et si tertio deliquerit, alius non apponat manus quam Dominus Rex. And this is upon the words of the * capias, which are \\ita quod habeas corpus soo. 40; Daiton's ejus coram nobis ad respondend. A.- W . de no, placito transg. sup. casum.. So that the com- mand of the writ is not obeyed unless he hath the body ready. In an attachment the form of the writ is, Xita quod habeas ejus corpus ad respmidend. * A writ so called because ihe word take is an emphatical part of it. f I have taken the body. 2 And the Lord the King commands that the sheriff be again and again (if there is occasion) punished by the justices for such sort of false returns ; and in case he offends a third time, that no other person than the Lord the King lay hands on him. II So that you have his body before us to answer A. W. of a plea of trespass on the case. % So that you have his body before us to answer us, as well of a certain contempt by the aforesaid A. B. against us com- mitted, as is said, as what shall be then there alleged against him ; and further to do and receive whatever our said court shall think proper in this behalf, and that you do by no means omit it, and have there this writ. 6 82 FORUM EOMANUM. [Chap. V. nobis tarn de quodam contemptu per prcefat. A. B. nobis illat. ut dicitur; quam super Mis quae illi tunc ibid, objicientur, et adfaciend. atque ad ulterius recipiend. qucecunque dicta cur. nostra in liac parte consider averit et hoc nuUatenus omittas, et habeas ibi hoc breve. By which words it should seem they might amerce the sheriff for not bringing in the body, as they did upon the * capias at common law. But because the writ was originally founded upon a contempt, it seems that when the sheriff has taken up the body he has paid obedience to the writ, though he does not actually bring him up to the court ; because the contempt only in- duces a commitment, which is satisfied by im- prisonment in the county jail. And the stat. of Westm. 2 only relates to original and judi- cial writs, and not to these prerogative pro- cesses, and therefore they issued an '\ habeas corpus, which is an undoubted writ within the statute, upon which it is proper to ground an amercement. How the appear- If the court more than once give time to an- ance with the hit ^ t n i register diflei-s swer, thev generally oblige the defendant to from the one in , . ■ i i theofflceofthe enter his appearance With the register, which SIX cierlr. In the ^ ^ o j first, the defend- jg an appearance upon the record of the court, ant appears as on i i. i ? aSd°^*'heother'is ^^^ '® different frotu au appearance in the office upon a subpcena. ^y ]^jg clerk in court ) for the appearance by a clerk ia court, and going away without answer- ing, is only a foundation to issue process, and there is no record of such appearance, for the defendant's clerk only gives notice for the plaintiff, which he enters in his book, that the defendant appears ; but when he enters his ap- * See before. f See before, p. 70. Chap. V.] FORUM ROMANUM. t 83 pearance with the register, and does not answer, it is a departure in despite of the court, upon which the court may order an immediate com- mitment, since this is not merely a contempt of the process issuing, but to the. court itself, to which he appeared and hath not answered. The entering an appearance with the regis- ter differs from appearing by the clerk in court ; for when a man appears by his clerk in court, he appears as upon a subpoena, and therefore Appearance upon "■ '■ '■ -^ an attachment appears as not in contempt. But when a man yvith the register, '^'^ '^ . If the defendant enters his appearance with the register, he ap- f„°fou °^^°™®'' pears as upon an attachment, and then appear- becommitted*to ing upon contempt. If he do not put in his *® ^'®®'- answer within the time, or within four days after, it is a motion of course that he should stand committed to the Fleet, and then he must answer *m vinculis, for he is a prisoner to the court, and answers as a prisoner. After a decree was pronounced, the old way was to spend the whole process of the court by attachment, proclamation, and commission of rebellion, sergeant-at-arms, and sequestration. But in the time of my Lord Chancellor Els- mere, a defendant was taken upon the process, and lay in contempt in the Fleet, having the money by him which was decreed to the plaint- iff, and the lord chancellor ordered a sequestra- tion. About fourteen or fifteen years ago they began to shorten the process in execution of the decree, for if they must begin with the attach- ment, proclamation, commission of rebellion, and spend all the process, it would be a year's time before the decree could be executed, so as *In custody. 84 ♦ FORTTM KOMANUM. [Ghap. V the plaintiff could have any effect of his suit, and therefore they proceeded to serve the defendant with a copy of the decree ; and upon an affidavit of service, and refusal to obey the decree, they moved that he might stand committed, and the practice then was immediately to commit him to the Fleet; and upon a return of *non est in- ventus by the warden of the Fleet, the court or- dered a sequestration ; but that was complained of by the sergeant-at-arms; and on the third day of May, in the seventh year of the reign of King George the first, an order was made that there should be no sequestration but upon re- turn of the *non est inventtcs by the sergeant- at-arms. So that now the practice is that they The method now must either Spend the whole process of the cree pronounced,, court, or upon affidavit of Service of the decree, move for an order that the defendant should stand committed for disobedience, and upon that order he may move for a sergeant-at-arms ; and upon his return of *non est inventus he may move for a sequestration. This shortening of the process was justified by the ancient practice of the court, when they order the defendant, upon entering his appearance with the register, that if he disobeyed the order of the court he should immediately stand committed. And if a man might be committed for non-performance of an interlocutory order, when he has recorded his appearance, and departs in despite of the court, he certainly may be ordered to stand committed after a decree pronounced, for the appearance of the defendant is recorded at the hearing ; or if the decree be pronounced in his * Is not found. Chap. V.] FORUM ROMANUM. 85 absence, it is only conditional, and he is served with a copy of that decree, and acquiesces in it, before it can be absolute ; and therefore there the process may be well shortened, because his .appearance or acquiescence is recorded in court, so that the whole process in execution of a de- cree stands thus : Either the decree is *in, rem or ftn «erso- The decree is T,. .1 J 1 ±- i -i 1 either in rem or nam. it the decree be *in rem, yet it may be in personam. executed upon the person in the manner here- inafter mentioned, or else they may immedi- ately execute it *in rem, by an injunction to put the party in possession of the thing decreed. And the decree binds all persons that come in Binds aii that . , , . come in in any in any privity, as heir or executor, or any privity. ,. , . ,. , . Co.Lit.3446. alienee that comes in pending the suit, upon the rule that ^pendente lite nihil innovatur. If the decree be \in personam, they may proceed to sequestration, by spending the pro- cess of the court, or by ordering the defendant to stand committed. If the sequestration be for a personal duty, vem. we. where the heir is not bound, and the defend- ant dies, there is an end of the sequestration, and it cannot be revived against the heir, be- cause neither the heir nor the lands are bound by such decree. But if the decree were upon a covenant which bound the heir, and the defendant died, such decree might be revived by subpoena scire facias against the heir, to show cause against the decree. If the decree be enrolled of record, or if not, by a bill of revivor, and when you * Against the estate. f Against the person. § Pending the suit there can be no alteration. 86 FOKUM ROMAN DM. [Chap. VI. have revived against the heir and executor, you may also revive the sequestration upon motion, if upon coming into court they can show no cause why the decree should not be revived. 2 Vera. 89. But it was resolved in my Lord Sommers's time, that a decree should have the same au- thority to bind the personal assets as a judg- ment at law, and therefore shall go *pari passu to be paid oif and discharged. But the lien of the judgment upon lands came in by the statute of Westm. 2, 13 Sd. 1, c. 18, which only gives an '\ elegit for a moiety of the land in satisfaction of the debt, and therefore that could give no authority to lay a sequestration on the real estate for a mere personal duty, where the heir is not found in the covenant. CHAPTER VI. OP ANSWERS AND EXCEPTIONS, REPLICATIONS AND REJOINDERS. ue Judioiis, 1. 6, ^Y the aucient civil law, when ;the libel was h^al^tit'D, ve?b! preferred to the judge, it was also delivered to the ^reus, and if the defendant did not answer * Together. t A writ so called from the words in it has elected to have delivered to him, &c. § Defendant Chap. VI.] FORUM ROMANUM. 87 in ten days, they had the *edictum primum; and after ten days more, if the answer did not come in, they had the '\ edictum secundum; and in ten days more they had the fedidwrn not.63, 0.3. peremptorium. And if he did not come and answer in ten days more, judgment was pro- nounced upon him as if he was absent. And these were called the several || dilationes that were given the defendant to answer. But after the provincial judges were settled, then the code brought in a new regulation, which was, that after the defendant was cited, the plaintiff was to give caution to end his suit in two months, and then he was likewise to de- liver a copy of the libel to the **reMS, who sub- scribed the note of the time when such libel was delivered ; and then there was a term of twenty days given the defendant, in which time he was to put in his answer, and if he did not, sentence was given as if the answer was put in. For they look upon the subscribing the time of receiving the libel as a submission to contest within the twenty days; and the twenty days were reckoned as a time of delibe- ration, whether he would yield to his adversary or contend in judgment. And therefore, if the libel was delivered, and the subscription demanded, and the 'J actor proved this, and the twenty days were out, then the defendant was presumed to acquiesce. By our law, if a man. was subpoenaed to an- swer, it was returnable at a time certain in term, and the term being reputed in law as one » First edict. f Second edict. g Third edict. II Dilatories. * » Defendant. % Plaintiff. 88 FORUM ROMANUM. [Chap. VI. day, he had anciently time to answer during the whole term, unless he was hastened by re- quest. And for that purpose they might give him a rule to answer in eight days from the Awanswerre- time of appearance. There the time prefixed Client, the defend- was eight days, as being double to the time of ant mnst answer -rt , ,t • o t • • j_ ineightdays. appearance, cut this was lound inconvenient, and to create disputes concerning the rule, and therefore they came to one uniform rule, which The defendant to is uow the coursc of the court, viz : that the dayMf heHyed defendant was to answer in eight days, if he twentymiiesofit. lived within twenty miles of town ; but if he fendantmayhave lived at a greater distance from town, then he was entitled to a *deaimus; but for want oi an- swering, or moving for a * dedimus, within eight days, an attachment issued of course. Anciently the circuit round the court was ten miles, the same that was fixed for issuing the writ of subpoena returnable immediate. But for commons to answer, they took a greater dis- tance, because defendants might conveniently enough come at that distance to answer in proper person. Noteiitwiiibe They found a convenience in the court of gr.anted upon affi- , ,, ■, . t • . i i • davit, if the party clianccry 01 having solicitors or clerks m court, twenty miles, if and therefore, where the distance was more hebesiclcand in- . • t /v» capable of travel- than twenty milcs, upon motion and affidavit that the defendant lived above twenty miles, they suffered the * dedimus to issue. What return a The * dedimus has a longer or shorter return , Jiave. according to the distance of the party living from the town ; but generally, if the subpoena be returnable the first return of Easter or Michaelmas .term, the * dedimus must be re- * Commission. Chap. VI.] FORUM ROMANUM. 89 turnable the last day of that term ; but if the subpcena be returnable the latter end of those, or any other term, they have time till the next term for the return of the * dedimus. In the exchequer, if the defendant lives The range of the within fifteen miles, he is to answer in person, chequer. which is the natural range of the court by a subpoena returnable immediate, and if he lives within that range, he cannot have a com- mission, without a special order of court, upon affidavit of inability. By the civil law, when the plainliif had put in his positions before the judge, the defendant was to put in his contestations or negations of such positions^ and the plaintiif had liberty to examine the defendant upon interrogatories, to supersede the necessity of proof; and these were called the fUbellus artieulatus, and was generally put in after the first act, where the defendant had answered the positions. The answer begins in the form of the civil oiarke, 35. law, viz : § Sub protestatione de nimia generali- tate, ineptitudine, obscuritate, nuUitate, et in- debita specificatione dicti libelli; and the oath is in the same manner, || de scientia in his quae pro- prium tuwn factum decernunt, et de credibilitate in facto alieno. We also flung the positions and the '\lihel- The interroga- , . 7 , • , ■ 1 '11 11 'J ■ toriee must arise bus artieulatus into one bill ; and hence it is out of the facts ' alleged in the * Commission. '^'"• f Articles of the libel. § Protesting the said libel for being too general, absurd, obscure, vague, and unduly set forth. II According to your knowledge, as to what concerns your own act, and according to your belief, as to what concerns the act of a stronger. 90 FORUM ROMANUM. [Ohap. VI. that the interrogatories must arise out of the facts alleged in the hill ; that if the interroga- tories do not arise from the facts alleged in the bill, but are totally foreign to it, the defendant may refer them for impertinence ; but if he does not, but submits to answer them as pertinent, the court will, generally speaking, oblige him to answer the bill, unless the interrogatories are totally foreign and not at all pertinent to the bill. The masters at first examined the defend- ant upon those interrogatories, but afterwards it was left to the counsel or commissioners in the country ; and hence it was that they sent to the commissioners a copy of the bill, which they called the tenor thereof, that they might examine the defendant upon the *libel- lus articulatus, as the masters were wont to examine the defendants above upon the articles of the bill itself; but afterwards the master left that to the counsel who drew the answer, as the court had left the perusal of the bill to counsel. For anciently the court perused the bill itself, to see whether the petition was proper, before it was filed ; but the court, by reason of the increase and multiplicity of busi- ness, leaving the perusal of the bill to the honor of the bar, the master likewise left the examination of the defendant upon the articles of the bill to the counsel and commissioners in the country. The counsel's hand is not necessary there, as it is to a bill put in court, so that the sending the tenor of the bill to the commissioners in the country became perfectly * Articles of the libel. Chap. VI.] FORUM ROMANUM. 91 nugatory, and was taken away by the act for lands Ann. o.w, the amendment of the law. If the commissioners send up an insufficient answer, the defendant, on payment of fifty shillings costs, may pray an order for a new commission ; and if the second answer be re- ported insufficient, upon payment of three pounds he may move for a third commission ; and if the third answer be insufficient, upon payment of four pouijds he may move for a fourth ; but if the fourth answer be likewise insufficient, he shall pay five pounds, but can have no new commission, but must answer *in vinculis. The party who intends to plead or demur must first take care that he is not guilty of dilatories; for if he stands out to an attach- ment with proclamation^ he cannot in that case plead in bar to the bill, and his plea shall be dismiissed upon that suggestion. Again, if the time for answering is out, and the party prays, by petition or motion, for further time to answer only, and not to plead and answer, and the court indulges him in it, he shall not in that case (though he may afterwards, upon advising with his counsel, find reason to plead) put in a plea, without special leave of the court, and upon notice, for he might' have prayed time to plead and answer. But only desiring time to answer may be a good reason to deny him pleading it, it being a further dilatory. If the defendant takes out a commission to *In custody. 92 FORUM ROMANUM. [Chap. VI. answer, he cannot return a plea or demurrer, because the commission is to answer or contest in the cause, which does not give the commis- sioners authority to receive any exception in relation to such contest ; but the defendant may move the court for a commission to plead, answer, or demur, and the court will grant it, but with this restriction, not to demur alone ; and then the commissioners may receive a plea, or an answer, and demurrer, because they have an authority from the court so to do ; but if they send up a demurrer alone, the court will grant an attachment against the de- fendant, because such demurrer might be put in under counsel's hand without oath of it. If the commissioners send up a plea of outlawry in disability^ if the plea be overruled, the defendant shall pay five marks costs ; and if it be allowed, the defendant shall have no costs, for it might have been put in without such commission ; and the plaintiff was put to the unnecessary charge of attending that com- mission. This special commission, for so it is called, (all other commissions being only to answer,) is returnable as other commissions are, and (o) Now fourteen, there are (a) six days' notice given to plaintiff's commissioners of the execution thereof. And very often the defendant who pleads is caught in the caption thereof; for if the com- missioners return * capta fuit hcec responsio, without the words f ^t placitum vel moratio, the plea will be set aside, because it doth not appear that the party was ever sworn to his * This answer was taken. f And plea or demurrer. Chap. VI.] FORUM ROMANUM. 93 plea, which he must be, as well as to his an- swer ; but the court often indulges the party to amend the return. Where the defendant pleads the pendence of a former suit in another court for the same matters, if it is in any of the courts in Ireland, this may be done at the coming in of his plea : the plaintiff may and ought to procure a ref- erence to the master, and his report in four- teen days that the former suit is not for the same matters, and in such case the plea is to be overruled ; or the defendant may bring in his plea, and if it is well pleaded, and both suits appear to be for the same matter, the plea is always allowed. Either party sets down the plea to be argued by petition. If allowed on the arguing there- of, the plaintiff pays five pounds, to be recov- ered by subpoena ; but if it be overruled, or ordered to stand for an answer, with liberty to except, then the defendant pays the plaintiff five pounds ; but if the words are to save the benefit of the plea till the hearing, no other use could ever be found by these words, but that in truth it saves the defendant's paying costs for the overruling his plea ; and there- fore, though the court often makes use of these words, yet where the plea is very faulty or naught, though the court often saves the bene- fit thereof till the hearing, yet they declare it shall not avoid payment of costs. If a plaintiff replies to a plea before it comes on to be argued, this is as full an admission of the plea as if it had been argued and allowed, for the plea by this replication is allowed to be 94 FORUM EOMANUM. [Chap. VI. good, only the defendant is put to the proof thereof; and so he may be, when it is argued and allowed ; but if he proves his plea, the bill must be dismissed at the hearing. Exceptions. Where a defendant appears and puts in his Whattimethe . , ,. .Pii i • ■•/?■• i j.- plaintiff hath to Rnswer in due time, il the plamtiii is not satis- fendant's answer, fied therewith, or conceives it to be insufficient, he hath, if the answer comes in in the vaca- tion, till, the first day of the following term; -or, if it comes in in term time, till the last day of that term, to except thereto ; and these excep- tions are prepared and signed by the plaintiff's counsel, and are delivered over to the defend- ant's clerk in court. If the exceptions are not filed in due time^ the defendant's clerk in court is not bound to receive them : he may put the plaintiff to obtain an order to receive excep- tions, the time of the filing thereof being out. Whattimethe The defendant hath eight days' time allowed defendant hath to i . . t . , . , answer excep- him to suDmit to answer these exceptions, tions. I'l-r. 1 !■ 1. 1 which, IT he submits to, he is to pay to the plaintiff, or his clerk in court, the sum of twenty shillings costs for his answer being insufficient. Note: the exceptions must be eight days on the file before the plaintiff can refer his exceptions. Exceptions to answers are totally creatures of the court of chancery, for the exceptions in the civil law were to the bill, and are in the nature of our pleas and demurrers, as is be- fore mentioned. But there were no exceptions ' to answers, because, upon the *libdlus articu- laius, the defendant was examined before the * Articles of the libel. Chap. VI.] FORUM ROMANUM. 95 judge, and therefore the judge took down the answer of the defendant particularly ; and if he did not answer, he was contumacious in the face of the court, and to be dealt with as such. But the court of chancery having allowed counsel to draw the answer, they very often drew it short and evasive, and therefore they had not the effect of the answer on the *lihellus articulatus in the civil law; and hence it came to pass, that when the answer was short, they referred it to the master upon the exceptions, to see whether the answer was sufficient, and if it was not so, he reported it insufficient, which was a direction for a further answer. And then the counsel drew the second answer, as they did in the first instance. Hence, if the if an answer be - . put in in vacation answer came in vacation, the exceptions were time, the exoep- , , Tp 1 tions mustbe put to he put in the same vacation. If the answer ?» ^° too; and if \ . . # . ^" term time, the came in m term time, the exceptions were to exceptions must ' ^ ^ be put in in term be put in in the same term, and in the ex- '™^- chequer, because they did not sit during the whole vacation, by reason of circuits. If the answer came in in vacation, the exceptions were to come in in four days of the subsequent term. This was established upon the method of the civil law, though with some variation, for when the answer was given in to the '\posi- tiones, they then put in the *libeUus articu- latus, which was to be answered before the judge. And the court of exchequer, instead of referring it to a baron, which is the practice instead of refer- of Ireland, and was the ancient practice of that ti"! baronfthey court, they now hear the exceptions, and the by the plaintiff "to plaintiff is to set them down to be heard the urday sennight" ' after they come * Articles of the libel. f Positions. in. 96 FORUM ROMANUM. [Chap. VI. Saturday sennight after the same are come in. If they are not, the answer is presumed to be acquiesced in, and they are set down before the court, by way of shortening the time, to give dispatch to the suitor, who is presumed to be debtor and accountant to the King. But if the exceptions do not come in within time, yet the plaintiff may move that the de- fendant may receive exceptions, for, by the civil law, the plain tilf might move that the defendant might answer the *liheUus articu- ' lotus at any time before he had replied to the defendant's answer. By the civil law, a man was examined three times upon the *libeUus articulatus, and if he did not answer to the satisfaction of the judge, he was contumacious, and it was either taken "[pro confesso, or he Not till he has was obliged to answer in custody ; and hence cient answers? it was with US, if three insufficient answers were put in, the defendant was obliged to answer ^in vincuUs. But if the defendant, upon advising with his counsel, conceives his answer to be good and sufficient, then he puts the plaintiif to obtain an order (which is of course) to refer the excep- tions to a master. This order being drawn up, passed, and entered with the register, the plaint- iff attends the master, and takes out two war- rants, and serves them on the defendant's clerk in court. (There must be one day intervening between. the date of the warrant and the day of attending the master, unless the parties, for their own convenience, otherwise agree it among themselves.) As, for example, if the first war- * Articles of the libel. t As confessed. ? In custody. Chap. VI.] FORUM ROMANUM. 97 rant is taken out a Monday, it must be made returnable the Wednesday following ; and the second warrant, which is dated on Wednesday, must be made returnable the Friday following, (so it is in all notices of motion, there must be Note: inaiino- ^ , . Ill ''°^^ °f motions, a day intervening.) to the end the adverse party there must be one •' O" , ■ -, ■ I, • . , day intervemng. may have time to prepare his briets, instruct his counsel, and get ready to defend the motion, which he could never do if this rule was not strictly observed and pursued. And as in the case of a warrant or summons to attend the master, so in a notice of motion, they must be both left at the seat of the adverse party's clerk in courtj and with him or his clerk or agent there, and oath must be made of the service oath must be „. made of the ser- thereoi, at the seat ot the clerk m court; and vice of notice of X 7 motion. the party swears ' ' that John of Oaks, or John of Styles, acts as clerk in court for the plaintiff or defendant in that cause, as the deponent is informed and believes." And this affidavit Affidavit cannot must be filed before it can be read in court, and the service of the warrant, or notice of motion, ought to be at the seat, (which is the known office for doing of business,) and it ought to be served there whilst the office is open, which is generally between eight and nine at night. And in that case the clerk in court hath time to send early notice to his client that night; whereas it sometimes happens that warrants or notices of motion are not left till ten or eleven at night, and even at the house of the clerk in court, which was never yet (if stood upon) es- teemed good notice or service ; for in that case his client cannot have notice thereof till the next morning, and perhaps he may be gone out 7 98 rORUM ROMANUM. [ChAP. VI. about other business, and does not hear of it till his return home at noon, or in the evening, and so his client is surprised, and he himself hath not due time to prepare for his defense, and therefore it is apprehended that this notice of heing left at the seat ought to be strictly ad- hered to, according to the ancient rule, to pre- vent any surprise. This rule of serving notices of motion and warrants or summonses from the masters gen- erally holds good in all cases; but as there is no general rule but an exception lies to it, so there doth to this. Motion for money For where there is a motion for money to to be paid out of . .. , *''® master mak- to attend the master upon the plamtm s ex- mg his report. ceptions taken to the insufficiency of the defend- ant's answer, both parties attend the master at the return of the second warrant, and the order of reference being produced, he hears them thereon ; and the bill, answer, and exceptions being left with him, he usually takes time to consider thereof, (unless the matter appears very plain on the one side or the other ;) and in that case he delivers his opinion in the pres- ence of the parties attending him, and after- wards make his report of the sufficiency or the insufficiency of the answer, (unless where the defendant doth not attend at the return of the second warrant to justify his answer ;) in which case the master makes his report of the insuffi- ciency of the answer, according to the excep- tions then before him. But before this is done, An oath required he requires an oath of the due service of the of the ™rrants™ , J.1 T /• 1 j_j 1 1 • , T on defendant's warrants on the aetenaant s clerk in court, and oierk before the J^^ 11- i -t , 1.11 masterwill report then makes his report *ea; parte, and thereby the answer msuf- takes notice that he having been attended by the plaintiff's counsel, or clerk in court, or soli- *0n one side only. 100 FORUM ROMANUM. [CffAP. VI. The party in whose favor the report ia made pays 16 s. for it before the hear- ing, and 25 8. after. Defendantpays for an insumcient answer, if a town cause, 40 a.; if a countiy cause^ 60s. Subpoenas for costs must be served person- ally. citor, (as the parties attend him,) and none at- tending for the defendant, (though duly sum- moned, as hy oath made before him appears,) he reports so and so. The party in whose favor the report is made of the suiificiency or insufficiency of the answer (for of this alone we are now speaking) tal?es away the report, (he pays fifteen shillings be- fore the hearing of a cause, and twenty-five shillings after the hearing,) and carries the re- port and files it at the report office. And if the report is that the answer is in- sufficient, then the defendant is to pay (if a town cause) forty shillings for his answer being reported insufficient. And if a country cause, where the answer is returned up by commission, he pays fifty shillings. The same rule holds in an insufficient examination put in by the defendant. And for the recovery of these costs, and to compel the defendant to put in a further an- swer, the plaintifi" sues out a subpcena for the costs, and serves the defendant personally therewith, and demands the costs of him ; and if he refuses payment thereof, upon an affida- vit of service of the subpcena, and demanding the costs, (which is always made payable by the subpcena to the plaintiff or bearer thereof; and the bearer, whoever he is, may give a re- ceipt for the costs,) there issues out an attach- ment against the party for non-payment of the costs ; and such proceedings are had for re- covery thereof, by carrying on the process of the court against the party contemning, as is usual in those cases, viz: by proclamation, Chap. VI.] FORUM ROMANUM. 101 and so on to a sequestration. But this rarely or ever happens in the case of forty or fifty shillings costs, which are generally paid upon the service of the suhpoena. And upon this head it is to be observed, as The contemner '■ ... never to be heard a general rule, that the contemner who is m «" h? hath ciear- ° , , ed his contempt. contempt is never to be heard, by motion or otherwise, till he hath cleared his contempt and paid the costs. As, for example, if he comes to move for anything, or desires any favor of the court, if the other side says or insists he is in contempt, though it , is but an attachment for want of an answer, which, if not executed, is only ten shillings, and if exe- The costs of an _ . , 1 -IT 1 ■ attachment not cuted, IS twelve shillmgs and sixpence, yet executed. even in this case he is not entitled to be heard till he hath paid these costs, (however small they are.) He must first pay them to the party or his clerk in court, and produce a receipt for them in open court, before he can be heard ; and this is always allowed as a good cause against hearing of the contemner in any case whatsoever. And to oblige the defendant to put in a fur- The defendant ia ii i ii 1 Ml / 1 1 • • °<" '0 "« served ther answer to the bill, (where his answer is with a new sub- reported insumcient,) the plaintifl is not bound better answer. ■*■ J/ i. Enough to serve to serve him with a new subpoena; but he is his cierk in court. to serve his clerk in court with a subpoena *ad faciendum meliorem responsionem, which is al- ways allowed to be a good service of the' defend- ant ; and he must answer over in eight days (if a town cause) or have a commission, (if a coun- try cause;) and if the answer is not returned in due time, the plaintiff proceeds by way of * To put in a better answer. 102 FORUM ROMANUM. [Chap. VI. attachment for want of a further answer (as usual) to a sequestration, as before stated. Where the an- And if the defendant's answer is reported sufficient, plaint- sufScient in the points excepted to, then the liiie costs defend- defendant takes out a subpoena for his costs, answer was re- ( just as the plaintiff does against him.) He is ported snffloient. ^"^ .,i , ,.™. entitled to the same costs as the plaintifiF is against him, and proceeds by way of subpoena and attachment for recovery thereof in the same manner as the plaintiff does against him, and as if the report had been in his favor. Exceptions to the master's report. But still the report of the master, who is only a ministerial and subordinate officer, is not to conclude either party in this or any other case whatsoever, for either party hath a right to appeal from the same to the judgment Exceptions to the of the court ; and in this case it must be by way mastei''s report « , ■ , , i , , , i i must be signed 01 exception to the master s report, and such by counsel. . . i • n i exception or exceptions must be signed by Five pounds counscl, and there must be five pounds depos- ed'with^he'reg- itcd witli the register by the exceptant, as a ceptant. stake to recompense the other party, if the court, upon arguing the exception or exceptions, shall find the same frivolous ; and either party may apply for the bringing on the exceptions, as they shall be advised ; and there is always an order for that purpose. If the exceptions ta- ken to the master's report are allowed, the party who deposited the five pounds takes it back from the register; but if the exceptions are overruled, and the judgment of the master is found right, then the other party takes the five pounds deposit money. Chap, yi.] FORUM ROMANUM. 108 If the master reports the answer insufficient if the master re- ^ ports the answer in one single exception, the defendant must J,°^e"^°'®°gjj°g either except to the report or submit to answer ^^™^*h^«j ^fj^'^"'*- according to the report. If he doth not except, ^ft"exo°epUo ^' but submits to answer over, he must take care p'J,^™''^'®'''^ '''"' to put in full answer ; for, having once submit- ted to answer over, he hath allowed the judg- ment of the master to be good against him; and in this case he shall not insist by his second answer that he ought not to answer the excep- tion, nor shall he in the case of a single excep- tion afterwards except to the report, and bring it on for the judgment of the court whether he ought to answer over or not. For this he might and ought to have done at first, and there he would have had the opinion of the court whether his first answer had been good or not, which upon his second answer he can never have, because he hath concluded him- self by submitting to answer according to the report. But it is conceived this rule does not hold The defendant to good in all cases. For where the master reports exceptions that ° ■ ra ■ 1. ■ r n are against him. ttie answer insuincient in tour or five more ex- ceptions, it often falls out that one or two of these exceptions are fatal on the party, and so they would appear, if the party excepted to the report; and therefore, in this case, the party may submit to answer over, as to such of the exceptions which he knows to be against him, but as to the others, if he is advised, his first answer is full in those points ; or if they are of such a nature as ought not to be an- swered, or are altogether immaterial, the de- fendant may in this case, and notwithstanding 104 FORUM ROMANUM. [Chap. VI. he hath put in a further answer to the report, afterwards except thereto, and have the opinion of the court thereon, and it was never held that he was in that case concluded by the report, or hound to answer according to the report. If the court is of Where a master reports an answer insuffi- opinion that the . , . n /, . defendant ought cicnt in lour, uve, SIX, or scvcn, or more ex- to answer the 1st, . i , i , i_ j_ _Lt j. 2d, or 3d exoep- ccptions, and the party excepts to the report; tion, they seldom ..i ,.,i , j?- go on any further, it, upon arguing thercoi, the court are oi opiu- hut make the de- ' ^ ,. , , i fondant answer, ion that the defendant ought to answer the first, second, or third, they rarely go on any further ; for if any one exception proves fatal, and must be answered, the court seldom trouble themselves to go into the rest of the exceptions, but usually say, let the party answer accord- ing to the report at his peril. But there may be some cases where the court will indulge the party to go into the rest of the exceptions ; as if the defendant's counsel admit one exception to be against them, and yet strongly insist there is nothing in any of the other exceptions. In this case (though rarely) the court will enter into the merits of the rest of the excep- tions ; but if they do not, yet it is conceived that the party is not bound to answer all the other exceptions: he may answer such as he knows to be against him ; and yet, when his second answer is reported against him, he may except, and demand the judgment of the court whether his second answer is not good and sufficient; and this was never thought to be that the party was in all events bound to an- swer according to the report, or to conclude thereby. Chap. VI.] FORTJM ROMANUM. 105 There are other cases where exceptions are taken to the answer, and where the party. hath not answered them at all, hut insists on his right, and that he is not bound or ought to answer them ; and in this case the masters gen- erally report according to the exceptions, be- cause they will not take upon themselves to judge how far the defendant ought or ought not to answer, but leave it to be determined by the court; and when it comes on 'upon an exception, the court frequently dispenses with the defendant's not answering the exceptions, especially where they appear to be immaterial or in matters of title. If the defendant stands out so long as to if the defendant _ , _ , . . stands out so put in three trmmg answers or examinations, long as to put in ■*■ . p -I a third answer, it IS a motion of course to pray he may stand which is reported '■ ■' •' . insufficient, he committed upon his third answer or examina- stands oommit- tion being reported insufficient. And this rule is grounded upon good reason, because in this case the party may be held in hand twelve months or more before he arrives at a perfect answer or examination from the adverse party, which the court will never endure. In the exchequer, every plaintiif that shall Eight days after take exceptions to the defendant's answer shall term. put in his exceptions to the same four days within the term next after the coming in of the answer, and set down the same to be heard on the Saturday sennight following. In case the defendant will put in his answer before the time appointed for the hearing of the same ex- ceptions, he is to put in the same two days, or sooner, before the time for the hearing thereof, and then he is to pay but twenty shillings 106 FORUM BOMANUM. [Chap. VI. Plaintiff raaj^ amend his bill before any an- swer comes ill without costs. All original and amended bill all one. How an amended bill must be drawn. costs. And if, upon hearing of the exceptions, the defendant be ruled to answer, the defend- ant shall forthwith pay to the plaintiff or his clerk in court three pounds costs, and shall put in his answer within eight days, unless he desires a commission to answer ; in both which cases he is to rejoin * gratis, and join in a commission as aforesaid. And if the defend- ant's answer shall be adjudged good, the plain- tiff shall forthwith pay unto the defendant or his clerk in court forty shillings costs; and all answers coming in after the setting down of causes are to be taken as answers of the suc- ceeding term. A plaintiff may, after an appearance to his bill, and before an answer comes in, move and obtain an order (of course) to amend the same without costs, (but in this case he must amend the defendant's copy;) and in like manner a plaintiff may, after coming in of the defend- ant's answer^ move to amend his own bill, on payment of twenty shillings costs to the de- fendant, (which is a motion of course ;) but then he must take care to pay those costs on the amendment of his bill, and before he pro- ceeds against the defendant, or else he will be irregular. And he must in this case serve the defendant -[de novo, and proceed against him, (as in the case of an answer to an original bill,) since the original and amended bill are, in the eye of equity, only one bill, and they both make up but one record. This amended bill must very shortly recite the original bill. It ought to take no further * Without costs. f Again. Chap. VI.] FORUM EOMANUM. 107 notice of the original bill than what is ahso- lutely necessary to introduce the amendment to avoid impertinency, as but too often happens on these occasions. / Replication in the civil laiv. According to the civil law, the plaintiff, by Eepiieation in leave of the court, might add any new position what. before replication, for the' replication was the contestation of the answer, and therefore, after the answer was contested, there could be no po- sitions, but they went on to their proofs. But New matter dis- covered after 11 any new matter was discovered after replica- replication, by , ^ leave of the court . tion, they might, by leave of the court, file a the party may ' '^ ^ ^ ^ . ^ ^ ' ^ have a supple- supplemental bill, touching any matter of fact mental bin. that was discovered after such replication ; for the supplemental bill was in the nature of a new cause, which might be brought, by leave of the court, after the *contestatio litis in the former cause, and the court might lengthen the The court may . , , . . „ , ° , lengthen time for time tor publication, atter such supplemental publication after ■^ ' , -*■■*■ a supplemental bill and answer came in, because -the prolonga- ^'^^■ tion of the i)robatory term was very much in the breast of the court. But if the supple- mental bill be moved f(^ after publication, the AfterpubUcation, , - . the court never court never gives them leave to examine any- gives loave to ex- . . . T „ , amine anything thing that was in issue in the tormer cause, by that was in issue ° *^ in the former reason of the manifest danger of subornation <=™se unless ac- ^ ^ count. of perjury, where they have a sight of the ex- amination of the witnesses. But for matter of account there may be a supplemental bill after publication, because they examine to such mat- ters of account before the master or deputy after publication. And this is from the necessity of * Contestation of the suit. 108 FOKUM KOMANUM. [ChAP. VI. the thing, because the charge or discharge must be made up privately before the master or dep- uty, and therefore, they being in charge and discharge, the particulars of which must be proved, such accounts being now kept by books or notes, and formerly by scores "or tallies one against another ; and therefore a supplemental bill in matters of account is seldom refused. So likewise a supplemental bill may be for any fact discovered after publication passed that was not in issue in the same cause, and where such fact might vary the decree ; but after the decree is pronounced and enrolled, it must be by bill of review and reversal ; of which more hereafter. Formerly they had a manner in chancery of filing a special replication, which is setting out of further facts in support of the bill ; and this created special rejoinders, surrejoinders, rebut- ters, and surrebutters ; but this was found to create great perplexities and disputes how far the subsequent pleadings were in support of the bill and answer, and therefore they came back to the old and solid method of the civil law, by adding new positions after issue was joined, and by supplemental bills, and by making a new cause afterwards. Where a bill re Where a bill is filed, and a full answer put swerputin.if the in thereto, if the plaintiff doth not proceed in defendant does ,. ..i , ,t ■, r- ■• notproceedin his causc in three terms, the defendant mav in three terms, the p n bill will be dis- that casc movc (as of course) to dismiss the missed. ^ ' bill for want of prosecution, with costs to be taxed by a master ; but he must produce the six clerk's certificate of the time of filing the answer, (and the six clerk certifies that since that time there have been no proceedings in Ohap. VI.] FOKUM ROMANUM. 109 the cause, as appears by his hooks.) Tin's certi- ficate, however, is never called for. The counsel who makes the motion is supposed to have, and in truth always hath it in his hand, for he cannot move without it. The master taxes these costs, and they are recoverable by sub- poena, as in other cases where costs are to be paid by either party. The ancient rule was, that a man might dismiss his own bill on pay- ment of twenty shillings cost; hut this, in process of time, was found so great a griev- ance that the legislature took notice of it, and made an act of parliament (a) that no bill (o)* and s Ann. c. 16 sec. 24. should be dismissed but on payment of full costs to be taxed. The party, it is true, may move, and often does, to dismiss his owh hill with costs to be taxed ; and as this is a motion of course, so it tantamounts to the defendant's moving to dismiss the same. It only prevents the defendant's moving for that which the plaintiff had done for him. But though this proceeding of dismissing bills for want of prosecution with costs is laid down as an established rule of the court, yet cases may be found out where it will not hold good. As for example, where a bill is filed against several defendants, it often falls out that one defendant answers in due time, when another defendant is forced to be prosecuted for want of an answer, and the plaintiff cannot proceed in his cause till all the defendants' answers are in ; and therefore, whenever this case hap- pens, and where it appears to the court that the plaintiff is going on with his suit, and 110 FORUM ROMANUM. [Ohap. VI. prosecuting for want of answers, it has always been allowed a good cause to discharge the order of one single defendant, under pretense of dismissing the bill as against him for want of prosecution. And this is grounded upon the highest reason, because the plaintiff cannot proceed with effect in his suit till all the an- swers are in, and because it often falls out that one defendant's answer comes in in due time, when the answers of the other defend- ants cannot be got in under six or twelve months after filing the bill, or at least not suf- ficient ones. To say that, because one defend- ant hath fiilly answered, and is not proceeded against, that therefore the bill * quoad him ought to stand dismissed, when at the same time the plaintiff wants an answer from the other defendants, and without it cannot pro- ceed to have a complete decree, is what was never yet allowed of; for where a plaintiff is prosecuting for want of answers, one single defendant shall never dismiss the bill during that prosecution. And though a bill is dismissed for want of prosecution, yet the plaintiff may move to re- tain his bill on payment of costs out of purse. But in this case he ought to proceed with effect in his cause, which, if he fails in, it will come a second time to be dismissed for want of prose- cution with costs, to be taxed by the master. Note, to the rule In the exchcqucr, if the plaintiff doth not as to the ijiaint- reply to the defendant's answer some time the arepying, ^^^^ term after the answer is put in, the de- fendant may, the term following, give a rule *As to. Chap. VI.] FOEUM ROMANUM. Ill to be dismissed within a week; and if the plaintiflf shall not within that time reply to the defendant's answer, the defendant shall be dismissed with five marks costs. But if the defendant does give a rule to be dismissed for want of a leplication, upon the coming in of such replication the defendant is to rejoin gratis, and join in commission. And if the plaintiff doth not the same term, or the terra following, take forth a commission to examine witnesses, the defendant may either take forth a commission *ex parte, or else be dismissed with five pounds costs. And in all cases where the defendant shall give a rule, either for not replying to the defendant's answer, or for not proceeding after replication^ if there be not a week in term, the plaintiff is to have a day to show cause, till the setting down of causes. Keplication. The replication is the contestation of the The repiioation t ,1 ' j_i_oii* 1 , i the eontestation answer; and this must be tiled, in order to put of the answer. the answer in issue. By the ancient civil law the plaintiff was to give security, as is hereinbefore mentioned, to prosecute his suit in two months; and if he did not, he was to be dismissed, and answer damages to the party. This begot the rule that the plaintiff must reply in three terms, Plaintiff must ve- and, if he did not, the defendant might move terms. for a dismission with costs. The rule in the Rule m the ex- exchequer is more according to the form of the common law ; for after plea pleaded, the plain- tiff was to reply the then next term, and if he *0n one side only. ' 112 FORUM ROMANUM. [Chap. VI. did not, the defendant gave him a rule to reply in a week of the subsequent term, and if he did not, there was an order for dismission, as in such cases there was judgment at law for want of a replication ; but if there were several de- fendants, one could not get an oiaier for dis- mission till a full answer came in from them all, because the plaintiff cannot go to proof against one only, since publication must pass against them all before the decree can be ob- tained, but then the plaintiff must, without de- lay, pursue the process of the court against the Rejoinder othcr defendants. Whenever the replication is filed, in order to close the * litis contestatio, there must be a subpoena to rejoin, which is according to the old civil law, which required a citation in order to form the act of the court, and therefore the first citation was to answer, the second to rejoin, upon which the probatory term was formed, and the third was the sub- poena or citation to hear judgment. But if the defendant delayed the plaintiff upon the first citation, the court very justly might impose terms upon him, such as to rejoin gratis, and that he should consent to form the probatory term without the service of a subpoena to re- join. If the plaintiff replies, the defendant can never dismiss the bill without hearing the cause, because the defendant may rejoin gratis and prove his answer, and so bring the cause to a hearing. But this rule is now altered ; for if a plaintiff replies, and never serves the de- fendant with a subpoena to rejoin, nor takes any step towards the making of proof, but sleeps * Contesting of the suit. Chap. VI.] FORUM EOMANUM. 113 for three terms, the defendant may dismiss the plaintiff by rejoining or setting down the cause, because they look upon the replication, though it be a contestation of the answer, to be only matter of form, and therefore, if the plaintiff afterwards sleeps for three terms, he acquiesces in a dismission ; and the mere filing of the rep- lication, though it does put the defendant in a capacity of making proof of his answer, yet if the plaintiff will acquiesce, and not take any steps towards the proving of his bill, it would be very hard that the defendant should be put to the trouble and charge of setting it down at his own request ; but if witnesses have been ex- amined, and publication passed, there, though the plaintiff should sleep three terms, it must be set down *ad requisitionem defendentis, be- cause the court cannot make a decree upon acquiescence when the plaintiff might have proved the allegations of the bill. If at any time the cause sleeps for a year, whereasuhpoena ^ -, ' • rn 1 T n t ., ad faciendum at- the plaintm must serve the defendant with a tomatum is re- T J. 7 j» • 7 qaisite, subpoena j ad faciendum attornatum, unless the defendant's clerk in court will voluntarily ap- pear, though it is thought fair practice, if the defendant be living, to go on without such ser- vice; and the reason of the subpoena ^ad fuci- endum, attornatum, was, because the defendant might be dead in so long a time, and therefore they thought the first appearance by the clerk in court not sufiicient to found any other acts of the court on, unless a clerk in court would appear for him, and then it was presumed that the defendant was living. * At the defendant's request. \ To make an attorney. 8 114 FOEUM ROMANUM. [Chap. VII. CHAPTER VII. Araator Redri- □ues de I Prob. 196 gues de Forma, Pr " ■ Lanul. Jastif. of Canon Law, 92; Gail. 167, de Dilat.; Maranth. de Dilat. 305. Peers, 210. OF THE EXAMINATION OF WITNESSES AND PASSING PUBLICATION. That which closes the *litis contestatio is the subpoena to rejoin, and the civilians and canon- ists held that it was absolutely necessary that there should be a citation to the defendant pre- vious to the examination of witnesses, otherwise the ^receptio testiiim is an absolute nullity ; and the reason they give is, that the defendant, if cited, might either examine or object to their credibility, or put such cross-interrogatories to them as might bring out circumstances in .his favor which he would not have an opportunity of doing if he was not cited ; but it is not neces- sary for the defendant to appear, because the citation is in his favor, and he may renounce a privilege introduced in his favor. They had anciently at the civil law, as ap- pears by the ninth Novel, cap. 4, col. 7, tit. 2, §de testibus quia vero, three probatory terms or dilations, according to the rule of the civil law. II In testem testes, et in hos, sed non datur ultra , in the first probatory ternl, the plaintiff and defendant were to produce their first set of witnesses; in the second they were to brine witnesses to ^heir credit, or to invalidate their *The contesting of the suit. f Admitting evidence. I Of witnesses who from the truth. || Witnesses in sup- port of testimony, and others in support of them, but no fur- ther. Chap. VII.] PORUM EOMANDM. 115 testimony ; and in the last probatory term they were to restore the credit of their first witnesses ; and it was with great difficulty they granted a fourth probatory term, and that was upon Nevius in Novel '^ . „ ISO ; Golhefred in the solemn oath of the party moving for it, cod.Iib.4,dep^o- ■'^ -^ ° ' h,at. 1. 19, et qui and declaring upon such oath that he or his semei. advocate had seen none of the depositions, nor knew what was contained in them, and over and above the *juramentum calumnice, swearing again that it was not done out of vexation nor to protract the cause, for it was highly pre- sumptive, without an oath, that the desiring the fourth probatory term was to that purpose ; but after the fourth dilation there was to be no fifth probatory term even -fjussione divind. The judge was to examine upon the articles; but it was in the breast of the factor to ex- hibit' interrogatories, founded on the articles, but not of necessity ; but if any interrogatories were exhibited not founded on the articles, the depositions taken upon them were to no purpose. One of the judges of the court himself an- oaii, lai, s. ciently examined, and therefore he might form the interrogatories out of the articles as he pleased ; but the adverse party was to exhibit interrogatories for the judge to examine upon, because the matter upon which the defendant might cross-examine to invalidate might not be within the articles; but no copies of the interrogatories were to be given to the adverse party. Upon the articles and interrogatories thus *Oath of not proceeding out of malice, f By the Emperor's command. J Plaintiff, 116 FORrM ROMANUM. [CsAP. VII. coiviD. de Test- exhibited, the iudge examined, and he was to ibus, lib. 22, tit. 5, • . , , , , . -i n in Digest, consider whether the witnesses answered read- ily, or whether they brought a story formed to him. The depositions thus tafeen before the judge were to be kept secret till publication, and the judge was to use his endeavors with the parties that they should renounce any further produc- tion of witnesses before publication, because the parties should not bring false witnesses to dis- prove what had been sworn to. If the place was remote where the witnesses lived, the court would appoint commiesioners to examine such witnesses, commonly sending a notary of their own, who was often in com- mission with them, and with these commission- ers they sent a copy of the articles; but the parties might exhibit interrogatories for the commissioners to examine upon, as they did to the judge, and these commissioners were to ex- amine themselves, and could not delegate their Maxim. po wer, for * delegata potestas non potest delegari. These commissioners could not send process to the witnesses, because they were delegated only to examine, but the process must be taken out from the court itself to the witnesses to make them appear. These commissioners were likewise to be in- difierent; for upon exception to the partiality of one of them, the court would supply his place by putting in another. These witnesses were to have their charges, and the rule was that rich persons were to have their expenses only, because they were not to * A delegatBd power cannot be assigned. 2 Inst, 597. Chap. VII.] FORUM ROMANUM. 117 be paid for doing their duty; but the poor were not only to have their expenses, but the' price of their labor over and above, that they might not be damaged for doing their duty. The civilians had a manner of examining Examination of ^ . , . 1 • T witnesses to per- witnesses ^tn perpetuam rei memoriam, which petuate their tes- «,-,.,. . . timony. was twoiold: either the common examination or ^in meliori forma. The common examina- tion was, when the witnesses were very old and infirm, or sick and in danger of death, or were going into other countries. In this case it was usual to file a libel; and without staying for the ^liiis contestatio, the plaintiff examined his saii 162,3,4; ., ■ T i. 1 ■ • 1- -e -J. Venat. Anal. 251, Witnesses, immediately giving notice, it it were 2,3,6,6, &o. possible, to the other side, of the time and place of the examination, that he might come and cross-examine such witnesses if he thought fit, and these depositions stood good in case the witness died or went abroad. But the plaint- iff was obliged to \\edere actionem within a year, otherwise these examinations went for nothing ; but if the witnesses lived, or did not go abroad into other countries, then they were to be examined Xpost litem contestatam. The examination **{n perpetuam rei memo- venat. ibid. riam, in meliori forma, is flad transumenda itistrum^nta ; and in this case there must be a ^litis contestatio before the examination, be- cause there is no need of so much celerity in proving the instruments as there is where the witnesses are likely to die, or are going into * To perpeuate testimony. f In better form. I Contesting of the suit. || To produce his libel. J After contesting the suit. **To perpetuate testimony in better form. ft To establish instruments. 118 FORUM EOMANQM. [Chap. VII. remote parts. In these cases, they are not bound to proceed in any action upon these in- struments within a year ; hut in both cases it seems that the *puhlicatio testium was when the judgment was begun before the ordinary judge, or which is all one, when there was a f litis contestatio. To the libel or petition before the judge for examining the witnesses §c?e iene esse, the interrogatories must be annexed. The names and ages of the witnesses to be examined must likewise be inserted, and it must be suggested venat. Anal. 251, in them that they are sick and infirm, or going abroad into remote parts, as the case happens to be, and whether the party against whom such supplication is formed is to be plaintiff or defendant. If the person against whom the supplication is formed is to be \\acf,or, you need not put in the age of the witnesses, and that they are in- valids, in your bill, because such \\actor, not being confined to proceed within a year, but being left at liberty to proceed when he shall Venat. 256. think fit, the Xsupplicator may examine any witness, since there may be danger that he may lose his witness, when the adverse party may proceed at any time. Maranth. 250, de The uext thing was the passing of publica- publio. . ,„ 1,1 -, tion ; and formerly the adverse party was cited for that purpose ; but afterwards the use pre- vailed to give a rule to the adverse party to Gail. 181, and so show causc in four days why publication should on, de public. , ,.„.,. , not pass; and if within that time he did not * Publication of the depositions, f Contesting of the suit. J Conditionally. || Plaintifif. X Petitioner. Chap. VIL] FORUM EOMANUM. 119 show cause for prolonging the prohatory term, then puhlication passed ; and afterwards there could be no examination of witnesses, unless by the special direction of the judge, upon good cause shown, and an affidavit of the party that he or those employed by liira had not nor would see the depositions of the witnesses which were published, by reason of the mani- fest danger of perjury and subornation of wit- nesses, in case examinations should be allowed after publication. But after publication, there might be * editio Oaii.as before. instrumentorum, till the conclusion of the cause, because there was no danger of perjury upon the proof of such notorious instruments. The judge was not concluded by the publi- saii. ise. cation to examine either of the parties upon personal interrogatories, or to re-examine the witnesses themselves. The last act fquoad the proof was the ^con- Maranth. 357, de . 1.1 -IT • f 1 oonclus. ciusiE. clusio causes, which was concluding in tact, and that was an instance of either party to the judge that either party should renounce all further proof; and if the party did renounce the proof, there was a conclusion ; but if he did not oaii. isd, de oon- show any cause why he should not, for his con- tumacy in not renouncing, the conclusion was taken \\pro confesso; but this is not the essence of the proof. After the conclusion in the cause they moved or petitioned the judge to set down the cause to be heard, which they called ** ad allegandum injure, and then there was a citation to the de- *Aii edition of the instruments. \ ks to. §Conclu- sion of the cause. || As confessed. ** Arguing in court. 120 FORUM ROMANUM. [Chap. VII. fendant to appear at that day ; and upon proof of the service of that citation, and reading his answer and proofs of the cause, if he did not appear, the advocate for the plaintiff first ar- gued, and then the advocate for the defendant, and thereupon sentence was given. The Proceedings in Equity. Totiiei, 20. With us there must be a subpoena to rejoin, which is the same with the citation on the ex- amination of witnesses, and on the return of that subpoena, the ancient way was to give the defendant a rule to rejoin the same day sen- night, and afterwards two returns were allowed for the defendant to produce his witnesses, and then a peremptory day, before which day the defendant might come in and have a commis- sion to examine witnesses of course, without motion. But the ancient books say he shall lose the,benefit of rejoinder ; that is to say, he shall rejoin no new matter, as anciently they might ; and the reason was, because when the rules for rejoinder were out, he could not rejoin ; but the replication was to be taken as uncontroverted. The time appointed by these rules for re- joinder concluded the *lis contestata. The two ordinary days of return, and the peremptory day, were the first, second, and third probatory term ; and then, 'if the defendant did not come in and proceed to examine his witnesses, in conjunction with the plaintiff, the plaintiff' had a commission fex parte; because the defend- ant's probatory terms being out, the plaintiff might proceed alone, though during such pro- * Contesting the suit. f On one side only. Chap. VII.] FORUM ROMANUM. 121 cedure the defendant cannot join in the com- mission, because he has taken no steps to that purpose, yet he may examine his witnesses in the office, because before publication the rules run equal for each side to examine before the judge ; but the commission, after the peremp- tory day, being in the nature of the fourth probatory term, at the end of that commission they may pass publication ; for the defendant could not, in delay of such publication, pray a commission, or further time for the examina- tion of witnesses before the judge ; for that had been to desire a fifth probatory term, which the civil and canon law never allowed. But afterwards they came to this rule, that How plaintiff the defendant being served with a subpoena to order to oblige . . . . „ „ defendant to re- reioin, the plaintm was oi course, upon produc- ioin in commis- ing an afiadavit thereof, to have an order for afterservice; and ° ,,'.., eight days after- the defendant to reiom and loin m commission wards piaintttr •^ ^ may talce out a in four days, giving the defendant's attorney commission ex J ' o ^ ... parte at liis own notice thereof; and the plaintiff might there- °°^'^- upon, in eight days afterwards, leaving his commissioners' names at the office, have at his own cost a commission *ex parte, directed to two of the plaintiff's commissioners, and two such as the officer should think fit to nominate. If the defendant's attorney having notice, if in town, did not in that time name commissioners for the defendant, and pay half the costs of the commission, and if afterwards the defendant desired to examine any witnesses on his side, he would be barred from having any commission, without special order from the court, where good account must be given of such laches. *0n one side only. 122 FORUM ROMANUM. [Chap. VII. By this rule it should seem that the four days were given for the rejoinder, and the eight days for the three probatory terms, in which the defendant was to examine. But the canon- ists themselves having relaxed the notion of the three probatory terms, and put them all into one, and there being no absolute necessity that the client himself should have immediate no- tice, but his clerk, they have therefore con- The practice now tracted the whole act of proof into one motion, which is this, that the service of the subpoena to rejoin on the clerk in court be good service that the defendant should rejoin *gratis, and strike commissioners' names in eight days, and that the defendant should examine his witnesses this vacation, and publication pass the first day of next term. Pract. Reg. in If the plaintiff serves the defendant with a If subpcena to re- subpcena to rejoin before he has a replication, cation filed, de- the defendant appearing upon such subpoena fendant shall -^^ , , •, . «. have costs. shall liave his costs taxed, because the plaintm had not closed his contest of the answer before he served the subpoena to rejoin to put the de- fendant upon the proof of it. Of the commission to examine ivitnesses. The commission sent to the commissioners is to examine '\dc quihusdam inter rogatoriis, tarn ex parte querentis, quam ex parte defendentis. And here it is to be known that the examina- tion in court was originally in chancery, before How an examina- the master of the rolls, who was one of the tion might for- ., n.i ii /. , •, meriy have been judges ot the court, and therefore it should * Without costs. f Upon certain interrogatories, as well on behalf of the plaintiff as on behalf of the defendant. Chap. VII.] FORUM ROMANUM. 123 seem that the examination might be upon the bill, without interrogato'ries drawn and framed, as the examination with the canonists may be drawUj upon the * libellus articulatus; but after- wards the master of the rolls, having left the examination of the witnesses to his clerks, as the barons of the exchequer did to theirs, from thenceforward the judge did not, but the coun- sel for the party, whose witnesses were to be examined, framed the interrogatories, upon which the clerks examined, and so from thence- forward it became the practice to send the com- mission to the commissioners to examine upon interrogatories, as the examiners did above. If either party examine in town, the exam- ord. cur. 204. . . , , i . , J ii 1 What notice, and ining party must give a note to the adverse to whom to bo , , , , 11- J. ^i.1, given, if the party party s attorney, or clerk in court, 01 the names examines m and place of abode of his witnesses ; and by the rules in England, he was to show him to the adverse party's clerk in court, and such person so producing his witnesses may examine them within four days ; but the court will oblige such person to produce his witnesses, some time before publication^ to be cross-examined by the other side, in case such witnesses do not appear upon the subpoena ^ad testificandum, other- wise the depositions shall be suppressed. But on examination in the country, the person who has the carriage of the commission must give fourteen days' notice, either to the party himself, his attorney, or to the other two commissioners, see exchequer This fourteen days' notice was the ancient notice ^^tlplclXf^^y of a trial in a cause at law, and from thence taken. * Articles of the libel. f To testify. 124 FOECM EOMANUM. [Chap. VII. Each party deiiv- The interroffatories Were anciently annexed ers his interroga- , , toriesatthe to the commission, and so they are now sup- openingofthe ' , . , commission. posed to be ; but by consent of parties, they are delivered to the commissioners at the opening of the commission, and this is the present prac- tice. For the expediting such commissions, the way is, that each party give four commis- sioners' names, and each side strike out two ; but, if there be any objection to all the four, the party making such objection may move the court that the other side may name other four, or that the master may strike other commis- sioners' names *ea; "parte, because, though the commissioners are named by the party, yet that is but by way of proposal to the court, for they ai-e the ministers of the court, and there- fore must be impartial. The commissioners can only examine upon the set of interrogatories that is first put in before them, and no new ones can be examined upon before them, without leave of the court, be- cause their commission is to examine upon such interrogatories as are supposed to be annexed to the commission, or such as are delivered in at the opening of the commission, which now come in the room of those formerly annexed ; and it is presumed that there has been a dis- covery made of the proofs, when the party is desirous to examine upon a new set of inter- rogatories. But before the examiner they may examine upon a new set of interrogatories, because that is presumed to be the examination of the judge, and the judge may examine upon interrogato- * Oa one side only. Chap. VII.] FORUM ROMANUM. 125 ries * ex re natd, out of the articles ; besides, the examiner is at the peril of his office to make no discovery of the proofs. The plaintiff has resrularly the carriaM of when piaiDticr , ■'.. °, •' . . '^ not entitled to the commission, and so is to appoint time and the cin-aige of ' '^ '^ the commission. place ; but if the defendant supposes that the plaintiiF will aggrieve him by such appoint- ment, he may move for a duplicate of the com- mission, and that the officer may appoint time and place. If the plaintiff or his commissioners abuse the carriage of the commission, by making un- necessary adjournments, or an irregular exam- ination of the witnesses, that may entitle the defendant to a commission of his own, and that he may have the carriage of it himself, because he shall not be obliged to produce and examine his witnesses, where it cannot be done impartially. The fail- examination by commissioners is commissioners not to adjourn without necessity, because that "° °" ^°'"°' would be to harass the defendant, by obliging him to travel from place to place to cross-ex- amine ; but if it be necessary, they may adjourn not only in time but place. And this affair must be performed, as far as it is possible, fMWO Must be done in actu, that there be as little opportunity as possi- bie?"° "'' ''°^^*' ble to divulge the depositions, that neither side may better their proof. When a witness is produced, he must first be examined upon the interrogatories of the producer, and then forthwith, without suffer- ing him to go abroad, upon the cross-interro- gatories of the other side ; and the depositions *0n the matter which arises. f All at once. 126 rOKUM ROMANUM. [Chap. VII. are to be read over to him, every sheet whereof he is to sign, that so they may have the sense of the witness *ea; re natd, without being tam- pered with. The depositions being thus taken, are to be bound up, and signed and sealed by the com- missioners, and sent by a messenger of their own to the court out of which the commission issued, who is to swear that they were not opened or altered since they were delivered to him. Within what dis- Witnesses are not to be examined by com- tanne of the tovfn . . -.i • . -i I'j.i l i. commissions njiissioners Within ten miles oi the town, because issue. that is the circuit of the court, and so the dis- trict of the examiners. If any of the commissioners obstruct the others in their examination, or examine irreg- ularly, they may certify such misbehavior to the court without affidavit, because, being offi- cers of the court, they are , allowed to certify. But there must be a complaint from the party Party iniured injured by affidavit, otherwise the court will must oomplnln to , , i ,• r j^t • j.-n j. i i the court by affi- not take noticc 01 their certiiicate alone, because they are appointed for another purpose, and are not to certify to the court but of necessity. Who to pay the The witnesses are to be paid by the producer, witnesses. tip .,. according to the rule beiore liientioned in the civil and canon law. There must be a subpoena \ad testificand. taken out, directed to the witnesses, and a sum- mons from two of the commissioners, of the time and place where they are to be examined; and if the witness so summoned and served does not appear, the court will grant an attachment *0n the matter that arises. f To testify. Chap. VII.] FORUM ROMANDM. 127 against him, unless he comes up at his own expense to he examined hefore the examiner. Or, if he be summoned by the commissioners Pjaot. Reg. in ' •' Chan. 80, 90. without a subpoena *ad test., and does not ap- pear, the court will order such witness to attend at his own expense, and to be examined ; and if he disobeys such order, then an attachment will go against him. If there be due notice of executing the com- Pfaot. Reg. in ° ■ . Chan. 87. mission, and at the day appointed the commis- sioners meet, and the commission is opened, but no witnesses examined, nor any adjournment made, the commission is lost. But if it be not opened, they may give fresh notice, and proceed, unless, in the meantime, the court be moved, and an order made to pay the costs of the for- mer day before they proceed. And the reason of this rule seems to be that the not adjourn- ing is a refusal of the commissioners to act any further upon it; for though the court it- self never adjourns, because it is always open, yet the delegated power must adjourn, because they have no standing and constant power as the seal has, but their power arises from the words of the commission, which are f quod man- Rrax. Aim. our. damns, quod ad certos dies et locos, quos ad hoc provideritis , testes prcedictos coram vohis venire faciatis, et advocafis; so that if they do not provide time and place by an adjournment, they have no authority to act further by that commission, for the delegated authority must * To testify. ■f We command you that you cause to come before you by summons, at certain days and to certain places, which you shall appoint for this purpose, the aforesaid witnesses. 128 FORUM ROMANDM. [Chap. VIl- Pract. Beg. in Chan. ST. Praet. Keg. in Chan. 87, 88. pursue the words of the commission, or else it will be construed as a refusal to act. But if they do not open the commission, their not act- ing at that time will not be construed as a re- fusal to act, but it is harassing the defendant, for which he may complain to the court, and have redress; and their not acting before the commission is opened is not construed to be a refusal, because they do not know what their authority is till the commission is opened. Where one of the plaintiif's commissioners meets, and one of the defendant's, and the com- missioner for the plaintiff refuses to act, the commission is lost, but the plaintiff shall pay the defendant his costs, and the defendant shall have a new commission, and the carriage of it ; and so it is when any commission is lost through the default of him who has the carriage of it, for he is unworthy to have the carriage of the commission who appears to make default in the execution of it. If due notice be given, and one side proceeds and examines his witnesses, the other, if he does not examine, shall not have a new com- mission, unless affidavit be made of some rea- sonable cause of his non-attendance, and that neither the party who did not examine, nor any for him, or by his direction or knowledge, has seen, heard, or been informed of the depo- sitions taken, or any part of them, nor will- ingly will see, &c., till he has examined or till publication ; this is, that the deliendant may not have an opportunity of knowing what has been proved for the plaintiff, and so be able to contest it. Chap. VII.] FORUM ROMANUM, - 129 And where such new commission is granted, it shall be all at the charges of the defendant, and the plaintiff is permitted to cross-examine without charge. But if the plaintiff will, upon such new com- mission, produce any witnesses, he must he at equal charges of the commission, hecause he has equal benefit by the examination of his own witnesses.. But he at whose instance a commission is re- Praot. Reg. jq newed, must examine all his witnesses upon such commission, or in court before the return of it, because he cannot be indulged in a further pro- batory term. If the commissioners on both sides attend the ibid. ss. execution of the commission, and the one side examines, and the other neither examines nor puts in any interrogatories, he shall never after- wards examine, unless upon special order of the court, upon good cause shown, because he must not form his interrogatories upon the dis- covery made to his commissioners of what the other side examined to. A commissioner may be examined by the ibid. 91. other commissioners, if he be examined first before any other depositions taken in the cause ; but if any other deposition be taken in the cause, his depositions shall be suppressed, for if it were otherwise, a commissioner might lie in wait, and after having knowledge of the depositions, might by his oath contest the same. If the master appoint time and place, yet the ibid. 91. commissioners may agree to adjourn, because the appointment of the master is only for the opening of the commission ; and therefore, if 9 130 PORUM ROMANUH. [Chap. VII. the commissioners agree, they have yet power to make proper adjournments. Where the commissioners meet and examine, Praot. Reg. in and afterwards adiourn, and one of the defend- Chan. 93, 94. , ... , . . ant s commissioners takes away the commission, and the other commissioners meet at the day adjourned, and examine witnesses, and return the depositions, the court will order such depo- sitions to lie, and the suhpoena * duces tecum to issue against the commissioner who took away the commission, that he may hring the author- ity by virtue of which the depositions were taken, for if they had a proper authority, the not having the commission before them does not impeach the depositions. When the parties have examined, they give a rule, as they do in the canon and civil law, for publication, and if no cause be shown to the contrary within four days, the rule is made absolute. The present practice is, when a full answer is put into a bill, if the plaintiff is in good earnest to proceed in the cause, he forthwith files a replication in the office to the defendant's answer, and he may, if in term time, sue out a subpoena against the defendant to rejoin, re- turnable at a day certain, and he may, if he pleases, serve the defendant therewith; (un- less where the defendant lives in town, and may be with ease served ;) for then it is most usual to apply , by petition or motion, that a sub- poena to rejoin, returnable immediately, maybe awarded against the defendant, and that ser- vice thereof on the defendant's clerk in court * Bring with you. CSAP. VII.] FORUM ROMANUM. 131 may be deemed good service of the defendant. This is of course, and is never denied. But to this is often added, especially in a country cause, that the defendant may join and strike commis- sioners' names, sometimes in' four days, and sometimes in a week, that the plaintiff may have a commission * ex parte, directed to his , own commissioners ; and this is also of course. And to this is too frequently added, that publication may pass the first day of the suc- ceeding term, if the motion or petition happens to be in vacation time, or the last day of the term, (if moved on the first day of the term.) As also that the plaintiff may be at liberty to set down his cause to be heard some time the same term. Now, as to passing publication and hearing the cause, this is discretionary in the court, to do therein as they please; and the court is very cautious how they grant this part of the motion, since it is speeding the cause in an extraordinary manner, and beyond the or- dinary rules of the court, and often clogs the paper of causes, so that it cannot be got through in any reasonable time, especially where there are a great number of causes then set down. And by the ancient rule of the court, there was always a term between pass- ing publication and hearing the cause, to the end the suitors might have timely notice to prepare and get ready. Not but that there may be some cases were such an extraordinary order is absolutely necessary, as in the case of an injunction, which is kept on foot till the hearing, or where the plaintiff hath met with * On one side only. 132 FOKUM ROMANUM. [Chaf. VII. great delays from an obstinate defendant, or where the matter in question is purely an ac- count between the parties ; but the general ob- servation is, that these orders for hastening on of causes in tliis extraordinary manner had better been left alone, for they but too often > surprise the parties, and are the occasion of fresh trouble and more motions to the court, to en- large publication and put oif the hearing; and unless the court is' very empty of causes, which seldom happens^ they had better deny such a motion. Each party names four commissioners for the examination of witnesses, and two apiece are struck out of each side. The plaintiff hath always the carriage of the commission ; but the court will, in some cases, indulge the defend- ant with a duplicate of the commission, especi- ally if it is doubtful whether the plaintiff will execute his commission or not, and more es- pecially if he is forced on by the defendant, (as in an injunction cause, where delay is only de- signed.) If the plaintiff, who hath the car- riage of the commission, refuses to give notice of the execution thereof, or does not intend to execute it, then the defendant may make use of his duplicate, and proceed to the examina- tion of his witnesses by virtue thereof; but Duplicates of these duplicates are seldom asked for, and as dom™rantod.°^' rarely granted, but upon good reason offered to the court, and upon extraordinary occasions, or by the consent or agreement of the parties among themselves ; and all commissions for ex- amination of witnesses, are to be made return- able upon some one of the returns in or before Chap. VII.] FORUM ROMANCM. 133 the term, unless where the parties agree that it shall be made returnable *sine dilatione, as sometimes happens. If a defendant joins in commission, and names commissioners, and yet afterwards refuses to strike, the court, upon a petition, will strike out such two of them as they please, and the commission shall go to such of the four com- missioners as are left standing. There must be fourteen days' notice given by the commissioners to all the defendants of the time and place of the execution of the com- mission, for else it is not good notice, and the depositions will stand suppressed for irregu- larity, in not pursuing the tenor of the com- mission; but where it is a short vacation, as between Easter and Trinity terms, ten days' notice or less is good. No commission can be No commission , , . , , . , , , „ , , can be executed executed in term time, unless- by leave or the in term time p , . p , without leave of court, or consent ot the parties : for the com- tiie court or con- . sent of the par- liiissioners being generally country attorneys, t'es. it is more than probable they are in town at- tending the term on their other clients' affairs, and consequently cannot attend upon the exe- cution of the commission. If two of the plaintiff's commissioners at- tend at the time and place appointed for the execution of the commission, they may pro- ceed therein fex parte, (if the defendant's com- missioners do not then attend.) But if the defendant's commissioners attend at the time and place appointed, and the plaintiff's com- missioners are not there, they cannot go on, because the plaintiff, having the carriage of the * Without delay. f On one side only. 134- FORUM ROMANDM. [Chap. VII. commission, will not produce it if he is dis- appointed of his commissioners, and conse- quently there can be no proceedings for want of the commission. This makes a duplicate of the commission more necessary; for, in that case, if the defendant's two commissioners meet, they may proceed in the execution of the commission. But where there is no dupli- cate, and the defendant's commissioners attend at the time appointed, and none appear for the plaintiff, the party aggrieved is to be recom- pensed in costs, upon complaint made thereof to the court ; and in that case the court will give him leave to sue out another commission, and order him the carriage thereof. One commissioner at least must attend on each side ; for if the plaintiff hath but one com- missioner that attends on his side, he cannot proceed to execute the commission, unless one of the defendant's commissioners attends and joins with him therein ; but if one commis- sioner for each party attends, they may pro- ceed in the execution of the commission, and not otherwise. The commission being opened and read, both parties are obliged then to exhibit their in- terrogatories, (if they intend to examine any witnesses,) and consequently, if the plaintiff ex- hibits his interrogatories, and the defendant neglects to do it, and yet by his commissioners attends the execution, whereby they have an opportunity of hearing and seeing everything that is proved on the plaintiff's part, and yet, perhaps, all this while they have exhibited no interrogatories ; and after all this, it often falls Chap. VII.] FORUM ROMANUM. 135 out that, the defendant moves for a new com- mission, upon suggestion he had no opportu- nity of examining his witnesses at the last commission. If it shall appear to the court, by affidavit or certificate of the plaintiff's com- missioners, that the defendant's cOmmissionerSj attended during the whole time of the execu- tion of the commission, and never exhibited any • interrogatories, in this case the court will never grant the defendant another commission, and he must take it for his pains, since he lay upon the watch and catch only to see what the plaintiff proved, and then, at another commis- sion , to exhibit interrogatories adapted to such matters and questions as .might tend to over- throw all that had been done; and he shall never be admitted to have this unfair advan- tage over his adversary, for if he is admitted, aftier having knowledge of all that his adver- sary hath proved, to exhibit interrogatories, he may easily conceive what interrogatories to exhibit, and how to hit the bii-d in the eye ; and therefore it is incumbent on him to exhibit his interrogatories, if he ask for a new commission, otherwise he can never have it. He ought at least to exhibit interrogatories, and, in truth, if interrogatories 1 . . • 1 J. J. -J.! J 1 i_ are exliibited, it his commissioners ought to withdraw; but, is in the power ot , -n • , , • 1 -1 -i 1 -i • the court to however, it interrogatories are exhibited, it is grant or deny a ,, p ^, . ^ J , new commission. in the power oi the court to grant or deny another commission, (as the circumstances of -the case, upon affidavits or the certificates of the commissioners, appear.) And care must be taken (if a new commis- sion is granted) that neither party add nor alter their interrogatories. They must examine upon 136 FORUM ROMANUM. [Chap. VII. the old interrogatories which were exhihited at the former commission, and are not to add any new ones without special leave of the court, and they are to be settled by a master, and are never done but in extraordinary cases. If the party examines some witnesses in town, and others by commission, he is not obliged to ■ exhibit or file his whole set of interrogatories in the examiner's office. He only files such as he , hath occasion to examine to in town. But they must be the same as were exhibited before at the commission. If this were otherwise, it would put the plaintiff to a double expense in paying for copies of the whole interrogatories twice over. If a commissioner is to be examined as a witness at the commission, he must first of all be examined by the other commissioners, after which he may join and proceed in the execu- tion of the commission as a commissioner ; for when he is examined as a witness, he hath noth- ing more to do but to act as a commissioner. If a plaintiff wants to examine a defendant as a witness, he must obtain an order by motion or petition for that purpose. This order is of course, and must be served on the adver.se party's clerk in court. The defendant may ob- tain the like order to examine a co-defendant as a witness. But all these orders are upon a suggestion that the defendant is not concerned in point of interest in the matters in question. • And they are never granted but with a clause of saving just exceptions to the other side ; and this must be made at the hearing of the cause. And this order for examining a defendant as a Chap. VII.] FORUM ROMANTJM. 137 witness must he produced at the commission or in the examiner's oifice when the defendant attends to be examined, without which he can- not be examined ; for it is by virtue of that order and the authority given them by the court that empowers them to examine him, and they cannot do it otherwise. And though it is a fundamental rule ofEuie. equity that one defendant's answer cannot be read so as to charge another defendant, no more than a decree can be made, upon the tes- timony of one single witness, against the flat and positive denial of a fact by answer, because the oath of the party is ever looked upon in equity to be as good as the oath of a single person. Yet cases may and do often fall out wherein the court may ground a decree upon the oath of a single witness, attended with other cir- cumstances to corroborate it: as where the an- swer of the party appears to be notoriously falsified, by which means it comes to lose that credit which otherwise it would and ought justly to have. And it is conceived one defend- ant may be a very good witness for another, especially where he is not concerned in point of interest in the matter in question. And there is another method for either party Examination of to proceed in the examination of their witnesses : oWer^^^ "^ as where one man brings a bill against another, ifabiiitoperpet- and hath a most material witness to examine ; mony oVwitness- upon affidavit made that this witness is in a wlii'bc^lsmis^sed! languishing condition, or in danger of dying; Butyeitiiepirtint- / ^ '. ° ■{ ^iffmayusetlie before he can be examined in chiei, or where depositions at law. ^ the witness is going a long voyage to India, ^ wms. 102. 138 FORUM ROMANUM, [Chap. VII. Depositions talven de bene See Godb. 193. or other remote parts, from whence he cannot return by the time he is to be examined in chief, and to which place he is bound, and can- not , possibly stay ; in either of these cases the court, upon motion or the petition of either party, will and never denies to make an order as of course for leave to examine such a wit- ness *de bene esse, saving just exceptions to the other side. If the witness lives till he can be examined in chief, he must be examined over again, as other witnesses in chief are ; but if he dies in the meantime, then, upon producing and prov- ing the register of his death, the party for whose benefit he was examined may apply by petition or motion for an order, with liberty to publish his depositions ; (it cannot be published without such an order;) and to the petition must be annexed the certificate of the death of the witness, and the party must show that he died before he could be examined in chief And hereupon the court makes an order, not only to publish his depositions, but to read him as a witness at the hearing, saving excep- tions ; and notice of this order is always given to the adverse party's clerk in court, to prevent surprise, and to give him an opportunity to ob- ject thereto as he shall see occasion. If the witness beyond sea is not returned, there must be an affidavit of it, and that the party hath not heard from him for such a time, nor doth he know whether he is living or dead ; and in this case there will be the like order as * Conditionally. Chap. VII.] FORUM EOMANDM. 139 in the case of the witness who died before he could be examined in chief. Since by common experience it is but too where oommis- f., nj,, , , .. iTi sioners aie upon oiten tound that country commissioners publish oath not to ai- and divulge all the evidence taken before them, tiona before pub- and this even before publication, and that in such a manner that it is rarely or ever to be detected, because they disclose it only to the attorney or solicitor who employs them, and who is their friend; and since the very life and vitals of almost every cause and of every • man's property lies in keeping close and secret- ing his evidence till after the depositions are published, because after that there is an end of examining, unless where it is to prove exhibits, which may be done after the hearing, or by order *viva voce, and then they must be par- ticularly named in the order, that the other side may have notice what is to be proved *viva voce; and this can be only to prove the execu- tion of deeds, or signing receipts or acquittances. A man cannot have leave to prove a will *viva voce at the hfearing, because the due execution ^ay come into question, which cannot be ex- amined at the hearing *ore tenus, but ought to have been done before publication passed. It would be highly necessary to think of some expedient to prevent the mischief of this growing evil, and it is conceived the country commissioners ought to be upon oath, (a^) as (a) They are so well as the examiners are, the words of whose praotfe™" ""' oath are to this effect, viz : ' ' You swear that, according to the utmost " of your skill and cunning, you shall well and * By word of mouth. 140 FORUM ROMANUM. [Chap. VII. ^' truly execute and exercise the office of one of " the examining clerks, under one of the chief "examiners in the King's court of chancery, " whereunto you are admitted; and you shall " duly, justly, and impartially examine the "causes that shall be committed to you, with- "out any favor or affection to any person or " persons, otherwise than of right appertaHieth " concerning the same. And you shall be at- " tendant as well to further the King's busi- " ness in the same causes, from time to time, as "need shall require. And you shall not pub- " lish or show the same depositions to any per- " son or persons, before publication in the court, " without consent of the same court. So help "you God." If country commissioners are, by a general rule of the court, to be upon their oaths, there must be some variation in the oath from that above. It is conceived this may be added to the printed rules of the court, if the lord chan- cellor pleases or thinks it necessary to make such a standing order. The examiner's office extends itself, and has a right to examine all witnesses in town or within ten miles thereof; and if any commis- sion is made out or witnesses examined within that district, the depositions taken by commis- sion will, upon complaint, be suppressed, and the clerk who made out the commission stand committed for a misbehavior and breach of the known duty of his office. And this happened in Mr. SJimv's case, one of the clerks in court, where the commission was executed, and the wit- ness examined at a tavern in Chancery Lane. Chap. VII.] FORUM ROMANUM. 141 If any practice!' or other person goes atout Praotioers tam- . pering witli or to tamper with or suborn any witness, upon subonung wit- f PI ■ nesses to stand complaint made thereof, and upon examination committed. of the matter upon oath, he must stand com- mitted. When interrogatories are filed in the exam- iner's office, the witness is carried to the seat of the examiner, and a note in writing is there taken of his name and place of abode, to the end the other side may cross-examine him, if they think fit ; and to prevent the personating of any witness, he is constantly carried in per- son, and showed at the seat of the adverse party's clerk in court. This being done, he returns back to the examiner's office, and is there examined. If interrogatories are filed for his cross-ex- amination, the party who produces him is obliged to procure him to stay, or return and attend to be examined; but if no such inter- rogatories are filed, or he is not demanded to be cross-examined at the same time he is under examination, and if he goes away about his business, the party who intends to cross-ex- amine him must get him examined as well as he can ; and the adverse party is not in that case bound to produce him over again to at- tend to be cross-examined, since it was the party's fault he had not his interrogatories ready to have cross-examined him whilst he. was under his former examination . Neither the examinations nor depositions which are taken by commission can be pub- lished in any case whatsoever till publication is duly passed by rule in the office, or by mo- 142 FOEUM ROMANUM. [Chap. VH. tion or petition; for it may be done either way. Publication And therefore, when publication is moved never enlarged n •,-,•,' -, . i but upon suffl- tor to be enlarged, it must be upon notice, and cient affidavits. /h^ t t upon good reasons offered to the court, and upon affidavits showing the reasons why the party could not examine his witness sooner ; and it is seldom or ever done, where it is to put off the hearing of the cause. Or where the ad- But where the adverse party can suffer no verse party can . . , ,, • ^ , i suffer no injury, lujury, as where the cause is not set down, or where the party is not served with a subpoena to hear judgment, there the court will enlarge publication upon asking for. And in some cases they will do it, (though the cause is set down, and the party served with a subpoena to hear judgment.) But this must be when it is showed to the court that it is not possible for the cause to come on very soon; and the court will in this case expect the party to appear * gratis to hear judgment in six days, on notice being given to his clerk in court, and to pray no day over ; and will often oblige him to take no advantage for want of parties at the hearing. This forwards the plaintiff; for if default is made at the hearing, the decree cannot be made absolute till the next succeeding term. But if the party who moves to enlarge publication will not agree to ^ appear *gratis, and pray no day over, he is often denied his motion, and with great justice, because in that case he intends only delay, which the court always avoids when in their power. * Gratuitously. Chap. VII.] FORUM ROMANTJM. 143 If the examiner is served with an order whereby publication is to pass on such a day, he cannot afterwards examine any witnesses, though it often falls out that three or four witnesses have been before that time sworn to the interrogatories, but have not attended to be examined. In this case the party cannot examine them without leave of the court, which is seldom denied on motion. If a witness is duly subpoenaed to attend and be examined, and he refuses to attend, then, upon certificate from the examiner that interrogatories are filed, and the witness hath not attended to be examined, he shall stand s committed unless he attends, and is examined in four days after notice. And this is some- times allowed as a good cause for enlarging publication or putting off the cause. But where publication is absolutely passed, and the depo- sitions are delivered out, if the party moves to enlarge publication, he must suggest by affida- vit that some material witness is not examined, and the reasons why he could not attend and be examined before publication passed. And in this case the plaintiff or defendant (as the case falls out) must make oath, and so must his clerk in court or solicitor, "that they "have neither seen, heard, read, or been in- " formed of any of the contents of the deposi- "tions taken in that cause, nor will they see, "hear, read, or be informed of the same till "publication is duly passed in the c.ause." And upon such afiidavit it is usual for the court to enlarge publication, and give the party an opportunity to examine his witnesses. But 144 FORUM EOMANUM. [Chap. VII. he is to be limited to a time, and so as not to put off the hearing of the cause, for otherwise it would be hard to put the defendant to hear his cause without proof. There was a memorable instance of this kind in my Lord Sommers's time, where an artful solicitor got copies of his client's depositions, and immediately went with them to the adverse attorney or solicitor, showed him the deposi- tions, and, to make sure work of it, read them over to him. His adversary, being ignorant of the rule, told him they must notwithstanding have an opportunity to examine their witnesses ; and soon after bringing his witnesses to the examiner's office, he was told they could not be examined, because publication was passed, and the depositions were copied and delivered out. The man being surprised at this, went to his clerk in court to know what must be done. The clerk told him of the affidavit before cited, at which he was startled, and told him the story. The court, however, enlarged publication, and gave the party an opportunity to examine, and the adverse solicitor very narrowly escaped a commitment for his malpractice. When publication is passed, and the deposi- tions are copied and delivered out, if either party has a mind to examine touching the credit or reputation of any of the witnesses, the way is this : They must file objections or articles (so called) in the examiner's office. These contain in sub- stance the objections they make to the repu- tation of the witness, as in cases of felony, burglary, perjury, forgery, standing in the Chap. VII.] FORUM EOMANUM. 145 pillory, or any other criminal case, that would disable the party from being a good witness at law, (for the rule of evidence is the same in equity as at law.) If the party cannot be a good witness at law, no more can he be in equity. Or these articles may be founded on the party leading a lewd life, or being a com- mon drunkard, or swearer, or of ill repute and character in his neighborhood, a common vag- abond, a man not known, or who hath no abode, or such like, (though these latter objec- tions seldom come to anything ;) for, notwith- standing all this, the man is a legal witness; therefore the court will hear his evidence, and judge of the credibility of it accordingly. These articles being filed, and a certificate from the examiner that they are so, the court, upon application by motion or petition, (or, indeed, it may be done without it,) will give leave to the party to examine witnesses there- on. And the other party, who is to support the credit and reputation of his witness, may exam- ine accordingly * toties quoties, and the deposi- tions must be published, as in other cases. But this is a case which very rarely happens, and, generally speaking, it ends in nothing more than putting the party to an expense to no purpose. When the depositions are thus copied and delivered out, and both parties come to see the interrogatories exhibited by each side, if they find them to be leading or impertinent, then is the proper time to refer them to a master for being too leading, impertinent, or scandal- *As often as he pleases. 10 146 FORUM ROMANUM. [CHAP. VII. ous. This is done by motion or petition of course. If the master reports the interrogatories to he leading, and this report is not excepted to, then all the depositions taken to these inter- rogatories must stand suppressed as of course, by motion or petition. But if the report is ex- cepted to ; as on the one hand the court never countenances leading or impertinent interrog- atories, so on the other hand they are not over curious in these matters ; because it may fall out that the interrogatories may be re- ported leading in the very vitals of the exam- ination, and on the very point on which the cause turns ; and when this comes to be the case, the party who refers them hath gained his end ; for perhaps he had a very bad cause, if the depositions had stood ; whereas, if they are suppressed, he has a very good one, (since his adversary must hear the cause without any proof at all,) unless the court is pleased to grant him another commission, on payment of his costs for his leading interrogatories, which is seldom or ever done after the depositions are published ; and it is hard that in equity a man should be deprived of a plain right through the slip of another man's pen, or the inadvertency or unskillfulness of his counsel's penning his interrogatories ; and therefore, if it is possible for the court to help him, they will, from the manifest inconvenience which must attend such a case. Indeed, if the interroga- tories are reported to be leading in points upon which the jett of the cause does not turn, and if the depositions in those points should be Chap. VII.] fortjm romanum. 147 suppressed, and the party has evidence enough left without them, there is no hurt done ; but if the very life and quintessence turns upon them, he will struggle to the last before he will let his depositions be suppressed, since he might have had the same answer to a fair question as to an unfair one. If the commis- sioners misbehave themselves, or if the com- mission is executed contrary to notice, or not due notice given to the party, or if the deposi- tions returned by commission are so badly en- grossed or so much interlined that they are not legible, in these and many other cases of the like nature there may be good reason to suppress the depositions. But in this last case the record or engrossment of the deposition is always brought into court by the proper offi- cers. The court takes the engrossment into their hands ; and if it is possible to be read, or if it is handed down to the six clerk, and he can read it, they will hardly suppress the deposi- tions, or put the parties to new trouble, or to the expense of examining all the witnesses over again. When the depositions are copied and de- livered out, and signed by the examiner or proper six clerk, (for without this they are not admitted to be read ai the hearing, if either of the six clerks, who constantly attends the court every day of hearing, stands up and says the books are not signed,) the plaintiff pro- ceeds to set down his cause for hearing, either in court or at the rolls, (he having his election where to hear it.) The cause must be set down either by the six clerks, who are generally al- 148 , FORUM ROMANUM. [CHAP. VIII, lowed to set down eight or ten causes apiece, as there are days left for them, (for the six clerks' causes never begin till all. the remainder are over,) oi* the party may set down his cause by petition. CHAPTER VIII. OP THE DECREE. See Exchequer Aftbe publication is passed, they move or pe- tition the court for a day of hearing ; and when the day of hearing is appointed, they take out sabpcena to hear a subpcena to hear judgment, returnable at ie served four- such day of hearing, and this must, in all teen days before , /. the hearing. country causes, be served lourteen days at least before the day of hearing, so that on the act of court which appoints the day of hearing, the subpcBna to hear judgment is supposed to is- sue ; but it may issue any time after the cause is appointed to be set down for hearing, so that there be time enough to serve the party at least fourteen days, in all country causes, before the hearing of the cause. This subpcena is according to the notion of the civil law that no, act of the court may be made "* alterd parte inauditd; and the service is matje fourteen days before the hearing, that the other party may have time to take out the depo- * Without hearing the other side. Chap. VIIL] FORUM ROMANUM. 149 sitions, and prepare his counsel to speak to his proofs. At the day of hearing, if the defendant ap- The proceedings ii 1 • i-jv 1 ■ ■ 1 1 i in ease defendant pears, the plaintm may obtain a decree ; but appears after 7p,, - T--(vi T served with sub- it he does not appear, the plaintiii can only pcena to hear have a conditional decree, which is analogous when he does to the *primum decretum in the civil and canon "° "pp®*'- law. And this is to be pronounced upon affi- davit of service of the subpoena fourteen days before the hearing of the cause, and likewise upon reading a word of the answer, to show there was a flis contestata in the cause; and after such decree pronounced, they must serve the defendant with it, and set it down some time in the next term; and upon affidavit of such service, if the defendant does not appear, the plaintiif will obtain an absolute decree, which is analogous to the § secundum decretum in the canon and civil law. The cause is not regularly to be set down cause not to be the term publication passes, because that is the same°term pubu- T . , T ,11 , • /» cation passes. term wherein they are to take out copies oi the depositions, and prepare on both sides for the hearing. The plaintiff, in the term publication passes, may move or petition for a hearing in the en- suing term, or in the sittings after the term in which publication passes, if the subpoena to hear judgment can be regularly served, and returnable within time. If the plaintiff does not move or petition for a hearing in the first term after publication passes, then the defendant may move or peti- tion, in the term following, to set down the * First decree, f Contesting of the suit, g Second deeree. 150 FORTTM ROMANUM. [Chap. VIII. cause at the defendant's request, because the plaintiff has then delayed the defendant by lapsing the time in which he was to hear the cause : and then, if the plaintiff does not appear upon regular service of the subpoena to hear judgment, upon affidavit of such service, the plaintiff's bill is to be dismissed absolutely, be- cause there are not to be two decrees, since the plaintiff, who is the aggressor, ought always to be ready to maintain the justice of his cause. The plaintiff hath one term after passing publication to consider whether he will pro- ceed to the hearing of his cause or not; and if he fails to set it down to be heard in that time, then the defendant is at liberty to set down the cause to be heard * ad requisitionem defendentis, &c. The cause being thus set down and entered with the register, the party (unless there be an interlocutory order to appear gratis) goes to the register's office, and takes a note of the day his cause is set down ; for this note is carried to the subpoena office, where they make out the subpoena to hear judgment, and the note from the register is their warrant for making out the subpoena. (o) p. 39. It is before observed (a) that only three de- How subpoena is"- ^' •' to be served. teudants cau be put into one subpoena, and there being two labels, they must be first served on each defendant; and the body of the subpoena under seal is to be showed to the party at the time of service, and the body under seal left with the last of the three defendants who is (6) See p. fl. served ; (6) for if the body of the writ should be * At the request of the defendant. Chap. VIII.] FORUM ROMANUM. 151 left with the first defendant who is served, and the two labels with the other two defendants, this is by no means a good service, because the affidavit must be "that the party who was "served with the label was at the same time "showed the body of the subpoena under seal." It is conceived that the labels ought to be a labei ought to left with the party himself, and that the leav- party himself. ing thereof with his wife or servant has been often doubted whether it be good service' or not. It is agreed such service is not good; but the body of the subpoena may be either served upon the defendant, or left with his wife or one of his servants, at his house or last usual place of abode ; and it was never doubted but this was good service. It seems to be a question touching how in town causes 1 , , • . 1 1 ^ 1 J • , 1 1 'he defendant many days notice the deiendant is to, have to' must have ten T ., ,i,ji • 1 • • • days' notice be- hear judgment, but the received opinion is fore the hearing. that in all town causes there must be ten days' notice from the day of the service to the day of hearing judgment, and fourteen days' notice Fourteen in - . country causes. in all country causes, unless where the cause is set down between Easter and Trinity term, which being an extreme short vacation, it has been thought that thirteen days' notice is suffi- cient to hear judgment in a country cause. When the cause comes into the paper, and is a noWeman's 11 T . ., /» .p rt ,1 T cause is not to be called in its course ; tor it a peer oi the realm heard out of its comes upon the bench, though it is usual (after consent of aii , ,, . , . . . 11 1 parties. the cause then in hearing is over) to call the nobleman's cause, yet if it stands low, and the adverse counsel say they are not ready, but will be so when the cause is called in its course ; in this case the court never forces them to go 152 FORUM ROMANUM. [Chap. VIII. on unless both sides desire it ; but the noble- man must stay till his cause is called and comes on in course. How to proceed if The bill being opened, if the defendant does the defendant , . , i. ii does not appear not appear to Open his answer, the court calls at the hearing. ,,,.,. «., . i raji on the plamtiii to prove service ; and an atnaa- vit, which must be filed, being read of the ser- vice of the subpoena to hear judgment under the restriction .above mentioned, and it appearing to the court that the defendant is regularly served to hear judgment, the plaintiff's counsel prays to have a word of the defendant's answer, and it is no further read than thus, viz : "The " answer ofA.B., defendant, to the bill of com- " plaint of C. D., complainant: The said de- " fendant, saving and reserving to himself now " and at all times hereafter all and all man- ■ " ner of benefit and advantage of exception," &c. But the plaintiff's solicitor must take care An answer must to have the answer signed by the six clerk, cferif before it^''' which, if he fails in, and the six clerk, in open court, insists it ought not to be read, being not signed, it cannot be read, and the plaintiff's solicitor must take it for his pains in neglecting to get the pleadings signed as he ought. The plaintiff's counsel pray what decree they please for their client *nisi causd, and they generally pray a right decree, or otherwise they will hear of it again. This decree being drawn up, passed, and en- tered with the register, the plaintiff sues out a subpoena against the defendant to show cause against the decree, and serves him therewith, (as other subpoenas.) But this writ to show *UnleBS cause. Chap. VIII.] FORUM ROMANUM. 153 cause against a decree being a iudicial process, a judicial process ° . 1 ""US' be returna- it must and always is made returnable in term we in term or at . , a certain day. time, and at a day certain. If it sbould be made returnable out of term, or at any of the seals, as was once done, it will be set aside for being irregular. The words of the subpoena are * ad -■ ostendendum causam secundum ordinem curiae gerentem datum tali die et anno, &c. There is no prefixed time for the service of No prefixed time , . , , , , on a subpcena to this subpcena, nor how many days notice the siiowcausewhya '^ . 1 decree should defendant is to have between the service and not bo absolute, the day to show cause. It were to be wished it might be as in the case of subpoenas to hear judgment; though^ indeed, where the decree is made at any of the days of causes within the seals after term, there the party has timely notice to show cause ; but where the decree is pronounced in term time, the party (if the sub- poena is made returnable the same term, as may be) has but a very few days left to show cause against the decree, and is sometimes straitened in time to do it. If the defendant submits to the decree f nisi, then, upon affidavit of the service of the sub- poena to show cause, and upon a certificate from the register that no cause is shown, the plaintiff's counsel move to make the last order absolute on affidavit and certificate, which is a motion of course. But if the defendant intends to show cause, if a defendant , , . . ™, , ,, shows cause why he must first pay unto the plaintiff the costs otthedeoreeshouki /■ ■*■ not pass against that day's default in not appearing. The words him. ''^ '"'y'[P'''y of the decree are always thus, viz: "And this day to be taxed J ^ by the master. * To show cause according to order of court, bearing date Buoh a day and year, &c. f Unless. 154 FORTJM EOMANUM. [Chap. VIII. "decree is to be binding upon the defendant, " unless he, being served with a subpoena for "that purpose, shall at the return thereof show "unto this court good cause to the contrary." But before he is admitted to show such cause, he is to pay unto the plaintiff his or her costs, (as the case is,) to be taxed by a master, for this day's default in appearance. These costs being paid, and a receipt for them produced, the defendant petitions to restore the cause again into the paper, which is always granted. But if a cause is called, and the de- fendant's counsel is ready, and appears, and nobody appears for the plaintiff, the court always calls upon the defendant to prove ser- vice; and if he cannot do that, he cannot pray to have the bill dismissed. All the court can do in this case is only to strike the cause out of the paper. But if the defendant proves ser- vice, the bill must be dismissed with costs. This service must be upon the oath of the party, viz: "That he was, on or about such a "day, served with a subpoena to hear judgment, "at the plaintiff's suit." Or any other person with whom the subpoena was left may make affidavit, and it must be filed before it can be read. The reason of this is, because a plaintiff may set down his cause, and yet, upon further consideration of the matter, he may not think fit to serve the defendant with a subpoena to hear judgment. In this case the defendant must hear the cause *ad requisitionem de- fendentis, if he will have the bill dismissed with costs ; though sometimes the defendant is * At the defendant's request. Chap. VIII.] FOEUM EOMANUM. 155 caught there too, and a decree made against him. If the defendant ohjecta for want of parties, objection for , , . , . . want of parties (as he may,) unless restrained by some inter- must bo miide ^ 11,1 before ttie cause locutory order, whereby he is to take no ad- 's gone into upon " ' '' the merits. vantage for want of parties, this is always to he done when the pleadings are opened, and before (.he cause is gone into upon the merits. If it appears to the court that a very neces- wiieretiiepiaint- r . , . , , , . , , , . iff's bill will be sarj'' party is wanting, that without him no diamiased with costs for want of regular decre(; can be made ; as where a man proper parties at the hearing. seeks for an account of the profits or sale of a real estate, and it appears upon the pleadings that the defendant is only a tenant for life, and consequently the tenant in tail cannot be bound by the decree ; and where one legatee brings a bill against an executor, and there are many other legatees, (none of which will he bound either by the decree or by the ac- count to be taken of the testator's assets,) and each of these legatees may draw the ac- count in question over again at their leisure ; or where several persons are entitled as next of kin under the statute of distributions, and only one of them is brought on to an hearing ; or where a man is entitled to the surplus of an estate, under a will after payment of debts, and is not brought on ; or where the real estate is to be sold under a will, and the heir-at-law is not brought on ; in these and all other cases, where the decree cannot be made uni- form ; for, as on the one hand, the court will do the plaintiff right ; so, on the other hand, they will take care that the defendant is not 156 FOKUM ROMANUM. [Chap. VIII. doubly vexed. He shall not be left under pre- carious circumstances, because of the plaintiif, who might have made all proper parties at first, and whose fault it was that it was_ not so done. And therefore, in all these cases, it is conceived that the ancient rule of dismissing the bill with costs, for want of absolute and necessary parties, is the surest way to go by. Where the cause But to this it will be oblected that the late will be adjourned "" over. practice hath been to let the cause stand ad- journed over on payment of the costs of the day, and to direct the plaintiff to amend his bill, and make proper parties. And in many cases this is a very just rule and determina- tion ; as where the party wanting to be brought on is purely a party *pro/orma, as in the case of a trustee or an executor, against whom there needs no further examination of wit- nesses. Nay, the court often directs to supply the want of parties, in case of an administra- tion frfe bonis non, &c., that upon the plaint- iff's producing such administration, or any other administration, or probate of a will be- fore the master, the account shall go on. But where the party which is wanting be- comes a substantial and necessary party, and where he may controvert the plaintiff's very right to the demand in question, and where he may deny it by his answer, and put the plaintiff • and the other defendants who have answered to undergo a fresh" examination of witnesses ; for nobody will say that the examination taken before the coming in of t\^s new defendant's answer shall either blind or affect his particu- * Out of form, f Of goods unadministered. Chap. VIII.] FORUM ROMANUM. 157 lar case ; and where the plaintiff must reply to this new defendant's answer, and where both parties must examine all over again, and where the cause must also be set down * de novo as against this new defendant ; it is not conceived of what effect it can be to the plaintiff to have his cause stand over, or where he is to find his account in the event of such a proceeding. And it seems in this case to be more just that the bill ought to stand dismissed with costs, and that the defendants who are unnecessarily broughtjDu should at least have their costs for this vexation ; and that the plaintiff ought to be at liberty to bring a new bill, and make ■ proper parties, as he shall be advised. But all this is in the breast of the court, to do as they please. If any one of the defendants appears to be Eq. Abr. 28o,pi.i, '. „ , , . . , . , . in the notes. an iniant, and anything is prayed against him by the decree, he must in all cases have a day given him to show cause : the words of which decree are thus, viz: "And this decree is to be An infant has six "binding to the said A. B., the infant, unless comes of age to " he shall, in six months after he shall attain mnde during iiis . minority, "his age of twenty-one years, (being served " with process for that purpose,) show unto this " court good cause to the contrary." This process is by way of subpoena, to be served on the defendant at his coming of age; and it is a judicial writ, and must be return^ able in term time. If he shows no cause, the decree is made absolute upon him. But when he comes of age, and shows cause within the six months, even here it is said that * Again. 158 FORtIM ROMANUM. [Chap. VIII. of late it hath been doubted whether the infant shall put in a new answer or not, and make a May make a new uew defense. If he is not admitted to do this, to what end was there a day given him to show cause? And heretofore it was never doubted but that an infant, when he came of age, might, upon motion and with leave of the court, put And put in a new iu a uew auswer and make a new defense, if his guardian had not made a proper defense for him, or mistaken his case. And this seems to be grounded upon the highest reason. For tak- ing it for granted (which nobody ever yet de- nied) that nothing can bind an infant, unless the act to be done plainly appears to the court to be for his benefit ; and there it shall, and is supported by a multitude of precedents ; why, then, shall he not, by the indulgence of the court, put in a new answer, especially when it appears to the court that the defense made dur- ing his infancy was totally wrong? Or if he is to be bound by his former defense or by his former answer, to what end had he a day to show cause ? For if that defense is only to be gone upon, as the decree was just, then so it will be now ; but if he is to make a new defense or a new case, it may vary from his former ; and in that case the decree upon this new defense may appear to be very unjust, and may be re- versed. And so may a ' As in the casc of a feme covert, where a bill is brought against her and her husband during coverture^ and where he claims merely in her right, and then dies, and the right survives to the wife, it was never here said but the wife shall file a new answer and make a new de- Chap. "VIII.J FORUM ROMANUM. 159 fense, and draw into question and examination the validity of the decree obtained against her during coverture, and avoid and reverse it, if there is just cause for it. It seems the question which was lately made about a new defense to be made by an iniant is resolved that he may do so, and hath (as we hear) been lately so re- wims's Rep. sot solved at the rolls. If the plaintiff, when his cause is called on, if piaintifr ia not is not ready, it shall be struck out of the paper, cause is aawed and he must apply by petition to have it set stra'ok out of the down again, but with this difference : that as he hath once had his turn, and might have been ready if he had thought fit, so he shall be post- poned till after all the causes which are then set down are heard ; and his cause must be set down after all those which are then appointed and set down, and then he will have a second turn for the hearing of his cause. The decree being thus pronounced, the plaint- how the register iff carries his brief to the sitting register of the ore"^ "^ day, (for each register takes his turn alterna- tively,) and bespeaks the decree to be drawn up ; and the defendant may bespeak a copy, and mark the register's book for a copy, (if he thinks fit.) Each party draws up the decree as he finds it most in his client's favor. And when the de- cree is drawn up, and the copy returned to the register, (if there is any difference about it,) the register appoints a day to hear both parties upon it, before it is passed ; or if either party refuses to return his copy, the register sends him a note to. return it by such a day or he will pass it without him ; and this is the method 160 FORUM EOMANUM. [Chap. VIII. of the register's passing their decrees in court or at the rolls. If the minutes taken at the hearing are doubt- ful, or if either party thinks himself really ag- grieved by the decree as it is then going to be passed ; or if he conceives the minutes are wrong taken, or contrary to the plain sense and meaning of the court when the decree was pronounced ; or if the register takes upon him- self to pass the decree contrary to his minutes, (as rarely or ever happens ;) or if there is a ma- terial or essential difference between the two registers' minutes, before passing of the decree, (for, if it is passed, they must rehear the cause,) What deposit to and upou depositing five marks with the regis- be made on re- '■ hearing. ter, as a stake to answer costs to the other party, the court orders the register, with his minutes, to attend, and upon this petition the court alters the decree drawn up as they think fit, and di- rects the register to pass it accordingly. When the decree is passed by the register, it is carried to the entering book in the same office, and there entered. And all decrees and other orders made in Michaelmas and Hilary terms are to be entered before the first day of Michaelmas term after, and all of Easter and Trinity to be entered before the first of Easter following, or else the party must obtain an order to enter them *nunc pro tunc. And this is always upon notice to prevent any sur- prise. If either party intends to rehear the cause, they must take care to enter a caveat with the secretary of the decrees and injunctions. And * Now for then. Chap. VIII.] FORUM ROMANUM. 161 when the decree comes to he enrolled, he must summon the party upon his caveat, and give him notice of the decree heing come to his "hands; and the party hath thirty days from The party hath 1 , . . . in T • J, thirty days after such notice given to apply tor a rehearing oi notice of decree the cause, which, if he fails in, the decree will heariiig. °' be signed and enrolled, and then he hath no other remedy but by bill of review and reversal, which are hereafter stated. As decrees are of very various natures, and depend upon the circumstances of the case^ so there is no room left in this treatise to bring them to any certainty, but barely to hint at some of the proceedings consequent thereto. As where one man brings a bill against another, and where he is under no impediment of pro- ceeding at law ; yet even in this case the court as in the case oi many times retains the bill for twelve months, stretch, in canc, and directs an issue, and reserves the consider- ation of the matter till after the trial, and will then decree according to the verdict. And though, in all issues directed by the court where an order „ , . , 1 . 1 j< 1 "'^y he obtained or chancery, either party may apply tor leave, for a new trial. and obtaiji an order for a new trial, yet this seldom comes to anything, unless the judge before whom the cause was tried certifies his dissatisfaction of the verdict, or that it is fit to undergo another trial. There the party shall have another trial, upon payment of the costs of the former trial. But still it is taken as a fundamental rule of ruIo in equity equity that the inheritance of an heir at law not be bound '* shall not be bound down by one single trial, sin^etriaf.^ He may have another trial for asking for. But if the second verdict goes against him, he will 11 162 FORUM EOMANUM. [Chap. VIII. not be entitled to a third trial for asking for. And where verdicts have gone several ways, it has always been the wisdom and policy of the court to decree according to the majority of ' those verdicts, or else there would never be an end of the matter in question ; and perhaps it may be better to deny another trial than to have the parties in eternal dispute. Account. If an account is directed to be taken before a master, and the defendant decreed to pay the balance, in that case the plaintiff brings in his charge before the master in writing, and the Where the par- defendant takes a copy thereof, and brings in dered to attend his discharge, and the parties attend thereon ; de die in diem, ._ „ t i i • t i -n the master to and II an aflected delay is used, the court will speed his report . i ^ t t ' t after a decree, order the parties to attend *ae die m diem,, or direct the master to speed his report, or make it up by a limited time. If the defendant is to produce deeds or writ- ings, or to attend and be examined on inter- rogatories, the ancient rule used to be to serve him with a copy of the writ of execution of the decree, and show it him under seal, and at the same time to serve him with a warrant from the master, and give him a reasonable time to produce them ; as where a man lived in Northumberland or Cumberland, he must have a longer time to produce his deeds than where a man lived in or near the town. And by the ancient rule, no writ of execution was ever al- lowed to be made out till after the decree was signed and enrolled. As this rule was anciently pursued, so it seems to be well grounded ; because the party * From day to day. Chap. VIII.] FORUM ROMANUM. 163 had fair notice to produce his deeds, and an opportunity of showing to the court his reason for not doing thereof; whereas nothing is now more common than to take out two warrants from the master, which are served on the party's clerk in court, and on not producing the deeds, and the master certifying his default, a motion is presently made to produce them in four days, or stand committed ; and this order is served on the party's clerk in court. And how it is possible for a man to produce them in four days who lives one hundred miles off is not easily to be accounted for. It is therefore conceived, that upon all these motions, for a man to stand committed in foUr days for not attending to be examined, or not producing deeds according to the decree, the question (though this seems to be a motion of course) ought to be asked,, whether the party has been served with a writ of execution of the decree, and with a summons from the master (served on the party) to produce them. If he hath, upon a certificate from the master of their not being produced^ or of his failure to attend and be examined, the party is left inexcusable, and in that case ought to stand committed. And as all commitments rdust be grounded upon some offense or other, so it hath been al- ways taken that the offense committed is by not paying obedience to the greal seal; and the party may, in this case, proceed (if he pleases) by way of attachment. But why a man ' s liberty should be taken away because the master upon two summonses certified this default is not very easy to be accounted for, notwithstanding 164 FORUM KOMANUM. [Chap. VIII. this is a practice now used ; and it is a very old but true saying, that no offense can be com- mitted but where the great seal is shewed the party. Indeed, this is not so in extrajudicial matters, as in cases of bankrupts and idiots, be- cause they are never put under seal ; and the offense in that case is for not yielding obedience to the order signed by the lord chancellor, lord keeper, or lords commissioners, when showed to the party against whom it is made. When both parties have been fully heard upon the account, the master prepares a draft of his report, and thereof gives notice by a summons for that purpose for either party to come and take a copy therof. And after this there are four days' time allowed to bring in objections to the draft of the report, and they must be in writing, and the parties are heard thereon, (if desired.;) and if no objections are brought in, the master proceeds to sign his re- port at the return of his second summons. The ancient rule was that the party should never except but where he had first objected to the draft of the report before the master; and where there was no objection brought in, it was allowed as good cause to discharge the exception. And it were to be wished that this good rule was strictly followed, since, if the party had objected, he might have shown the master his error^ and the report would have been altered in that particular, and never troubled the court; whereas it often happens that the party will conceal some material objection, and keep it in * petto from the master. And when * His own breast. Chap. VIII.] FORUM ROM ANUM. 165 this comes on by way of exception, it makes a variance in the report ; and so it might have done, if it had been fairly disclosed and laid before the master. Nor hath the other party any previous notice upon what ground such an exception goes, or upon what foundation it stands. And it, is but too often said' that par- ticular matter was never stood upon or insisted on before the master, and that it is a new mat- ter, which the party never heard of before. As this way of practicing but too often surprises the party, so it generally ends in being sent back to the master to review his report, and hear the parties thereon ; whereas, if the old rule was kept up, viz: that neither party should except but where they had objected before the master; and if this was allowed as a good cause, (as certainly it ought to be,) either by motion or coming on of the exceptions, to dis- charge them, it would very much tend to the ease of the court, and prevent abundance of trifling exceptions. The report, when signed by the master, is taken away and carried to the report office, and there filed, (this is an office belonging to the register's office, and either party moves in open court: it cannot be done by petition,) to confirm the report *nisi causa. This is always done upon eight days' personal notice to the party. If he shows no cause, then, upon an affidavit of the personal service of the party, and a certificate from the register that no cause is shown, the last order is made absolute of course. * Unless cause. 166 FORUM ROMANUM. [Chap. VIII. Counsel must But if the party intends to show -cause, his prepare and sign , . _ . , , , . exceptions: counsel must prepare and sign his exceptions. He may have time, upon petition or by motion, to file his exceptions beyond the eight days, as where the account hath long depended be- fore the master, or where the exceptions are very numerous, and there is not time to file them in the eight days, or the like. Five pounds de- Thcse exceptions are carried to the register, posited thereon, ^^ -, -, • , i j_ij. and no more ai- and fivc pouuds dcpositcd as a staKc to answer lowed on arguing -r^ i ^ i • them. costs. If the adverse party 18 put to twenty or thirty pounds expense, upon arguing these ex- ceptions, he hath no more than the five pounds deposited, which is ever held (though often complained of) as a recompense for that trou- ble ; and the master never allows more than the five pounds, in respect of that proceeding, when the costs come to be taxed. It is so in a rehearing of any cause : if one, ten pounds is to be deposited ; if a cross cause^ twenty pounds is the deposit ; and this is a recompense for that rehearing. The exceptions being thus filed, and the five pounds deposited, it is a motion of course to stay proceedings on the report, on exceptions filed. Either party may bring on the excep- tions by petition, but never by motion. If the exceptions are numerous, (as but too often happens,) there being sometimes twenty or thirty or forty exceptions to a report, which take up two or three days' hearing ; and where the exceptions appear very frivolous, (as also too often happens,) the exceptant must pay, * ulira the five pounds deposited, ten shillings Chap. VIII.] FORUM ROMANUM. 167 for every exception and branch of an exception which is overruled. But if the exceptant waives any of his exceptions, it doth not fall within this rule, because in that case the court hath no trouble where the exception is waived. And there is a clause always added to the order made on arguing the exceptions, that with these di- rections (that is, the directions given on argu- ing the exceptions) the report shall stand con- firmed ; and no man can except to the same matter twice over, (nor can he add to or alter his exceptions after filed,) but by special leave of the court for that purpose. If a duty is decreed, and the court leaves it to if a duty is de- .1 , , * . , • T 1 n creed, how t-he tlie master to appoint time and place for pay- master wiii order ment, it is usually appointed to be paid at the chapel of the rolls, between ten and twelve ; but where the master is not directed to appoint time and place, he always directs payment to be made to the plaintiff generally, pursuant to the order on theiiearing. The report being thus confirmed, with or Eeportbeingoon- withdlit exceptions, and the duty fixed and tnakes'outawru established, the party proceeds to make out a the decree and writ of execution of the decree, and* of the re- port order to confirm *nisi, and the order to make it absolute. All these are contained in the writ of execution, and are put under seal, (a true copy being made thereof.) The party is personally served therewith, unless he absconds, and then, upon affidavit made thereof, the court will order that service of his clerk in court shall be good service of the party, and the seal must be showed to the clerk in court at the time of * Unless. 168 FORUM EOMANUM. [Chap. VIII. service. And, as is before observed, tbere can be Nowritofexeou- no Writ of cxccution till tbe decree is enrolled, cree is enrolled. The duty is demanded of the party by a letter of attorney, under the hand and seal of the plaint- iff, empowering the person who serves the writ of execution to demand and receive it. But if the duty is made payable at the rolls chapel, the party or his attorney who is ap- pointed to receive it must wait there from ten to twelve, and if nobody comes, or the duty is not paid, being demanded, upon affidavit of service of the writ of execution under seal, and a demand made of the duty, and a refusal of payment, the clerk in court, by the ancient rule, always made out an attachment for breach of the decree, (the proceedings whereon are herein- before stated.) But the late practice hath been to move for a commitment. And if the old rule of the court is to be altered in any case, it seems reasonable in this, viz : to shorten the process of the court in case of a breach of a decree ; for if the whole process of the court is in this case to be run over again from attachment to the sequestration, it may be near twelve months before it fcan be regularly done ; and if the. party runs away in the meantime, the suitor (after being kept out of his debt many years) may by this delay lose his demand. Yet even here all practicers doubt whether this way of proceeding by commitment answers the chief end of its late institution. However, this is discretionary in the court to do it or not as they please. Chap. IX.] FORUM ROMANUM. 169 CHAPTER IX. OF THE BILL OF REVIVOR. If the party died pending the suit, by the civil and canon law they had a *citatio ad reassumendam causam. But then it must ap- pear to the judge by the proof that the party was dead; for it was not enough for the judge to know it in his private capacity, but it was necessary that it should be proved judicially to him. But this process lay only against the heir of the defendant, and for the heir of the plaintiff, and so from heir to heir, fiosque ad conclusionem in causd, and even, after sentence, to have execution of the sentence pronounced. Anal6gous to this in the court of chancery who is entitled to is the bill of revivor ; and the subpcena ^ad re- see Pract. Rog. in , . , , . . . , Chan. 44, 40. . vivendum is the same as the '^citaiio ad reas- sumendam causam. And this subpcena is only for the heir, executor, or administrator, who came in in privity, as they call it; that is, in immediate representation to the party litigant deceased ; for a devisee or assignee of any plaintiff cannot have subpoena ^ad revivendum after the decease of such plaintiff; and this is for two reasons : First, because they looked upon a suit to be a \\cJiose in action which was not assignable over for fear of maintenance. But this reason has been long since obsolete in the court of ♦Citation to reassume the cause. f Even to the conclusion of the cause. J To revive. || Thing. 170 FOKUM ROMANUM. [Chap. IX. Ch. Cas. 123, 174. Eq. Abr. 2, p. 1. No answer neces- sary to a bill of revivor. Plaintiff must pursue the orig- inal bill; other- wise good cause of demurrer. chancery, where they allow the assignment of such interest. But the second and better reason is, because, where the party devises or assigns his interest and dies, if the devisee or assignee were to bring his bill of revivor against the defendant, the heir or executor would be pretermitted who might have a right to contest such disposition, and therefore he must bring his original bill, and make the heir or executor a party. There is no answer absolutely necessary to a bill of revivor, for the cause will stand revived without any answer, because the subpoena brings the representative into court, and being there, upon motion after the return of the writ, the cause shall stand revived against him. For when the heir does not show anything to the contrary, the appearance of the ancestor by the attorney continues to him as if there had been no demise. But the defendant may, for his benefit, put in any plea or answer, and show that he is not heir, or has not the like interest, or that there is not the same cause of complaint against him. The bill of revivor must pursue the original bill, because, otherwise, it is not a revivor of the same suit. And if there be a variance be- tween that and the original bill in any mate- rial point, the defendant may demur, and upon such demurrer the bill of revivor shall be dis- missed. But if anything happens by the abatement that makes it necessary to add a new charge, that may be inserted in the bill of revivor, as the plaintifl' may pray a discovery of assets in the hands of the heir or executor, Chap. IX.] FORUM ROMANUM. 171 and the defendant shall be obliged to answer thereunto. A cause cannot be revived in part ; but the cause cannot be whole proceedings, bill, answers, and orders made in the cause, must stand revived ; for the revivor is but a continuance of the same suit, and it cannot be a continuation of the same unless it proceeded where the other left off. Proceedings in cross causes are not revived How to revive in ,.,-„.. , cross causes. Without a bill 01 revivor m each, because each plaintiff is master of his own cause ; and, there- fore, if the plaintiff revive against the heir of the defendant, that does not make it necessary that the heir of the defendant should revive the cross cause against the plaintiff, unless he pleases. If a */eme sole answers, and afterwards mar- Need not revive , , 1 ■ 1 1 1 . against a feme ries rpenaente lite, this does not put the plain- sole who marries ^ , . after having an- tiff under a necessity to revive the proceedings, swered. because she, by her own act, cannot alter the condition of the plaintiff's suit. But by leave Pract. Keg.in 1111 1 Chan. 1. of the court the husband may be made a party. And if in such case the plaintiff brings a bill of revivor, it shall dismissed with costs, because Note: Nosuitcan , • 1 J 1 i 1 J 1 '^6 revived that no suit can be revived that was never abated, wasneverabated. But if a *feme plaintiff marries, here, by her praot. Reg.in own act, she abates her suit, because she has no power to continue any judicial proceedings ; for by the marriage it is transferred to the hus- band, and therefore the husband must exhibit Husband of feme his bill of revivor to recontinue the suit. But vive. in the former case the husband took her with the suit attached to her. If a bill be exhibited against %haron and ♦Woman. f Pending the suit. ? Husband. 172 rORUM ROMANUM. [Chap. IX. In a suit against ^ feme, and the husband dies, the suit is abated, ifbMoTdiesr^' and a bill of revivor must be exhibited against , Vive? ' ""^ '^ the wife, because she is not obliged to abide by the answer which was put in under the power of her husband. When feme But if a man and his wife be plaintiffs, and Ee^r election to '" the defendant answers, and the husband dies, Tnewbin.^^ ' ' the wifc has it in her election whether she will exhibit a new bill or proceed on the old one by revivor ; for she may change her cause of com- plaint or not, at her election, because the for- mer suit was commenced when she was under the direction of her husband. Where ^haron and ^feme are plaintiffs touch- ing a promise made to them to make them leases for their lives, there, if the wife dies, the hus- band need not revive, because he claims in his own right, and not in the right of his wife. If a %feme sole exhibits her bill, and marries, and the defendant answers, and after would take advantage of the plaintiff's proceedings without revivor, the defendant shall be examined upon interrogatories whether, before his answer, he knew of the plaintiff's marriage ; and if so, then the plaintiff shall proceed without revivor ; for there is no need to subpoena the defendant to appear where, after knowledge of the abate- ment, he appears and answers || gratis without it ; and he waives the benefit of the subpoena by the answer. Rule. It is an universal rule that, wherever a'death happens, and yet the right survives, and the cause is in the same plight and condition after the demise as it was before, there is no need of *Wife. t Husband. § Woman. || Gratuitously. Chap. IX.] FOBUM ROMANUM. 173 the revivor, because no other person is to be sent for, nor any other person to be made party to the complaint. » But where the right does not survive, or there is any alteration by the death of any of the parties, there you cannot go on without re- vivor, because there will not be proper parties unless all parties in interest be before the court. And if there be an alteration by death, all par- ties in interest cannot be before the court unless the representatives of the deceased be brought into court. If an executor * durante minore cetate exhib- its a bill, and the infant comes of age, there needs no bill of revivor, because it is a contin- uation of the same representation. If there be several plaintiffs, and the defend- Praot.Reg.in „ , 1 • , Chan. 45; 2 Ch. ant dies, some of thera may proceed without caa. so. the rest to revive, because 'the obstinacy of some of the parties shall not hinder the rest from asserting their interest. But it seems proper to make such former plaintiffs defendants, that they may be concluded in interest for not join- ing. If a plea of outlawry stands allowed, whereby the suit is put off fsine die, and afterwards the outlawry is reversed, the plaintiff must bring his bill of revivor, because that suit being abated, the defendant has no day in court, and therefore must be brought into court by a new subpoena. After a decree is signed and enrolled, if the defendant dies, they may have a subpoena ^scire ♦During the nonage of an infant. f Without day. i To show cause. 174 FORUM ROMAN DM. [CHAP. IX. facias, which will revive it against the heir or executor of the defendant. This was formed from the * scire facias at (fommon law ; for when the decree is enrolled, it is in nature of a judg- ment ; and a subpoena * scire facias is, that the heir or executor may show cause why there should not be execution, ch. cas. 60; 2 There can be no demurrer put in to the sub- Fi-eem.l80;Danv. ^ • j} • j? j.i i i. • ^i. ^i 779, p. 1; Eq.Ahr. pcBua * scirc facias, tor that subpoena is not ot Rep." 234; 3 Chan! record, uor anywhere filed, and therefore the defendant must upon motion show cause at the return of such writ why he should not be charged. As they have a subpoena * scire facias after enrollment, so they may have a bill of revivor ; for the * scire facias is formed according to the notion of the common law, and the bill of re- , vivor upon the canon and civil law ; and there- fore, in a court of equity, the plaintiif has his election of either of the remedies. PraetReg. in If a siuglc woman brings a bill, and marries 1, p!"', in ti?e ' pending the suit, it is abated, and she and her husband must revive, and serve a subpoena fad revivendum; and the time for answering being out, it is a motion of course to revive the pro- ceedings, ibia. But this is not so where a bill is brought against a single woman ; for, if she marries, the suit is not abated : it goes on against her and her husband without any revivor. Ibid. If a plaintiff dies pending a suit, it is abated, and his executor or administrator must revive the cause before he can proceed therein. And all these orders for the revival of proceedings * To show cause, f To revive. Chap. IX.] FOKUM EOMANUM. 175 must be served on the adverse clerk in court, to the end he may take notice the suit is revived, and that such revivor is right ; and no motion can regularly be made till the order for reviv- ing the proceedings is served. So, if a defendant dies, the suit is abated. Pract. Reg. in And if it is a personal demand against him, i, p."', in ti?e the bill must be to revive and answer, and the subpoena is *ad revivendum et respondendum; and this bill prays either an admission or dis- covery of assets from the legal representative of the dead party. It is generally held that, if the executor or administrator of the dead defendant admits assets sufficient in his hands to answer the de- mand in question, this is good. But in some cases the court will not allow it to be so, though this rarely happens. Indeed, if the heir or ex- ecutor sets forth the yearly value of the real estate subjected to debts, this is good, because the real estate cannot run away. But after an admission of personal assets, it may be in the power of the party either to waste or run away with them, for in this case nothing but the person of the party is at stake. And there may be cases where two executors are appointed: one refuses to act, and the other, who is insolv- ent, possesses the whole assets. And therefore, when any of these cases appear to the court, or where the party who possesses the assets is in The court win dubious circumstances, it is no new thing for torsf&o.,to^se™' the court to oblige him to set forth the very i"speoil,1Fth(-y assets * in specie, to the end the plaintiff may pursue and follow them, and know where they * To revive and answer. f Specifically. 176 FORUM ROMANUM. [Chap. IX. are, and how to come at them. But this rarely happens, and is only done in extraordinary cases. But where strangers, or even debtors to the estate, are made parties to the bill of revivor, and a discovery of assets sought thereby, as against them, they shall never discover them to any one but to the executor or administra- tor of the party, who alone can recover them, especially where the executor or administrator, by his answer, hath admitted assets ; for a stranger, where there is no privity of estate between him and the testator, shall never sue strangers who are no ways accountable to him. Indeed^ if the executor or administrator ap- pears plainly to the court to be insolvent, cases may be found out where the court will lay their hands on the assets. But this scarce ever happens; nor can the court, strictly speaking, oblige any executor to give security to answer the debt. It was the testator that made him his executor, and appointed him to stand in his place ; and if he wastes or runs away with the assets, there is no helping it. If an executor or administrator, upon a bill of revivor, does by his answer admit assets, and the plaintiff, upon coming in of the answer, revives his suit, and proceeds in the original cause upon the revivor, he shall never after- wards refer the answer for insufficiency; for this he ought to have done at first, and before he proceeded to revive the original cause, his doing whereof is an admission that the answer was full and perfect, or otherwise he might have excepted thereto, and had the opinion of Chap. IX.] FORUM ROMANUM. 177 the court thereon ; but then he could not have proceeded to revive till he had got over that point. If a decree obtained against the ancestor is sought to be carried into execution, there are two ways of doing it. If the decree is enrolled, the party may sue out a subpoena against the a subpoena scire ,., . ,, ° , , . facias is only heir to show cause against the decree ; but this after enrollment, , and not before. IS only alter an enrollment, and not before ; and the party must, at the return of the subpoena, show cause, if he hath any, against the decree. Or the plaintiff may bring his bill of revivor to carry the decree into execution. And this is the surest and safest way; for where the de- cree was obtained against the ancestor, and his heir does not claim under that title, but by virtue of another title paramount, there the decree can never be carried into execution against him ; as where an estate is decreed against a man, and his heir insists his father had no title thereto, or was only tenant for life thereof, the decree in that case can never be carried into execution against him. He is at liberty to controvert the justice and validity of that decree. He may make a new defense from what his ancestor did, and vary his case , as he shall be advised ; and the parties go into a new examination of the matter, and hear the cause *de novo; and the court judges whether the decree is right or not, and may affirm or reverse it at their pleasure. But where one man obtains a decree against another for a real estate, and the party dies be- fore the plaintiff is put into possession, in that * Again. 12 178 FORUM ROMANUM. ' [Chap. IX. case, if the heir at law claims the estate by de- scent under his ancestor, or as devisee under him, he shall never controvert the justice of the decree, though his ancestor should have mistaken his defense ; nor shall he be at liberty to make a new defense, or enter into new proof, so as to overthrow the former decree, especially where it appears to the court that the decree hath been of an ancient standing. No bill of revivor can be brought where it relates to costs only, unless the costs are taxed, and a report made in the lifetime of the party ; for this is "^ actio personalis et moritur cum per- sona. Bacon. But if, by the decree, the party is to pay a sum of money, or if a duty is decreed ; if he is to deliver over a bond, or deeds or writ- ings; or if anything is annexed to the decree besides costs, the suit may be revived, but it can never be revived for costs only. A bill to discover So if a bill is brought by an heir at law, or a deed against a ■, ,-i mortgagee or by any Other person, against a mortgagee or by tiie pYaintiff iointress, wherebv the party would avoid the would defeat "i . ' •' ■, their title, shall lointure or mortgage, under pretense his ances- never have a dis- "^ a c? ^ x coveiy, unless tor was Only tenant for life ; and if he seeks for the plaintiff will _ •' ^ ' confirm the title, a discovery of deeds and writings, to avoid the title of the mortgagee or jointress, he shall never have such a discovery, unless he, by his bill, submits to confirm the title, and then he shall. And so if a jointress prays a discovery against an heir at law of deeds and writings, if the heir submits by answer to confirm the jointress's title, she shall have no such discovery. So if a man makes his will, and afterwards * A personal action, and dies with the person. Chap. X.] FOEtJM ROMANtTM. 179 mortgages his estate, it is but a revocation Devise of lands, ^ .. Till- iTiT -1 andtestatorafter- ^pro tamo, and the devisee shall redeem, and wards mortgages, , .!• 1 11- T it is a revocation the estate go to him, and not to the heir at law. pro tanto only. CHAPTER X OF THE BILL OF EEVIEW, AND OF THE APPEAL. The sentence by the canon and civil law was Maranth, sea. twofold: interlocutory and definitive. The interlocutory was any orders pronounced by the judge in the cause touching the proceed- ings, before they came to a definitive sentence, and the interlocutory order is always alterable ibid, 362, n. 7; 364, before the definitive sentence. The definitive sentence must always be in writing, and cannot be altered after it is pro- nounced and signed by the judge; but after it is so signed, they might appeal to a superior jurisdiction. But where they were in the last iwd. ses, n. is, resort, as when .it came up to the prince^ there they might appeal from the prince uninformed Andreas vaiien. to the prince better informed, which was in nature of a review of the same sentence. Thus it is in the court of chancery ; for all orders are interlocutory, till they come to the definitive sentence, which is signed by the court ; for that sentence signed and enrolled is the definitive sentence in the cause, and all prepa- rations before that are but interlocutory; for * For so much. 180 FORUM BOMANUM. [Chap. X. the decree pronounced on the hearing, which is taken down by the register^ is but an interlocu- tory sentence, till it comes to be signed by the judge of the court and enrolled. Hence it is, that if the counsel are dissatisfied with the sentence or decree, as it is first pro- nounced, they may sign a petition for a rehear- ing, and the court will grant one rehearing at least before they sign and enroll such decree. Any exhibit may Upou this rehearing, any exhibit may be voce on a rehear- proved *vivd voce, as upon the original hear- ing ; but no proof can be ofifered of any new matter without special leave of the court, which is seldom granted. When such decree is pronounced, t^e for whom such decree passes is to make out a draft of the same, which is to be showed to his counsel, who finding the same agreeable to what was pronounced by the coui't, is to sub- scribe his name thereunto, and then such draft is to be delivered to the attorney of the ad- verse party to consult his counsel, who is like- wise to subscribe the same, or otherwise to give his exceptions in writing under his hand to the said draft, within eight_ days after the same was delivered to the attorney ; and if he delivers any exceptions, the difierence is de- termined by the court ; but if no such excep- tions are delivered, then the ofiicer is to make it upon the notes according to the draft perused by the counsel in whose favor the decree passes ; and in all cases the officer first signs such decree, and then it is signed by the judge, *By word of mouth. f Query: Is this not diauaedin modern practice? Chap. X.] FOROM ROMANUM. 181 which is an authority for the officer to enroll it among the records of the court. When such decree is enrolled, it can never afterwards be altered without a bill of review and reversal, unless there be an apparent error in casting up the sums upon the face of the decree, for that being a mere mistake of the officer in drawing up the decree, and only the error of the clerk, it may be rectified upon motion without a bill of review. So likewise, if some part of the decree be omitted in the en- rollment, that may be corrected upon motion to the court, because it is likewise *vitium scrip- tons; and therefore, by leave of the court, it may be corrected and set right. If there be any error in the iudgment of the nni of review . , , r. „ "^ , , cannot bo filed ludge, that cannot alter enrollment be corrected withoat leave of ' • . . . the court. but by the bill of review, and this cannot be filed but by leave of the court, because the chan- cery being the court of the prince, and in the last resort, the decrees of the prince are not to be changed or altered without leave. And this is never done but upon terras. The first is, that obedience be actually paid to the sentence, as far as it can be paid without preju- dice to the right of the party in the cause so to be reviewed ; for if such obedience be not paid to the sentence, it is presumed that such bill of review is only brought for delay, and not upon any real grievance to the party. But where the sentence is performed in manner aforesaid, there it is plain that such bill is for the sake of rights 'and not for delay. But where the performance of the decree *The transcriber's fault. 182 FORUM ROMANUM. [Ghap. X. would prejudice the right of the party in the cause to be reviewed, as where the decree is to deliver up deeds, or to cancel them, there the plaintiff is not obliged to perform such decree on exhibiting his bill, because, if he should pre- vail on such review, the court cannot by their decree put him in the same state and plight he was in b^fo^e ; and so, if the court see good cause, they can dispense with the performance of any part of their decree, upon giving good security for the performance. The second requisite is, that a sum of money be deposited in court to answer the expense of such bill of review. At first it was but ten pounds, afterwards twenty pounds, and now it is risen to fifty pounds. Thirdly. They can examine to nothing that was in issue in the original cause, unless it be any matter happening subsequent which was not before in issue, or upon matter of record or writing not known before ; for if the court should give them leave to enter into proofs upon the same points that were in issue, that would be under the same mischief as the examination of witnesses after publication, and an inlet into manifest perjury. (a)Co. Lit. 303; 6 After a dismission of the first bill of review, irfs'tim'jPdnoip. there Can be no other, because it would be infi- nite, aTid*expeditreipubUccButsitf,mslitium,{a.) None but parties and privies, as heirs, exe- cutors, or administrators^ can have this bill of review, since nobody else can be aggrieved by such decree, because it can only be revived upon such privies. *It is for the public good that lawsuits bo determined. Chap. X.] FOEUM KOMANUM. 183 No bill of review can be brought to reverse where a duty is i. ■ 1 J j_-n ^1 ,1 1 • decreed, no bill or set aside a decree till after the decree is en- ofreviewcanbe rolled, and the party deposits fifty pounds on duty is paid. the bringing thereof. And where a duty is decreed, no bill of review lies till the duty is paid and the decree performed, unless in some special cases, where the court will permit the party to do it, on giving security to perform the decree. Where deeds and writings are de- creed to be delivered up, the party must do it before he is admitted to bring his bill of re- view. But where the party is by the decree to extinguish his whole right to the thing in question, as where he is either to convey or release his right, he shall in this case be admit- ted to bring his bill of review before that is done; for, otherwise, when his right is extin- guished, there is an end of the bill of review. The bill of review is to assign proper errors bui of review is against the decree and proceedings. It must er/o^slgainst" be error apparent upon the face of the record of if anynew'matter ^ . , arises after the the court, since the court cannot ludge beyond decree, wiiioiithe ■' ° •' party could not that. If any new deed is found out, or a new ppssibiy come to •' ' the knowledge of discovery made since the hearing, which the at the hearing, he J o' must annex an party had not knowledge of at the hearing, "ffidavit of it. and hath since then come to the knowledge of it, he must annex an affidavit of that matter, and pray an answer of the adverse party ; and he must, upon filing his bill of review, serve the party with a subpoena * ad revivendum. The party, generally speaking, puts in the usual demurrer, that there is no error in the decree. He rarely or ever answers, unless or- dered thereto by the court. There was one * To revive. 184 FORUM KOMANTJM. [ChAP. X. precedent where such a demurrer was allowed, though the party had since the decree come to the knowledge of two letters which seemed to overthrow the decree and all the proceedings dependent thereon; and the court in that case would not put the party to answer to those two letters, but allowed the demurrer. The reason given in this case was, that the party might have found out these letters before the hearing, since he had them in his own custody. And if this practice should take place, it might over- throw all the decrees in the court ; and if this should be allowed as a precedent, a man might take up his defense when he pleased ; whereas his whole defense ought to be made at once, and before the hearing. It is said the lords reversed the allowance of the demurrer, and ordered the party to answer to the bill of re- view. But this precedent may be found out whenever there is occasion for it. Certainly the reversal in the house of lords was right; for the letters relating to the part- nership were found after the decree, which the party had no knowledge of, though they hap- pened to be in his custody. They ought to be taken under consideration, even after a decree signed and enrolled. But then the party in whose custody the papers were must give an account of their manner of coming to light. And in this case these letters were sent in trunks from Hamburg, where he had no reason to suspect there were any papers relating to the cause ; so the finding of them was as much cas- ual after the decree as if they had not been in the party's custody. And any matter casually Chap. X.] FORUM ROMANUM. 185 coming to light after a decree that would make an alteration in the decree ought to be taken ' into consideration upon a bill of review. And therefore they reversed that part of the decree which established the demurrer to the bill of review, without compelling the defendant to such bill of review to answer to the letters. The demurrer being set down to he argued, the court proceeds to affirm or reverse the de- cree, and the prevailing party takes back the fifty pounds deposit. As there are always six months allowed the party to enroll his decree, if he comes to enroll it after that time he must apply by petition to the court to enroll it *nunc pro tunc; and this is always granted. But it is conceived such an order should be passed and entered with the register, the proper repository for all those or- ders. And though this is never done, yet a case may fall out where it may be of fatal con- sequence to the party. For suppose one of the errors assigned by the bill of review should be that, by the ancient rules and practice of the court, the decree is to be enrolled by such a time, and yet, upon the face of the eni'ollment, it appears to be enrolled afterwards, without any leave or order of the court for its being so, for the day of signing the decree always appears upon the face of it ; and if it falls out that there is no order entered with the register to enroll the decree * nunc pro tunc, how will such an er- ror or mistake be ever cured or got over? And There should therefore it were to be wished that all those order when a de- cree is to be orders to sign decrees * nunc pro tunc were en- signed nunc pro ° ^ tunc. * Now for then. 186 FORUM ROMANUM. [Chap. X. m tered with the register, to obviate a fatal error which, one time or other, may fall out. And much less (according to late practice) is ever an order, signed by the master of the rolls, to sign and enroll a decree when the time is elapsed *nunc pro tunc, thought a suflficient reason for the lord chancellor to do it, because it is his hand alone that gives sanction to the decree; and though it is made at the rolls, this is nothing, because the decree when enrolled is the decree of the court ; and the conclusion is : "It is therefore this day (viz: such a day and " year) ordered, adjudged, and decreed by the "Eight Hon. Sir Robert Henly, knight, lord " keeper of the great seal of Great Britain, and " by the power and authority of the high and " honorable court of chancery, ordered, ad- " judged, and decreed," (so and so.) And how is it possible for an inferior officer (as the master of the rolls is) to direct the supe- rior officer to sign and enroll the decree, or how the great seal can justify the doing of this by any authority but their own, where it is solely lodged, deserves consideration. Appeal from Towards the latter end of King Charles the lords is upon a first, the houso of lords asserted their jurisdic- vaudry v. Pan- tiou of hearing appeals from the chancerv, which nell, 2 Rol. Abr. ,, . o rr _ jt 318; K.p.3; 3 they do upon a paper petition, without anv writ Bulsl.116; Roll. .. > , J_,. '^ ' •' Rep. 246, 331; 1 diroctcd froiTi the King ; and for this their foun- Bacon's Abr. 684. ... ° dation is, that they are the great court of the King, and that therefore the chancery is derived out of it, and by consequence that a petition will bring the cause and record before them. This was long controverted by the commons in the * Now for then. Chap. X.] FORUM ROMANUM. 187 reign of Charles the second, but is now pretty well submitted to, because it has been thought too much that the chancellor should bind the whole property of the kingdom without appeal. As to the execution of the decree, when the decree is *in rem, there an injunction is awarded by the decree of the court to put the party in possession, which issues immediately. But when the decree is '\in personam, then there is a writ of execution of the decree ; and in chancery the decree itself is inserted in the body of the writ and in the exchequer annexed to it. If the defendant does not perform it, on affi- davit of service and of the non-performance, an attachment issues: so proclamation, commis- sion of rebellion, sergeant-at-arms, and seques- tration. But if the sheriff returns Jcepi corpus, and No bail on an nt- lets him to bail, which he should not do where non-performance the writ is marked for the execution of the de- oomyn'.sRep.204, . . T . ,. p. 145; Cases of cree, there a sequestration is granted immedi- Praot.o.B.u,ioa ately. So if he be brought up by ||/ta. cor., and lies by it in the Fleet, and will not perform the decree, a sequestration maybe granted, for the writ of executiojj for non-performance of the decree makes him **contumax. And the an- cient way of punishing the contumacy was by imprisonment. But after the sequestration pro- cess obtained, then it was not thought enough to punish the evil conscience bf the party by * Against the estate. f Against the person. ' % I have taken the body. || Have the body, a writ so called because it commanded the sheriff to have the body on such a day and at such a place. ** In contempt. 188 FORUM ROMANUM. When plaintiff must take out a subpoena scire facias. [Chap. XI. imprisonment, but likewise to compel Wm, where he appeared to be a prisoner, to make satisfaction. * Where a man does not proceed on a decree for a year and a day, the plaintiff must have a subpoena ■\ scire facias, or bill of revivor, be- cause the decree as well as the judgment at law after such time is supposed to be released, discharged, or performed, and therefore the defendant ought to have a day in court to show it, which he cannot have without such process. CHAPTEK XI. OF INJUNCTIONS, ELECTIONS, SUPPLICAVITS, AND NB EXEATS REGNO. Injunctions are of various Itinds. Injunctions are of various kinds. There are many things which the parties are enjoined from committing and doing which cannot be here taken notice of. 1. Where tenant for life is committing of • *A motion Jor a sequestration against a prisoner in the Fleet, for not paying the rents and issues of an estate to a receiver ap- pointed by a decree of this court, was denied by my Lord Keeper Henley ; his lordship being of opinion that it was too much for a court of equity to order double execution. Note : The regis- ter produced a precedent of such an order made by the late Lord Cliancellor Hardwioke on a like occasitm; but his lordship thought the circumstances of the present case were differen t. And this was between the Attorney General and Tancred, at the last seal before Hilary term, 1758. fTo show cauee. Chap. XI.] FORUM EOMANUM. 189 waste, in cutting; down young timber, or break- where tenant in , . r , tail shall have an inff up or plowmar ancient meadow or pasture, injunction 1 . 1 , . ., , J against tenant for or doing other waste, the tenant in tail shall life. have an injunction upon certificate of filing of the bill and showing an affidavit of waste committed ; and this till answer and further order, for timber once cut down cannot be set up again. 2. If a man be tenant for life without im- Where tenant for . . life, without im- peachment of waste, with remainder to his peaohment of ^ ' waste, ahall be first and every other son in tail, though by !;>?<*®''edfrom *' _ 7 D J doing waste. virtue of that clause (without impeachment of waste) he may fell timber, and alter any rooms of the house at his pleasure, yet if he should pull down the house, or any part of the build- ings thereunto belonging, in spite of the heir, the court of equity would enjoin, but not if he pull down to j-ebuild; for though the clause (without impeachment of waste) gives an abso- lute property in the timber, that then he may do what he will, yet he is but tenant for life of the lands and houses; and therefore, if he pulls them down in order to vex a son that has disobliged him, he acts with an ill conscience, and therefore a court of equity may enjoin him, because he acts against conscience. See Lord Bernard's case, Gilb. Eq. Bcp. 127; Pre. Ch. 2Ch. cas.32. S. p. declared by 454. the court. 3. So it is for building on another man's ground : injunction shall go to stay this new building till answer and further order ; and so in the case of stopping up ancient lights ; and so in the case of a patent to prevent the print- ing and selling of almanacs. But the patent under seal is always produced in open court. 190 FORUM EOMANUM. [Chap. XI. Injunction to be relieved against a penalty. Injunction to stay trial at law. A perpetual in- junction. 4. If one man brings an action at law against another, and a bill is brought for relief either against a penalty or to stay proceedings at law, in that case the plaintiff shall move for an in- junction, (it is never done by petition.) He may move either upon an attachment, or praying a *dedimus, or further time to answer. For, it being suggested in the bill that the suit is against conscience, if the defendant be in contempt for not answering, or prays time to answer, it is contrary to conscience to pro- ceed at law in the meantime, and therefore an injunction is granted of course. As this is the common and usual injunction, so it only stays execution touching the matters in question ; and there is always a clause giving liberty to call for a plea to proceed to trial, and for want of it to obtain judgment. But execu- tion is stayed till answer or further order. 5. There is yet another injunction, which is an injunction to extend to stay trial. This is never granted but upon notice, as where one files his bill, and it appears to the court that the plaintiff's equity must arise out of the de- fendant's answer. In this case the court will, and often does, grant an injunction, and that the same may extend to stay trial. 6. There is another injunction, called a per- petual injunction, tor quieting a man in the possession of his estate. This is generally either upon a plain equitable title, or where one, two, or more verdicts have gone against a man. This injunction is to quiet the plaintiff and his heirs foreyer, and all claiming by, from, or under * Commission, Chap. XI.] FOEUM ROMANUM. 191 him ; and this is very often granted, and in many instances the justice of the court calls for it. Lord Oowper, in Lord Bath and Sherivin's Gi\h.-Eq.K&p. 2; case, ruled that he could not stay trial, if there were never so many verdicts in ejectment, where the title was merely at law. But qucere the reason of his resolution, because, if the plaintiff at law he vexatious, and that appears to the court, as it will after many trials, it seems that the plaintiff at law proceeds with an ill con- science, and therefore will be enjoined. 7. There is another injunction, to prevent injunction to pve- ... n . 1 . vent multipUciiy multiplicity of suits: as where many suits are of suits. depending and are likely to happen from one and the same thing. The court will here in- terpose and grant an injunction. They will direct a proper issue to try the whole, and all the rest shall be bound by the verdict ; or else there might be twenty actions and as many verdicts, where one proper direction or issue ends the whole; and it is only directing one issue to prevent many more. 8. There are other injunctions, which are never denied: as in an ejectment, where the party agrees to give judgment in ejectment to prevent trial, to give a release of errors, and to consent not to bring a writ of error. And to this, it is sometimes added, to deliver posses- sion, as the court upon hearing shall direct. This forwards the defendant at law, and he could have no more if he were to proceed to trial. 9. The methods of dissolving injunctions are j°nctTons"pon"' ,.,.^1 ii ■ J J.1 coming in of tlio various. When the answer comes in, and the answer. 192 FOKUM ROMANUM. [Chap. XI. party hath cleared his contempt by paying the costs of the attachment, (if there is one,) he obtains an order to dissolve * nisi, and serves it on the plaintiff's clerk in court. This order takes notice' of the defendant's having fully an- swered the bill, and thereby denied the whole equity thereof; and being regularly served, the plaintiff must show cause at this day. And the defendant's counsel, where there is no proba- bility of showing cause, may move to make the order absolute, unless cause shown sitting the court. The plaintiff must show cause either upon the merits or upon filing of exceptions. If upon the merits, the court may put what terms they please upon bim, as bringing in the money or paying it to the party, subject to the order of court ; or giving judgment with a release of errors, and consenting to bring no writ of er- ror ; or to give security to abide the order on hearing, or the like. And to this order is gen- erally added a clause, that the plaintiff shall speed his cause to an hearing. If the plaintiff shows cause upon exceptions filed, he must procure a report in four days of the insufficiency of the answer. And if the motion is made at either of the last seals after Hilary or Trinity term, the court sometimes puts the plaintiff upon opening the exceptions, and they judge whether they are material or not. The reason of this is, because the defend- ant (if the answer should be reported sufficient) hath no opportunity to move the court till the seal before the next term, and is thereby greatly * Unless. Chap. XL] PORUM EOMANUM. 193 delayed. If the court think the exceptions material and necessary, they will grant the motion ; if otherwise, they will deny it, as the case appears. And there is, or at least should be, always added this clause to the order, (es- pecially when the motion is made at the last seal,) that the plaintiff shall procure the report in four days, or his injunction to stand dissolved without further motion ; whereas it is not so in open term, or at any of the seals save the last. And this clause being added, the court need not hear the exceptions opened, Avhich often- times take up too much time. If the master reports the answer sufficient, it is a motion of course to dissolve the injunc- tion. And whereas of late it hath been doubted whether, as the plaintiff undertakes to pro- cure the report of the insufficiency of the an- swer, which being found against him, he shall afterwards show cause on the merits. There seems no foundation for this objection, and it would be the hardest case in the world if it should be so ; for there are many instances where the plaintiff's counsel may think the answer not full, and yet may be mistaken ; and notwithstanding this, the plaintiff may have good cause, on the merits, for continuance of his injunction, and he ought to have liberty to do it. But this must be done on notice given to the other side. He cannot do it when the defendant's counsel come to move to dis- solve the injunction, on the answer being re- ported sufficient, because, as this is a motion of course, the party is not prepared to speak 13 194 FORUM EOMANUM. [Chap. XI. to the merits, but he may and ought to have liberty to do it on notice given. The late master of the rolls, whenever the party petitioned to receive exceptions, the time for filing thereof being out, always added a clause that it should be so, but so as not to continue an injunction ; and this clause was often wondered at, and never rightly under- stood, and is of late left out ; for where there was no injunction at all, that clause was super- fluous. If plaintiff dies 10. If the plaintiff who hath an injunction TioSoflSFiSuno-dies pending the suit, in strictness the whole ablt'e'cL^ ^"^ '^ proceedings are abated, and the injunction with them. But even in this case the party shall not take out execution without special leave of the court. He must move the court for the plaintiff to revive his' suit within a limited time, or the injunction to stand dissolved ; and as this is never denied, so, if the suit is not revived, the party takes out execution. There are some instances where a plaintiff may move - to revive his injunction ; but as that rarely hap- pens, so it is rarely granted, especially where the injunction hath been before dissolved. But where a bill is dismissed, the injunction and everything else is gone, and execution may be taken out the next day ; and this was never yet doubted. Of breaches of in- H. As Concerning the breach of injuuctioiis, juno ions. .^ hath bocu of late practiced to commit the party on personal notice given him, but never on notice to his clerk in court. But the old rule was, to proceed by way of attachment ; and it would prevent daily inconveniences if it were Chap. XI.] FORUM ROMANUM. 195 • strictly held to ; for otherwise a man is com- mitted, and at once deprived of his liberty, and cannot move or petition but * in vinculis, un- less the court otherwise give leave on a petition to hear him. 12. Whereas, by the ancient rule, where a man is guilty of the breach of an injunction, upon affidavit made thereof, the plaintiff's clerk in court issues out an attachment against him of course. He is arrested thereon, gives bail to the sheriff, and enters his appearance with the register, so the court has hold of him. The plaintiff files interrogatories in the ex- aminer's office to examine him. The inter- rogatories are "l verbatim, according to the affi- davit; and if the party does neglect to attend and be examined, it is a motion of course to examine him in four days or stand committed. If he confesses the contempt, he must submit, own his fault, beg pardon, and pay costs. But if he denies it by his examination, the plaintiff descends to prove it upon him. He may cross- examine the plaintiff's witnesses, but is not admitted to examine any one witness himself. Then the plaintiff moves to refer it to a master, to see whether the party is guilty of the con- tempt laid to his charge or not. Here again he hath liberty to be heard, and may except to the report, and bring it on for the judgment of the court ; and if the court is of opinion that he is guilty of the contempt, he must stand committed, and pay the costs. But if the court is of a contrary opinion, (which often happens,) he is acquitted with costs. So careful hath the * In custody. f Word for word. 196 PORtTM KOMANUM. [Chap. XI. court always been of depriving a man of his liberty, that they have provided all these just cautions of his being heard before he stands condemned, (as, in the case of a commitment, he at once is ;) and however necessary it may be to shorten the process of the court after a decree, yet, in this case, which is only mesne process, it is hoped the old rule will be kept up, and the short way of committing discounte- nanced as much as may be. Indeed it hath been lamented that, after a decree, the process of the court should be very long and tedious to be gone through ; and it hath been often thought that, upon an attach- ment made out against the parties, and *non est inventus returned, the next process ought to be a sequestration, or at least a commit- ment^ which the court have of late fallen into for breach of decrees. But this is never to be done in mesne process. Of elections r the As concerning elections to be made by the defendant must , , , . .... . , first answer be- party: Where one man brings his action at law the piaintiirto against another, and his bill in equity for the choose whether . . he will sue at law same matter and at the same time, the de- or in equity. , i -n fendant must first answer the bill, and then he shall put the plaintiff to his election in which court he will proceed. This is a motion of course for the party to make his election. He has, by the order which is served on his Eight days to clerli in court, eight days to show cause why show cause. i i i i ' i i . he should npt make his election. If he elects to proceed at law, his bill in equity must stand dismissed with costs. If he elects to proceed in equity, an injunction issues *I8 not found. Chap. XI.] FORUM EOMANUM. 197 to stay proceedings at law. This election is filed in the report office, and signed by the plaintiff's clerk in court, and is the ground work and authority for making out the injunc- tion, if he elects to proceed in equity. But this election doth not hold in all cases ; for if the suit in equity is not for the same matter, he shall not be put to his election. If the bill ii a bill of discovery only, and no relief prayed, he shall not be put to his election ; for perhaps from that discovery he may be enabled to proceed at law, and without it he cannot. And upon this head there seems to be a plain failure of justice, which hitherto has never (as we know of) been taken into consideration. As, for example, suppose the plaintiff elects to pro- ceed in equity, and his bill upon the hearing is dismissed, with or without costs, all the bene- fit the defendant (who is doubly vexed with it) hath is only to have his costs, and to plead it in bar to any new bill brought against him for the same matter, for a dismission for want of prosecution upon an interlocutory order is not pleadable ; but this injunction for stay of a dismission , . , . ,,,... upon an interloc- proceedmgs at law is gone by the dismission; utory order is -, . on ■ ■, • T1 1 1 not pleadable. and the plaintiff in that case is at liberty to proceed at law, which was never the intent of the court at the time of putting him to his election ; for the order of election is, that the plaintiff is prosecuting at law and in equity for one and the same matter, and therefore he is called upon by the justice of the court to elect in what court he will proceed, but still he is not to proceed in both courts. Well, then, he takes his fate in equity, and 198 FOKUM KOMANUM. . [Chap. XL finds that court against him ; and when he has done there, he shall take another course at law, which is thought to be a great hardship, and it were wished that by the wisdom and jus- tice of the court it were remedied. But the defendant hath remedy in this case ; for he may file a cross bill and have a per- petual injunction at law ; and then, though the plaintiff's original bill is dismissed*, yet the defendant may have a decree upon his cross bill. As concerning suppUcavits.* ofsuppiioaTita, This is a writ wholly appertaining, and is and when grant- i-»r-n77T. in ejp t • n ii- necessary. mauded. Jsut iraud IS properly conusable m a court of equity, because it lies in the dark, and is discoverable principally from the oath of the defendant himself; and therefore, though an action on the case lay upon the fraud, yet it is proper for a bill in equity. Where the matter And it is a general rule that, wherever the of a bill is merely «,.,,. i • i in damages, the matter 01 a bill IS merely in damages, there the remedy isatlaw; . o' butif fraud be remedy IS at law, because the damages cannot mixedwuhtliem, , . ° the chanoeiior be asccrtamcd by the conscience of the chancel- wul retain tlie bill ^ "easoertZfd^ ^°^' ^^^ therefore must be settled by a jury at by a jury. law; and therefore the chancery never tries the * quantum of the damages in a ■\ quantum dam- nificatus, where you demur to the bill, unless there be matter of fraud mixed with the dam- ages. As if -4. brings an action of covenant at * Quantity. \ What damages. Chap. XII.] FORUM ROMANUM. 215 law for damages, and B. files a bill for an in- junction, upon this equitable suggestion, that the covenant was obtained by fraud: if A. files his cross bill for relief upon that covenant, the court will retain it, because the validity of the deed is brought in question in that court, and on a head properly conusable there ; and there- fore, if the validity of the deed be established, the court will direct an issue for the * quantum of the damages. But a man comes properly into a court of equity for the specific performance of a cove- nant, because a man is in conscience obliged to perform his own contract in specie ; and there- fore the relief at law which gives Only damages for the breach or non-performance is inade- quate, and consequently the plaintiff is proper in equity for that specific performance which he cannot obtain at law; and therefore the court retains such bills. But here a distinction is to be observed, that what is to be . done when there where the common law would give the same la the same relief , in law as in relief as a court of equity, there, if the defend- equity. ant would deny the deed and demur to the re- lief, the demurrer will be allowed: as if the covenant were to pay a certain sum, and the deed be denied, the defendant hath a right to try it by a jury. And there being the same relief at law in this case as in equity, to avoid circuity the cause ought to be dismissed and left at law ; and the rather, because equity doth not relieve where the plaintiff hath the same relief at law. But if the defendant doth not demur to the * Quantity. '216 FORUM ROMAN UM. [Chap. XII. relief, but answers, and the deed denied by the answer is proved in the cause by two witnesses, the court will decree for the plaintiff on the hearing ; but if it be prored only by one wit- ness, there the court grants a leading order to try it at law, and then the parties come back upon the equity reserved, because the defend- ant admitted the jurisdiction by answering and putting it in issue, and not demurring there- unto. But where the covenant is not for the pay- ment of money, but for the doing a thing in specie, as conveying lands or executing deeds, there, though the defendant denies the deed, yet he cannot demur to the relief because the plaintiff seeks a different relief, and is entitled to other relief, if the deed be good, than what the law can give him ; and therefore the de- fendant's suit is well instituted in the court of equity, since he must come back for that relief to equity after the deed is established by law. In what eases the Secondly. Where Conveyances are defective, heir and heir in .p ,i -, i 1^ -i tail shall make it they DC upou Valuable consideration, a court conTcyance. of equity will oblige the vendor or mortgager\ to make good the defect, because it is accord- ing to conscience that he should make good his own agreement or contract ; and this as well where there are covenants for further assurance as where there are not. But where there is a defective conveyance without an equitable con- sideration, a court of equity will not oblige him to make it good, though there be a covenant for further assurance: as if a man makes a voluntary feoffment to a stranger without liv- ery, the feoffor or his heir shall not be obliged Chap. XII.] FORUM ROMANUM. 217 to make good that defect, but it shall be con- strued in equity to be an estate at will, as it is in law. But if a man conveys to a younger son by a defective conveyance, a court of equity will oblige the father and the heir to make it good. The father shall make it good, whether there be a covenant for further assurance or not, be- cause the conveyance shall be intended a pro- vision for the son, which is a good considera- tion, the father being obliged to provide for , him by the law of nature. The heir shall likewise make it good in these two cases : first, where there is a covenant for further assurance binding the heir, because the heir is bound by the covenant ; and secondly, where there is a provision made by the father in his lifetime for the heir, or where he hath such a provision by descent from the father. There the heir shall make it good without a covenant for further assurance, because the intention of the father to provide for his younger son is just and equitable; and therefore the heir shall ful- fill it. But where the father conveys to the son by a legal conveyance, and afterwards sells to a stranger for valuable consideration, but by a defective conveyance or by articles agrees to sell, the son shall be obliged to supply the de- fect in the second conveyance or to execute a deed pursuant to the articles, because the pur- chaser for valuable consideration is to be pre- ferred in equity before the provision for the son ; and the provision for the son is esteemed fraudulent in equity where the father afterwards 218 FORUM BOMANUM. [Chap. XII. conveys for valuable consideration. Leach v. Dean, Cli. liep. 146. But if a man makes a conveyance to a son, and the son sells for valuable consideration, and after the father sells for valuable consid- eration, the purchaser from the son shall pre- vail, because he had purchased for considera- tion without notice of the father's intention to sell afterwards for value ; and therefore, as he comes in with a good conscience and for value, he shall hold against the purchaser of the father. But if the purchaser from the son comes in by a defective conveyance, and the purchaser from the father comes in by sufficient convey- ance, without notice of the sale by the son, he shall hold it against the vendee of the son, be- cause both are equal in equity ; and then he who has the legal estate of course prevails. ch. Gas. 172; 2 If a tenant in tail makes a conveyance for 233" 239. ' ^^' valuable consideration, without fine or recovery, and dies before the fine or recovery is levied or suffered, a court of equity will not oblige the issue in tail to make good that conveyance by docking the entail, because the court of equity cannot set aside the statute *de donis, which says that ■f voluntas donatoris ohservetur ; nor would the court set up a new maker of convey- ances of entail other than by fine and recovery. But if the issue in tail receives part of the pur- chase money in his father's lifetime, or after his death, or if he had joined in the deed with his father, or covenanted for further assurance, a *0f gifts. -j-The donor's will shall be observed. Chap. XII.] FORUM ROMANUM. 219 court of equity would oblige him to make it effectual by fine and recovery. But if tenant in tail covenants for valuable ch.cas.29t; 2 considerations to levy a fine, and is decreed to do so by a court of equity, but dies before the fine is levied, his issue is bound by the decree, £^nd shall be compelled to levy the fine. And the reason is, because the court of equity would have decreed that, whenever the master of the estate receives money, his heirs should have conveyed, if that would not have introduced a new manner of conveying of estates tail. For a court of equity would not have distinguished whether the conveyance was by fine or recov- ery, when price was paid, or by deed under hand and seal only, [for livery was as essen- tial to pass a fee at common law as the recovery was to pass the tail, and yet the court of equity dispensed with the ceremony of livery where price was paid for the entail ;] if it had not been for this inconvenience, that it would have introduced a new manner of conveyancing of entails. And as copy-holds were conveyed by surrender, so entails were conveyed by fine and recovery, and they have never changed the methods or instruments of conveyancing of these estates. And it would have altered the very method of conveying the entail, if the heir should be bound specifically to perform the covenant; because no purchaser would have troubled himself with a fine or recovery if, when the issue in tail had molested him, he might have resorted to equity, and had an in- junction or other relief there ; and the King would have lost a great perquisite by the fijies 220 PORUM ROMANUM. [CHAP. XII. on the writs of entry, and in fines for aliena- tion, if any other method of conveying estates tail had been established. But none of these inconveniences will ensue where they institute a suit in the lifetime of the tenant in tail, and obtain a decree against him to levy a fine and suffer a recovery. For there it appears that the purchaser doth not trust to any other convey- ance than a fine or recovery from tenant in tail, when he comes in his lifetime to oblige him to execute them. And the original equity of the purchaser is not altered by the accident of the death of tenant in tail, but the issue shall be Deoius Reg. bouud to make it good according to the maxim, * qui decretum hdbet ad rem recuperandum, ip- sam rem videtur habere. And it seems that the heir in tail, though not heir to the covenant, and the remainder- man also, will be bound by the decree against the then tenant in tail, because it is a decree fin rem, and not merely ^in personam; and therefore, whoever comes after the person who sold, and who at the time of the sale had the entire dominion over the land, shall be bound by the decree that affects the land itself. But qucere. His case is cited But it was Settled in the case of Sanqon and in Coventry v. -nr'n • coveiury,^«iib. WiUmins, adjudged the fifth of i?'e6r Mary, twelfth of Queen Anne, that where tenant in tail for valuable consideration mortgages his estate without levying a fine or suffering a recovery, and a bill is exhibited against tenant in tail to * He who hath a decree for the recovery of an estate is looked upon to be in possession of the estate. f Against the estate. § Against the person. Chap. XII.] FOKUM ROMANUM. ' 221 dock the entail, and decreed accordingly, upon which tenant in tail is taken up, and dies in prison, and afterwards a bill is preferred against the heir in tail to execute that decree upon him ; but the plaintiff's bill was dismissed, both by the master of the rolls and upon a re- hearing by the lord chancellor, because the statute de donis ., ,. ,,. ,,, I'T 1 binds a court Of statute * de doms conditionahbus, binds the equity. court of equity, so that they cannot decree t*« rem, contrary to the statute, since the court of equity is bound by the statute, as well as a court of law ; and therefore they could only decree against the tenant himself, and not against the heir ; for though a tenant in tail may creep out of the statute by a recovery, yet there the statute is legally avoided by a title paramount; and this fictitious title is allowed to prevent perpetuities. But where the estate tail is not legally avoided, the court of equity will not pretend to set aside the operation of the statute by their decree; and this was al- oiib.Eq.Rep.ieo. lowed to be the true doctrine in the case of Coventry and Coventry. But there is no doubt that if a tenant in tail of a copy-hold should sell his copy-hold for money, and die before the surrender, a court of equity will decree the heir in tail should convey, because the entail of a copy-hold is at common law, and not within the statute §de donis; and therefore the want of a surrender will here be supplied, as well as livery. But if there be tenant in tail in equity, as of a trust, or under an equitable agreement, and * Of conditional gifts, or gifts in tail. ■j- Against the estate. ? Of gifts. 222 PORrM KOMANUM, [CSAP. XII. such tenant in tail bargains and sells the land for money, without fine or recovery, this shall bind his issue, because the statute *de donis doth not extend to it, being an entail in equity ; and this being a creature of the court, the per- son that is master of it shall in equity bind any person deriving under him. Norcliffe v. Wor- sell, A^els. Ch. Rep. Temp. Finch, 128; Ch. Cos. 234; 3 Ch. Rep. 29; Nortli v. Champernoon, Eq. Abr. 256, p. 3, 258; J9. p. 1 ; 2 Ch. Cas. 63, 78; Vern. 13; Sayle v. Freeland, Eq. Abr. 345, p. 15 ; 2 Vent. 350. See also the case of Coventry and Coventry, Gilh. Eq. Rep. 160. This distinction affirmed. Ch. cas.234; 2 Ch. But if tenant in tail of a trust in equity comes 350.' ' ' to the court for a specific execution of the trust; and desires that it may be executed to him in fee, though he be master of the estate, yet the court will not decree it to him in fee, because that would be an injury to the remainderman, insomuch as there is a hazard that the tenant in tail may die before the entail be docked by the recovery. And so it is if money be devised to be laid out in land, and to be settled in tail with a remainder over : if the tenant in tail ap- plies to equity for the money, he cannot have it without the consent of the remainderman, because the money is considered in equity as land; and as equity cannot bar the remainder upon an entail of lands without a recovery, so neither can they decree the absolute property of money without the remainderman's consent. And if he doth not consent, you take away the hazard he has of obtaining the money in case *0f gifts. Chap. XII.] FORUM EOMANUM. 223 the tenant in tail should die before the pur- chase made, or after, the purchase made, and before the rjecovery suffered. And here, by the way, we may take notice if tenant in tail of that it hath been the opinion of equity men tracts debts by .!,.«. j_ ■ J 'S p 11 mortgage or judg- tnat, It tenant m tail or a trust contract debts ment after issue that will affect lands, as if he mortgages the issue and remain- ,,,, „' ., ,,. derman. ' trust estate or contesses judgment, and dies ^post prolem nuscitatam, i\e court will decree such debts to be paid out of the trust estate in favor of creditors against the issue in tail or the remainderman, because they construe their own creature as a fee simple conditional before the statute fde donis, which became absolute by the having issue, and the donee thereby had the power of alienation over it. Having thus said how far the tenant and heir and heir in tail shall make good a defective con- veyance, the next thing to be considered is how far the assignee of the person making such de- fective conveyance should be obliged to make them good. And here, in the first place, if a man makes a defective conveyance, as a mortgage by feoff- ment without livery, and after should convey to a purchaser for valuable consideration by an effectual conveyance without notice, the second shall undoubtedly prevail, because he hath both law and equity ; and there the title at law must prevail, there being no equity to set it aside. But where A. takes a mortgage by a defective The original se- 1 _£•_«? , •,! , T curity of abond conveyance, as by a leoiiment without livery, is only against , , „ „ the person; but and the mortgager borrows money ot B. upon after judgment it bond only, and B. afterwards obtains judgment tate. *After issue born. .f Of gifts. 224 FORUM ROMANTJM, [Chap. XII; against the mortgager, and so extends the mort- gaged lands, there a court of equity will relieve A., and oblige B. to supply the defect of livery in the mortgage. For in this case B. was only a bond creditor, and his original security was only *in personam, and therefore, when he bet- ters his security by a judgment fiw rem, yet this shall be only a lien on the land, as it was in possession of the mortgager or his heir; and that is subsequent to a mortgage defective at law, but which was good in equity. And they keep them bound in a court of equity to make good the defective conveyance. And there is a manifest difference between this and the com- mon case, where a man mortgages land to A., and afterwards to B., and afterwards to C, without notice. There C, having honestly taken the land as his pledge, has a title to the land itself, and therefore he might take in the title of A. to strengthen and corroborate his own, though by that means he crowds out B., for he that hath an honest title to the land, may take in a precedent title to secure his own ; but he that has no title to lands, as the bond creditor had not, cannot subsequently secure that money by judgment, so as to crowd out a person that had a title to the land itself. For the forming a legal title to the land by the judgment on the bond, which was originally a personal security, is grasping at land which then in a court of equity belonged to another ; and therefore he must enjoy them subject to the equity. For the court of equity will not suffer the person that originally lent upon the secu- * Against the person. -f Against the estate. Chap. XII.] FORUM ROMANUM. 225 rity of land to have tlie security destroyed by one that did not lend upon that security, since a court of equity would not let a subsequent lender on the land with notice destroy or take place of such defective conveyance ; and if such defective mortgagee had the deeds, the second lender must necessarily have notice, since with- out the deeds a title could not be made out to the second lender. And the bond creditor coming in on the personal security, to whom no notice could be given, and whose personal security did not, in its own nature, require a sight of the deeds, ought not therefore to be in a better condition than a second mortgagee coming in with notice. And if this should be allowed in a court of equity, if there were a de- fective mortgagee or purchaser, though always in possession of the lands, yet if the vendor had any debts, by bond or simple contract, prior in time to such purchase or mortgage, he might, by confessing judgment to such creditor subse- quent to such purchase or mortgage, avoid or postpone his own mortgage or sale. For these reasons equity hath obliged the bond creditor who obtained judgment and extended the mort- gaged land to supply the defect in the mort- gage or purchase, and gives injunctions to put the mortgagee or purchaser into the possession of the land. But if ^. makes a defective mortgage to B., and A. continues in possession, and afterwards gives a bond to O. , with warrant of attorney to confess judgment, and G. enters judgment im- mediately, there it should seem that the bond, warrant, and judgment are to be looked upon 15 226 FOKUM BOMANUM. [Chap. XII. as one act, and that O. had the land originally in view for his security ; and there B. cannot have relief against G. upon the defective con- veyance in a court of equity. 2Ch.cas.i35,i36. Where an agreement relating to lands is not reduced into writing, according to the statute of frauds and perjuries, the court of equity can- not relieve or compel the performance of that agreement, because the statute was made on purpose to prevent those agreements being car- ried into execution where there was no writing. A parol agree- Yet if an agreement be made, though not in ment, if partly ex- . . , , j. i. i -j. j eouted, not with- writing, and the party by whom it was made in tlie statute of -n Xi frauds. receives all or part or the money, equity will compel a specific performance of the whole agreement, because this is put of the statute which designed to defeat such agreements only, no part whereof was carried into execution, and set up merely by parol. For that was the oc- casion of fraud and perjury, that persons used to swear verbal agreements upon others, and by such false oaths charge the parties in equity to perform suit, though the agreements had never been made ; and therefore the mere parol proof of such agreement concerning lands can- not be admitted in a court of equity. But where the price is paid, there it doth not stand upon the parol proof of the agreement only. No parol proof of but upou the cxecutiou of part of the agree- an agreement , . , . , . ^ concerning land mcnt, wliich IS the evidence that the agreement not reduced into t> mitti'd* *" ^^ ''^" ^^^ really made ; and therefore there is the same reason that the plaintiff in equity should have the land for his money as there is that every person should deliver the goods where he hath received the money for them. Chap. XII.] FORUM ROMANUM. 227 But bere it maybe doubtful in some cases what is a proof what sball be a proof of tbe receipt of tbe money. ■■^ ^ 2Ch. Gas. 36. money by tbe defendant. Tbus far seems cer- tain, that if tbe defendant in his answer con- fesses the receipt of the money for the purpose in the bill, or if he denies the money, and it be proved upon him by writing, as by letter un- der bis hand or other written evidence, he shall be obliged specifically to perform tbe whole agreement, because he bath carried part into execution . But if tbe defendant confesses the receipt of the money, but says that he borrowed it from the plaintiff, and that he did not receive it in execution of that agreement, there he turns the proof of the agreement upon the plaintiif, and then it should seem that the plaintiff should prove by some written evidence the receipt of the money by the defendant for the purpose in the bill, or prove the agreement itself by some writing. But if the plaintiff can only prove the agreement for the sale, or the receipt of tbe money in execution of the agreement, merely by parol evidence, this will not be sufficient to set up such agreement by tbe statute, because such parol evidence is ex- cluded by the statute ; because the parol is not applied to the bargain, but to the act of receiving the money, which if proved to be received as pursuant to the bargain, then the act of receiving is a further evidence of the bargain than the parol proof of such bargain only, and tbe proof of the agreement stands upon the act of receiving. But if A. buys lands with the money of B., 2Vent.3ci. 228 FORUM ROMANUM. [Chap. XII. there is a resulting trust to B., arising by oper- ation of law, which the statute doth not extend to ; and if the defendant confesses the receipt of the money for that purpose, or if the plaint- iff can prove it by parol evidence, it is suffi- cient ; for the application of money under a trust makes the lands purchased by the money subject to the trust, and so excepted by the statute. But more of this in the Lex Prcetoria, under their proper heads. LEX PE^TORIA. The Lex Prcetoria contains the rules tliat govern in a court of equity. How this court began and was established is already consid- ered in the Forum Romanum. What are the proper heads of relief remain to be treated of; and they may be reduced to these : I. Specific performances of agreements. TT ■ ^ , ■ / These are treated of to- III. Frauds. > ^, IV. Powers. S S'*^""' V. Wills, executors, administrators, de- vises, and legacies. OF SPECIFIC PERFORMANCES OF AGREEMENTS. At the common law every covenant and agreement was but personal, where there was no proper conveyance to transfer the right of the thing itself, and being only a personal covenant, when it was broken, the covenantee could only recover damages. Thus, if a man covenanted to settle his lands upon marriage, or to convey them for valuable consideration, the covenantee could only recover damages at law for the breach of such covenant, but had no remedy for the settlement of the thing itself. (229) 230 LEX PRiETORIA. This was thought incompetent, because the party who had entered into the covenant was obliged in conscience not only to make com- pensation for the breach, where he could not perform, but also actually to perform where it was in his power so to do; and therefore the court of equity deall with the corrupt con- science of the party, where he refuses to per- form what is in his power. And since a court of equity, where a man bargains to do a thing, in conscience and justice looks upon it as a thing already done and performed, therefore their decree is not only *m personam but ^in rem, and binds the right of the thing itself, so that all persons coming in ^pendente lite, or after a decree, a.re bound by it. And if it were not so, the remedy of a court of equity would go but little further than that of a court of law, for that is *in personam. Therefore, to make the remedy adequate to the mischief, the court of equity does that which a man in honesty and conscience ought to do ; that is, settles the estate itself in pursuance of the covenant. If a man is divorced from his wife for adul- tery, and marries another, and enters into an agreement upon such marriage, a court of equity will specifically perform it, because it is a marriage according to the christian law ; and therefore such agreements as are made upon such marriage ought to be established II Ml foro conscientire. For though such mar- riage be a nullity by the common law, upon political reasons, lest marriages should be dis- * Against the person. f Against the estate. §Pending the suit. y In » court of conscience. LEX PRiETORIA. 231 solved by frequent adulteries, yet, since they are not against the law of God, such agree- ments upon such marriages are not coatrary to natural justice nor *mala in se; and therefore they ought to be established in a court of con- science. And there is a meritorious cause in this agreement, since the woman gives up her person to the man, and likewise her fortune. If an agreement be made before marriage by way of articles^ and afterwards be formally drawn up before marriage by way of settlement, and anything in the original agreement be omit- ted, it is presumed f prima facie to be waived, unless it can be proved to be left out or omitted by fraud or mistake. But if articles be made before marriage, and the marriage takes effect, and afterwards a settlement be made, and any- thing be omitted, there it cannot be presumed to be waived, because that cannot be after mar- riage. If a man by his answer owns to have made croyston v. a complete agreement, though such agreement 2ns; Eq. aW. 10, . .. 1 n ■ .,, p.3; 2Eq.Abv.47, be not in writing, yet the court 01 equity will p. 15, in margin. carry it into execution. For the (a) statute of (a) 29 car. 2, 0.3. frauds and perjuries was designed to hinder fraudulent and surreptitious agreements, and not to vacate bargains that were fairly and hon- estly made. For in these cases the party is bound in a court of conscience not to take ad- vantage of the want of any solemnities, whether imposed 'by common or statute law. But if the defendant insists, in his answer, either that the bargain was fraudulent or not complete, but merely a communication for the terms to be * Evils of themselves, f ■^'' ^''^t. 232 I-EX PRETORIA. further settled, there he may plead the statute, and it shall be allowed. For in the first case, where he acfenowledges the bargain to be com- BawdsD.Amhust, plete and not fraudulent, he ought to waive the fi?p*8'p?6.^ch: benefit of the statute, for no honest man should 402; 2 ch, Eep, j^gjg^ ^jj ^.jjg ^^jj^ ^ solemnities where he has made a fair bargain. But where he insists either that the bargain is not made or fraudu- lently made, there he may insist on the statute. For where the plaintiff in equity does not take security in the legal solemnities of contracting, he is at themercy of the defendant's oath. Only there is this difference : that if the defendant denies the bargain, then the plea must be al- lowed, for the plaintiff can prove nothing but a written bargain, and that appears by his bill he cannot do. But if the defendant allows the bargain to be complete but fraudulent, there the benefit of the plea is to be reserved to the hearing, because the fraud is still *sub judice, and in issue. But if he allowed the bargain to be complete, and does not insist on any fraud, then there can be no danger of perjury, because he himself in his answer has owned the agree- ment, and taken away any necessity of proving it. Limondson v. Szoeed, Gilb. Eq. Rep. 35 ; Pre. Ch. 208, 374; Eq. Abr. 19, p. 3; Vem. 151, 159; 2 Vem. 373. seagoodr.Meaie, If an agreement be by parol, and not signed Ate 49,' p! 29.^ ^'by the parties, or some one lawfully authorized by them, if such agreement be not confessed, as is said, in the answer, it cannot be carried into execution ; but if it be carried into execution by one of the parties, and such execution be accept- * In contest. LEX PR^TOEU. 233 ed of by tlie other, he who accepts it must per- form his part. As if A. sells his estate to B. by parol for one thousand pounds, if ^. accepts the one thousand pounds, or any considerable part of it, he must convey his estate to B., for otherwise it is a fraud to accept the money of B. and not convey it. And it could never be the intent of the statute (which was to hinder bargains from being sworn upon men that they never made) that men should take advantage of not completing bargains which they had made, and which were actually performed to them ; for when there is a performance, the evidence of the bargain does not merely lie upon the words, but upon the fact performed, of which they have reaped the advantage; and it is perfectly unconscionable that the party who has received the advantage of the verbal con- tract should be admitted to say such contract was never made ; for the law must be construed ' according to natural equity, and not to create a fraud; and the person that receives money and does not convey is plainly guilty of a fraud, and therefore must not be permitted to insist that he did not sign, when he has received all the benefit he could have had by such signing, for that were to construe the statute against frauds so as to protect fraud and not suppress it. Leake Y. Maurice, Eq. Abr. 23, p. 20; 2 Ch. Cos. 135. A. sells houses to B. for two thousand pounds, and A. draws up a note of the agree- ment in writing, which B. signs, but A. does not. A- brings his bill against B. to compel him to a specific execution of this agreement. 234 LEX PE^TOEIA. And it was decreed for A., for his drawing up a note of the agreement in his own hand, and procuring B. to sign it on his part, that the signing of B. is not only a signing for himself, but as authorized by J. to close the agreement; and therefore, if B. had come into a court of equity against A., the court would have decreed the agreement against A., and therefore *vice versa. Hatlon v. Gray, Eq. Abr. 21, p. 10; 2 Ghan. Gas. 164. But here it is to be noted that the plaintiff that exhibited his bill upon the foot of performing the bargain on his part ought to show that he has performed all that is to be done on his part, or is ready to do it; for where any part (which he should have performed) is become impossible to be performed at the time of exhibiting his bill, there he can have no specific execution, because he cannot specifically execute on his own part. As in the case of my Lord Feversham, which was on a marriage agreement, whereby he con- tracted to settle the manor of Holrriby on his wife and the heirs of their bodies, and clear it of incumbrances, and settle a separate mainten- ance on his wife, and likewise sell some pen- sions in order to make a further provision for his wife and the issue of that marriage ; and Sir Gtorge Sandys, the father-in-law , agreed to settle three thousand pounds j>er annum on the Lord Feversham for life, remainder to the wife for life, and so to the issue of that marriage. Lord Feversham cleared the manor of Holmhy, settled it accordingly, and settled the separate maintenance, but did not sell the pensions nor * Contrariwise. LEX PRiETORIA. 235 settle the further provisions. The wife died without issue, and the Lord Feversham pre- ferred his bill to have the three thousand pounds per annum settled on him during his life; hut denied, because Lord Feversham was * in statu quo as to all that part of the agree- ment which he had performed, and having not performed the whole, and the other part being now impossible, and no compensation being possible to be adjusted for it, he had no title in equity to have performance of Sir George's part of the agreement, since such performance could not be mutual. But the issue of Lord Rep. Tomp. Feversham might have been relieved because Freeni. 35- skin. 287. in no default. Lord Feversham v. Watson. But if a man has performed so much of his part of the agreement as he is not *in statu quo, and is in no default for not performing the res- idue, there he shall have a specific execution from the other party of the agreement: as if a man has contracted for a portion with the wife, -' and has agreed to settle upon the wife and her ■ issue lands of such a value free from encum- branceS;, and he sells part of his land to disen- cumber, and is going on to disencumber and settle the rest; there, if the wife dies without issue before the settlement be actually made, yet he shall have the portion, because he can- not be *in statu quo, having sold part of his lands, and there was no default in him, since he was going on to disencumber and settle the rest ; therefore the accident of the death of his wife doth not alter his right to his wife's por- tion. Meredith v. Wynne, Eq. Abr. 70, p. 15; ♦ In the same condition. 236 LEX PRETORIA. Gilh. Eq. Rep. TO; Pre. Ch. 312; 2 Vern. 448. If A. covenants and agrees with B. to sell him his land for one thousand pounds, and there be no covenant in the articles on the part oiB. to pay the money, and B. does not sign it, B. can never exhibit his bill for a specific performance, because he is not bound. But if B. had signed the articles, then there must be a covenant tendered' to B. to seal for payment of the money, or there must be a conveyance tendered by A., which he is ready to seal upon payment of the money ; and if in the first case he refuses the covenant, or in the last to pay the money, A. is fairly off the bargain, and may sell to another, because the estate is not to be perpetually under the obligation of that con- tract which B. has refused to complete. But if a third person should take a conveyance with notice of the articles, and without such tender and refusal, he would be liable. But if B. had never signed, then a third person might safely take it, for B. not having signed is under no obligation, and the obligation not being reciprocal, it is a catching bargain ; and B. can- not come into a court of equity for a specific per- formance, but is left merely to a court of law upon his action of covenant. Fraudulent If the agreement be unreasonable, or obtained agreement. t e -t • • by Iraud or circumvention, a court of equity will not carry it into execution, because that were to establish the fraud. Young v. Clarke, Pre. Oh. 538 ; 2 Eq. Abr. 18, p. 9 ; 2 Mod. Gas. 152. And if they should proceed to re- cover damages at law, the court of equity would LEX PRiETORIA. 237 interpose. Hides v. Phillips, Pre. Ch. 575 ; 2 Eq. Ahr. 18, p. 10, 688, p. 6. But on a bill brought by a natural daughter to have a defect- ive conveyance supplied, the court declared show as a volunteer, and would not compel the heir to supply the defect. Seagood v. Meale, Pre. Ch. 560; 2 Eq. Abr. 49, p. 20. So, like^ wise, the bargain ought to be reduced to cer- tainty ; for if a man in consideration of marriage promises by his letter to pay his daughter a fortune, without reducing it to any certainty, a court of equity cannot carry it into specific execution, because nothing is promised. Hall V. Butler, Eq. Abr. 20, p. 7. If a man by articles agrees to sell his estate, and part of the money is paid, and then he dies before the conveyances are perfected, the execu- tor of the vendor prefers his bill against the purchaser, and likewise against the heir of the vendor, to have the conveyance completed, and the residue of the purchase money paid to him: the purchaser is willing to be off his bargain, and lose the money already paid, and the heir likewise desires that the bargain -may not pro- ceed ; yet the court of equity decreed it, because from the time of the bargain the land of the vendor is to be looked on in a court of equity as money, and to belong to his executor, for the vendor by his bargain has turned his land into money. If on any treaty the agreement is not reduced into writing, or proposed to be reduced into writing, or executed in part, there the statute of frauds is in the way ; "but if the agreement was proposed to be reduced into writing, and 'S6S LEX PRETORIA. prevented by fraud or practice, the court of equity will interpose and give relief. 31axioell V. Mountacute, Eq. Ahr. 19, p. 4, 20, p. 5 ; Pre. Oh. 526; Wms. Rep. 618. If there be a woman's portion to be settled on the husband and wife, and the heirs of their two bodies, with a remainder over to the right heirs of the husband, and the husband dies leaving issue, and afterwards the issue dies, the heir of the husband in remainder may come to have an execution of this agreement, and it shall be executed, and the money laid out in lands, of which the wife shall be only tenant for life. Whitioick v. Germin, 2 Vera. 58. If a man grants a rent charge out of a bish- op's lease, and settles it by way of demise and redemise^ so that it is redemised subject to the rent charge, if the grantor agrees for the re- newal of the bishop's lease, a court of equity will compel the grantee to join, the grantor conveying the additional lives in the satne man- ner to the grantee, for the security of the rent charge. And it was the opinion of the court likewise that the grantee might compel the grantor to renew, in case of failure of lives or effluxion of years ; for the grantee of the annu- ity might have a writ of annuity, and thereby continue the payment during his life, if he had not resorted to the lands; and therefore, when he does resort to the lands, he shall have all remedy to make them a security to him during his life, in all events, if it may be obtained. But if the bishop refuses to renew, the court cannot compel him. And quozre whether the court will compel if the bishop refuses on the LEX PRETORIA. 239 common terms ; for if the bjshop refuse^ to renew on the common terms, it is tantamount to an absolute refusal, and the grantee must be contented with the security of the lives in being. If a man agrees by articles under his hand Marriage agree- to convey his wite s lands to Zj., B. may pre- fer his bill against the husband and wife to compel a specific execution of this agreement; and if the wife, upon private examination, con- sents, the court will decree it. But qucere whether the court will decree it if the bill be preferred against the husband only ; because, if the court should compel the husband, the hus- band would compel the wife, who is under his p.ower, and the wife ought not by law to convey by means of any compulsion from her husband. Wheeler v. Neioton, 2 Eq. Abr. 4,4:, p. 5; Pre. CJi. 16. A scrivener lays out the money of ^. on the lands of B. upon which B.'s wife is jointured. The counsel of ^. gives notice to the scrivener of this jointure, and that it should be trans- ferred on other lands, but the scrivener conceals this from A., and tells him he may trust B. as a very honest man, whereupon A. lends his money. And afterwards, upon the death oi B., the jointure appears which the scrivener had purchased in, whereupon the scrivener, to si- lence the clamor of ^., signs and seals an agree- ment to assign such jointure to him, and then, being unwilling to abide by his agreement, files his bill to have up his agreement, and A. files his bill for the specific execution of it. The scrivener's bill was dismissed, and A. was de- , creed to a specific performance. For though 240 LEX Pn^TOEIA. tlie scrivener insisted that he had no considera- tion for assigning his interest, yet since A. had a loss by his means, to wit, by his fraud in con- cealing the jointure from A., and afterwards purchasing it in, which fraud he had agreed to compensate by articles, he ought in good con- science to make good this agreement. King v. f Withers, Pre. Ch. 19. There is a marriage agreement, in which the father of the wife agrees to pay one thoitsand five hundred pounds for the wife's portion, and the husband agrees to add one thousand five hundred pounds more to it, and that both sums should be laid out in lands to the use of the husband for life, remainder to the wife for life, remainder to the issue of that marriage, ' re- mainder to the right heirs of the husband: the husband dies without issue; the wHie's portion remains in the hands of the father-in-law, and the husband makes his right heir his executor, who exhibits his bill against the father-in-law and the wife, and obtained a decree to have the portion secured and paid to him after the death of the wife, and was decreed to pay the interest of the one thousand five hundred pounds which the husband was to add as a provision unto the wife during her life. Knight v. Atkins, Eq. Abr. 274, p. 6; Vern. 20; 2 Ch. Bep. 400. But if the husband settles lands upon the marriage of his ' wife, and agrees to purchase other lands of one hundred pounds per annum to make an addition to the wife's jointure, which is to be settled on the wife for life, re- mainder to the right heirs of the husband: the husband dies, the wife takes out admihis- LEX PRETORIA. 241 ^tration to Wm, and the heir of the hushand exhibits his bill against the wife, to have so much of the personal estate laid out as would purchase land of that value, to be settled on the wife for life, remainder to him in fee. But the bill was dismissed, because this was a covenant only made for the benefit of the wife, which he could relinquish and discharge at pleasure, and therefore the heir of the hus- band could never take advantage of it to wrest the money out of the hands of the wife as ad- ministratrix, to be settled for his benefit. And this is different from the former case, for there the heir and executrix of the husband comes for the wife's portion, to which he was well en- titled, it being an interest vested in the hus- band. But in this case the heir of the hus- band comes against the administratrix of the husband, for the benefit of a covenant which was never intended for his benefit, but for his wife's, which she may relinquish, or choose whether it shall ever be performed ; and it could never be the intention of this agreement to take the money from the representative * quoad the personal estate, and give it to the representative '^ quoad the real. Laughton v. North, Eq. Ahr. 274, p. 9 ; 2 Ch. Gas. 156; 2 Oh. Rep. 271. If there be an agreement, upon marriage, that the money of the wife should be left in the hands of trustees, and the husband to have the interest of it during his life, and the wife during her life, and then to the issue of that marriage, remainder to the heirs of the body *As to. 16 242 LEX PRETORIA, of the wife, remainder to the wife's brother and his heirs, if the wife dies without issue: in case of such express covenant, the brother shall be decreed to have the portion secured to him after the death of the husband. But if the proviso of the deed had been so penned as to leave it to the election of the husband and wife, after marriage, to have the portion laid out to the uses aforesaid, there the brother could not have q, decree for the money after the death of the husband, because the money of the wife be- longs to the husband upon the intermarriage, which the brother could not claim when it was still to be in the election of the husband whether he would vest it in lands or not. Simonds v. Butter, Eq. Abr. 274, p. 7; 2 Fern. 227; Pre. Oh. 23. If the husband, after marriage, without pre- vious articles, makes a provision or settles a jointure on his wife, this is no more than a voluntary conveyance, and will not, therefore, be helped in equity, even against the heir at law or any other volunteer. Fothergil v. Foth- ergil, Eq. Abr. 222, p. 9; 2 Freem. 256. If a man has a bad title at law, he cannot by fraud procure the person who has the good title to convey; for such fraudulent convey- ance is as if there was none at all, and so will be set aside in a court of equity, though for- merly there have been decrees in which such fraudulent agreements have been established upon the merits of the former title. Frank v. Franlc, Ch. Cas. 84 ; Eq. Abr. 24, p. 4. But now a man who comes in upon valuable con- LEX PEiBTORIA. 243 sideration cannot strengthen his title hy pur- chasing in the title of a stranger by fraud. If ^., tenant in tail, agrees with B., tenant in fee, to exchange their lands, and they mu- tually enter into each other's lands, and after- wards B. dies, and the heir of A. enters into the lands of B., he shall be decreed to levy a fine and convey, because he has entered upon the recompense which the father received for such estate tail, which is making himself a party to the original agreement, and therefore he is bound in conscience to execute it. Basse v. Basse, Eq. Ahr. 265, 5. p. 2; Gh. Gas. 171. If a marriage agreement be made by which the hiisband is to be tenant for life, remainder to the issue of that marriage, and the husband dies without executing such agreement by proper conveyances, leaving issue, A. and -B., and ^., to whom the legal estate of the lands descends, makes an agreement upon valuable consideration, as t(3 settle the lands for pay- ment of debts, or upon marriage, not only the issue of A. but likewise of B. shall be bound to perform such agreement^ because A. was mas- ter of the legal estate, and was so far likewise master of the equitable estate that, if marriage articles had been specifically performed, he might have barred his estate tail by the cere- mony of a recovery, and therefore equity looks on him to have a proper dominion of the thing itself; and consequently, when he articles con- cerning such estate, no fine is needful, by reason the marriage articles were not executed; the issue shall be barred by the agreement only, since he that had the dominion over the estate 244 LEX PRETORIA. has disposed of it according to his legal power for valuable consideration, and since the estate was, at the time of such disposal, in such con- dition that no fine or recovery was necessary at law for disposing of it. Nordiffe^. Worsely, Bep. Temp. Finch. 128; Cli. Gas. 234; 3 Cli. Bep. 29; White v. Thornburgh, 2 Vern. T02 ; Gilb. Eq. Bep. 107 ; Pre. Ch. 425 ; 2 Eq. Ahr. 714, p. 2 ; Poioell v. Powell, Eq. Abr. 265, B. p. 3; Pre. Gh. 278; HHIy. Garr, Gh. Gas. 294. Parol agreement. There was a bargain to freight a ship, with- out any certainty in the charter-party of the value of the freight per ton^ and the merchant - freights the ship with box-wood, which pays but forty shillings, and not with cotton, that pays five pounds per ton. The master would have proved a parol agreement to freight it with cotton, and the merchant would have ex- cused the not freighting with cotton, because the cotton was destroyed that year by the locusts. The court thought that the master not having ascertained his freight in the agree- ment, that he ran the risk of tbe voyage to receive freight according to the usual rates paid for such goods wherewith the ship was laden, and that it was a dangerous thing to add to the written agreement by any words that might pass between the parties at the time of making the agreement, in a case where there appeared to be no fraud in leaving out any thing in the charter-party that was intend- ed by the parties. For where there is a written agreement, the whole sense of the parties is pre- sumed to be comprised therein, and all discourse tending to introduce such agreement goes for LEX PRETORIA. 245 nothing. FootY. Solway, 2 Cli. Gas. 142. But qucere whether the merchant, hy the excuse, does not admit the agreement as set up hy the master. If a decree he had in a court of equity, an execution of it shall not stay on aifidavits of a parol agreement, but the party must hring his original bill, that the other party may be let into the benefit of his defense ; for to suspend a decree upon motion is the same as to set one side upon motion. And some have said you can- not set forth a parol agreement, in an answer to a bill to revive a decree, in order to stop it ; *sedqucere. Wakelinv. Walthal,2 01i. Gas. 8. A man buys a copy-hold, and to avoid the charge of a new fine upon the descent of it to his son, surrenders it to the use of himself for life, remainder to his son in fee, and then, upon the marriage of his son, to induce the match, tells the lady's relations that he had provided for the son by the copy-hold, and then marriage articles were made, whereby leasehold lands were settled on the son and the issue of that marriage. The father afterwards marries a second wife, and agrees to settle the copy-hold on the wife and the issue of that marriage. The wife, hy her ■\procliem amy, brings her bill against her husband and the son, to have this copy-hold settled, but dismissed as to the son ; for the copy-hold being settled by a proper conveyance, and being made a reason to induce the match with the son, became a valuable set- tlement, and to settle it again was but %actwm * But quere. t^^r next friend. § To do what had already been done. 246 LEX PR^TOKIA. agere, and so the comprehending it in the other settlement was improper, since it could not pass by it, but by copy only. And here the son's wife did not set up her rest in the written agree- ment, because the match was likewise founded on the copy of court roll whereby the estate was passed to him before. Kirh v. Gierke, Pre. Oh. 2Y5. A settlement was made upon marriage to thd husband for life, remainder to the heirs of the body of the husband begotten on the wife, and the husband covenants not to suffer a re- covery, and has two daughters by the match, one of whom dies, and the other he marries and gives a fortune to, and then he suffers a recov- ery of his estate, and devises it away from his daughter, and the daughter with her husband comes into chancery to have a specific perform- ance against the devise, but were dismissed; because, by the marriage settlement, which was executed before marriage, the estate was settled in such a manner as gave the father a power to destroy it ; and being settled with a personal covenant not to make use of that power, the daughter has remedy only upon the person to have reparation in damages, if the covenant be broken. For they cannot prevail in a court of equity to set aside the recovery and uses, for that would be to alter the power which the father had by the original settlement over the estate, which, instead of specifically executing an agreement, would alter it. Collins v. Plumr- mer, 2 Vern. 635; Wms. Rep. 104. This case was observed by my Lord Cowper to be different from articles before marriage ; mam- tenance. LEX PRETORIA. 247 for if articles had been made in that manner, a court of equity would have executed such articles by settling it upon the first and every other son, so as to prevent the husband's power over the estate. Ibid. If a wife has a separate maintenance, and con- separate tracts to pay the debts of her husband, she shall be bound to execute such contract out of her separate maintenance; and if the husband be joined for conformity, process shall run against the wife without him. Bell v. Hyde and Ms tuife, Eq. Abr. 65, p. 8 ; Pre. Gh. 328 ; Gilb. Eq. Rep. 83 ; 3 Wms. Rep. 38. If articles be made between husband and wife before marriage, in which there is an estate set- tled on the part of the husband, and likewise another on the part of the wife, in which the limitations are that it shall be the husband's for life, remainder to the wife for life, remainder to the heirs of the body of the wife by the hus- band to be begotten : there, if they come into a court of equity for a specific execution of these articles, the court will provide not only for th6 sons of that marriage by proper limitations, but likewise for the daughters. But if they should execute the articles before marriage, by a limit- ation to the husband and wife for life, remain- der to the first and every other son in tail, with a remainder to the heirs of the body of the wife by the husband to be begotten, this would be a good execution of the articles before marriage, because it shall be presumed that that part of the agreement relating to the daughters is re- linquished, and the last intention of the parties was that both should have the joint dominion 248 LEX PRETORIA. i over the estate during their lives, in case of^ fail- ure of issue male. But if such an agreement was thus executed after marriage, that would not be a good execution, hecause, where land is settled on both sides, and the articles have made both estates a provision for the children, they cannot alter it after marriage. And if they should settle the lands to the first and every other son,' with a remainder to the heirs of the body of the wife by the husband to be begotten, such a settlement after marriage would be bad, because they are reciprocal purchasers of both estates, not only for themselves but for their issue. But where a wife before marriage en- tered into articles as to her own estate, to settle it to the husband for life, then to herself for life, remainder to the heirs of her body by her hus- band to be begotten, and the husband after mar- riage consents to settle it to the first and every other son in tail, with a remainder to the heirs of his wife by him to be begotten, and had issue a daughter, and died, and his wife married a second husband, and then by fine and recovery, together with her husband, made a new settle- ment of her estate, and upon this the daughter exhibited her bill to have an execution of the articles; the bill was dismissed, because the husband, who was *sui juris, might relinquish after the marriage more dominion to the wife over her estate than he had stipulated for in the marriage articles, and the wife might ac- cept it, having received nothing in lieu thereof by an equivalent purchase of an estate from the husband ; and such settlement must be looked * His own master. LEX PRETORIA. 249 upon as an equitable execution of the agree- ment, otherwise the wife would disinherit her son by the second husband in favor of a daugh- ter by the first, from whom she received no estate at all. Burton v. Hastings, Eq. Ahr. 393, p. 4; Gilh. Eq. Rep. 113; 2 Mod. Gas. 131. An husband gives a bond upon his marriage, conditioned to settle his copy-hold estate to the use of himself for life, remainder to the wife for life, remainder to the heirs of their two bodies, with remainder to the heirs of the husband ; and a bill is brought to compel a performance: a court of equity would not leave them to the penalty of the bond, but decreed a settlement to the use of the husband for life, remainder to the wife for life, remainder to their first and every other son in tail general, remainder to the daughters of their two bodies to be begotten in tail general. Nandike v. Wilkes, Eq. Ahr. 393, p. 5; Gilh. Eq. Rep. 114. For though they anciently thought that where there was a bond to perform any thing, the obligor was obliged to the alternative, either to per- form the thing or pay the money, and there- fore that the obligee set up his rest in the penalty. Yet now they do not take it as an agreement in the alternative, in which the ob- ligor may either pay the money or perform ; but they understand the penalty only as an enforcement of the agreement, and as giving a remedy at law for a certain sum, instead of uncertain damages, and the party by his pro- viding his remedy at law shall not t^ke away his remedy in equity ; Bagg v. Foster, Ch. Gas. 188; 3 Gh. Rep. 50; which is contrary to the 250 LEX PE-ffiTOKIA. modern resolution in Nandike v. Wilkes, before mentioned. A man covenants to convey his copy-hold to his bastard child, and to make further assur- ance ; and he does admit his bastard child, but without a surrender, whereby the copy- hold does not legally pass, and dies; and the natural daughter brings her bill against the heir at law to supply the defective conveyance, because there being no surrender, the admit- tance was void; but the court would not do it, because the daughter was a mere stranger, being *nuUius filia, and not taken notice of by the law as a daughter, nor the father under any obligation to provide for her as a child, since that arises from the mutual contract of cohabitation during life, which is marriage; and there being no consideration for such con- veyance, it is merely voluntary ; and in such cases a court of equity has no foundation to give remedy against the heir. Fursaker v. Bohinson, Eq. Abr. 123, p. 9 ; Pre. Ch. 475 ; Gilb. Eq. Rep. 139 ; Fairheard v. Bowers, Eq. Abr. 143, p. 15, 152, p. 4; 2 Vern. 202; Pre. Ch. 17. statute of frauds, If upou a marriage treaty the counsel takes 29Car. 2,0. 3. , ^ ,, , ^ , ^ , down from the mouth ot the father the mar- riage agreement, and the father dies next day^ before any agreement is perfected, and the young couple marry, the court will never de- cree the heir or executor of the father to exe- cute the agreement, because such agreement is but ■\fieri, and not completed, and therefore it might be altered or changed till the parties *No one's daughter. j-To be done. LEX PRETORIA. 251 come to sign and seal ; for this instruction of counsel is but a preparation ; and upon looking into the title of the estate to be settled, some- thing may arise that may alter the whole or break off the agreement; and prudent men read even the drafts before they are engrossed, which are subject to alteration and amend- ment. But if the young couple had married by the consent of the parents before such en- grossment, such agreement would have bound, and would have amounted in a court of equity to an authority to the counsel to write down such agreement, because the young couple en- ter into the match upon the father's faith to perform, but otherwise if they had married without the consent of the father while such agreement was *in fieri. Bawd v. Amhurst, Eq. Abr. 20, p. 6; 21, p. 8; Pre. Oh. 402. Articles of marriage were made whereby the husband was to leave two thousand pounds to his wife at his death, and to settle on her a rent charge of one hundred pounds per annum for life out of lands to be purchased. The husband having made no purchase nor settlement of the one hundred pounds, makes his will, and therein taking notice of the articles, devises two thou- sand pounds to his wife, and the residue of his personal estate to trustees, for the purchase of lands to be settled for securing the one hun- dred pounds to his wife during her life, and subject thereto to the use of his nephew in tail general, with several remainders over, and dies ; and the nephew brings his bill for an account of the residue of the personal estate, and that it may be paid to him on his giving security * To be done. 252 LEX PRETORIA. to answer the one hundred pounds per annum to the wife, and decreed accordingly, and the plaintiff entered into a recognizance to perform the decree; for they looked upon the person who was to be the tenant in tail upon the pur- chase to have the dominion of the estate, and so to be entitled to the money wherewith the purchase was to be made, at his election. And this money is to be paid to the wife without deduction for taxes, because the tenant in tail having made an election to take it as a personal estate, cannot leave taxes on it as if it were real, the law having charged the real estate only with taxes ; and the wife was allowed in this case to have interest for such part of her an- nuity as was in arrear from the time that the arrear incurred, because it was secured by re- cognizance, which penal security always im- ports that the party is to pay at the time, or allow interest. Contrary opinion as to the money's being paid to the tenant in tail. Legate V. Sewell, Pre. Oh. 548 ; Eq. Abr. 389, 394, p. 1 ; 2 Vern. 551 , Gilh. Eq. Bep. 145 ; Peer. Will. 87, 90, 91. If quarrels happen between husband and wife, and the wife libels in court christian for a separation and alimony, and to quiet this suit the husband enters into an agreement with a third person to pay the wife so much a year by way of a separate maintenance ; though a court of equity will not decree alimony, because it belongs to the jurisdiction of the ecclesiastical court to inquire into family secrets, yet the court will decree a specific execution of this agreement of the husband, because he ought LEX PKjETORIA. 253 in conscience to perform his agreement, and no other court has a proper jurisdiction to decree such performance. Angler v. Angier, Gilb. Eq. Rep. 152; Pre. Ch. 496. II. TRUSTS AND PORTIONS. Trusts are the original creatures of the court of chancery, and were as ancient as the court itself, on the English side; and to remedy breaches of trust was the first reason of the in- stitution of that court. For from the time of the statute of mortmain ecclesiastical persons used to take lands in trust for themselves, and civil persons were tenants of the estate, and lia- ble to the feudal duties. And though this in the first institution answered, yet afterwards, when the heirs came in by a long course of descent, they thought it hard to answer the feudal duties, and yet to be accountable to the church for the profits. This the rules of the common law would not oblige them to, and therefore it was necessary that a court should be instituted to deal with the corrupt con- science of the party, if he did not answer the trust. The court was complained of in its original ; but afterwards, when the wars oi Lancaster and York came on, the laity also found it necessary to put their lands into the hands of trustees, 254 l-EX PEiETORIA. that they might not forfeit upon those changes of times ; and from thence the court of chan- cery intermeddled and managed trusts as their own creature, and from thence they came into those rules that have been settled in the court of chancery touching alienations. So that if a man had aliened without a valuable considera- tion, there was a resulting trust to the feoffor that always run with the lands into whatever hands they came without a valuable considera- tion; or if there was a valuable consideration, yet the trust run with the lands if the feoffee came in with notice of such trust. This was thought so inconvenient to feudal tenures, that the 27th of H. 8, c. 10, was an endeavor to ex- ecute the freehold in him that had the trust. But they soon fell into a new manner of con- veyancing, whereby those trusts were revived, and again managed as creatures of the court of chancery ; for persons could not settle their estates to themselves for life, with remainder to their first and other sons, with terms created for younger children's portions, without declar- ing the trusts of such terms. And from hence they came to a resolution, that where an estate was given to A. and his heirs, to the use of A. and his heirs, in trust for B. , the first use was executed, and the trust remained in B. , as before the statute ; for the common law could not execute the second trust, but rejected it as void and repugnant to the first use. But the court of chancery considered A. as trustee for B., and therefore A. was bound in conscience to perform such trust, for the chancery considered that as the intent of LEX PRETORIA. 255 that conveyance, though the common law re- jected it as repugnant and void. Simpson v. Turner, Eq. Abr. 220, p. 1, 383, in note {A;) Treat. Eq. 54. There is a very modern resolution, that in Broughtonu. J? •!! 1 1 • 1 , , LangTey, 2 Salk. case 01 a will where a man devised an estate to bvq; J. . . .1 • , , . , . , Lutw. 814; Holt, trustees, to the intent to permits, to receive the 'os; Burohet». _OiT- ■,.,.„., . , , Durdant, 2 Vern. pronts during his life, with a proviso that A. 3'2. seeEq Abi-. . 1 . . 383, p. 3, where might make a lointure to his wife, and after- '■i^'^oas'' i^ held -, , not to be law. wards that the trustees should stand seized to the use of the heirs of the hody of ^. .■ that this was an estate tail executed by the statute, he- cause trusts and uses are all one, and here is no double use to be executed, and the power of making the jointure might arise under the will, notwithstanding the estate tail was executed in A. Hence also it came to pass that all trusts which could not be executed by the statute re- mained under the disposition of the court of chancery, and therefore the common manner of settlement was to the first and every other son, with trustees to support contingent remainders ; and such trustees had the right of entry, in or- der to preserve such contingent remainders till they came in esse; for where there were not such trustees, according to the resolution of Chud- leigh's case, Co. Rep. 120, Poph. 70 ; Jenk. 276, 309; 2 Danv. 177, p. 2; 3 Danv. 183, p. 2; 225, p. 7, if the father had aliened, it destroyed the contingent remainder, because it could not vest at the determination of the particular es- tate, and therefore the trustees to support con- tingent remainders were interposed ; that if they concurred in the alienation of the tenant for life, 256 LEX PE^TOKIA. Pie V. George, Bq. it was a breach of trust, and if the alienation 2Saik. 680;"'' ' was with notice, the alienee was subject to the Peer. Will. 128. trust ; if without notice, then such trustees were liable to make compensation out of their own estates. And now also we are to consider what reso- lutions have been upon the trusts of terms in such marriage settlements. TRUSTS OF TERMS IN MARRIAGE SETTLEMENTS. Lord Teviot «. A man Settles the manor oiSale to the use of Pre.W^sTa* Eq. himself for life, and after to trustees for twenty- one years, to commence from his death, and then to his son in tail, with remainder to his own right heirs, and the trust of the term was, to raise five thousand pounds, two thousand pounds thereof to his eldest daughter at her age of eighteen, or day of marriage, and the other three thousand pounds to be equally divided among his younger children at their respective ages of eighteen, or day of marriage. The son dies without issue, and then the father, having issue four daugh- ters, makes his will, and thereby devises the manor of Sale to his wife for life, in augmenta- tion of her jointure, remainder to his four daughters as his heirs at law, and provides that the manor shall not be charged in the hands of his wife with any portions, then he dies ; and his eldest daughter having married, brought her bill against the wife, her three sis- ters and their husbands, and the trustees of the term, to have the two thousand pounds raised and paid to her and her husband; and decreed that she must have one thousand pounds more than the other sisters; and if the three sisters LEX PRETORIA. 257 did not agree to pay three fourth parts of that one thousand pounds out of their shares of the landj the trustees should raise it, and the mother to be reimbursed out of the inheritance ; that her estate for life should not be damnified in the matter, because the term was yet standing out in the trustees to raise the money, and there- fore was not merged at law by the devise of the inheritance to the daughters, and there was no equitable merger of the term by the devise of the inheritance to them, because the benefit of the inheritance was devised equally to them, without expression of the intent of the testator to alter or change the precedent trusts of the term ; but, on the contrary, the testator takes notice of it as a subsisting term, because by his will he provides that it should not be charged with portions in the wife's time ; and therefore, since by that trust the eldest sister had the ad- vantage of one thousand pounds above the rest, »it was just that the term should stand in a court of equity to raise that sum, and if that preju- diced the interest of the mother, she ought to be reimbursed out of the inheritance. But where an estate is limited in a marriage pawiet v. Pawiet, .,,.,. ^ ., Eg. Abr. 207, p. 1; settlement to the trustees and their heirs, to the 2 Vent. aoo; 2 . , . . ,. , 1 Chan. Rep. 286; use of them and their heirs m trust tor the hus- vern. 204, 321. band for life, remainder to the wife for life for her jointure, with a power to the trustees to raise one thousand pounds for a daughter, if but one, and two thousand pounds if more than one, remainder in trust for the first and every other son in tail male, with remainder to the right heirs of the husband, the husband dies, leaving issue a son and daughter, the son dies, 17 258 LEX PEiETORIA. and then afterwards the daughter dies, and the mother took out administration to the daugh- ter, and the estate descended to a remote rela- tion : there it was agreed that the descent of the fee simple merged the power, which was only projected for her benefit before the fee was vested in her ; and this was as much a merger in a court of equity as if the fee simple had descended upon a term for years. But if the daughter had died first^ so as there had been no merger by the de- scent of the fee, then the mother would have been entitled as administratrix, because the money was vested in her, and there would be no descent of the inheritance to merge that power whereby the money was to have been raised. Rules of merger go that-the rulcs touchius; merger are, that of terms. _ o o J if a man has the same interest, and absolute do- minion and property in the whole inheritance, as he has in the term or power for raising money out of the inheritance, there it must merge, for a man cannot have power to raise money for* my benefit out of that which is mine. But if there beany difference between the two interests, or any other person intermediate, then there . can be no merger ; for if there be any merger in the first case, it will change the intent of the conveyance ; and in the other case there being an intermediate estate, there is no merger at law, no more than there is in a court of equity in the case of a trust. Brown v. Gibbs, 2 A man upou the marriage of his son settles Eq. Abr.aSO, p. 2; ° rreem ■2°33' " l^uds to the usc of huuself for life, then to trus- tees for the term of ninety-nine years, then to the son in tail general, with remainder over, and the term is to raise two hundred pounds LEX PRiETORIA. 269 apiece for the daughters of that marriage ; the marriage takes effect ; the father and son die, the son leaving issue two daughters, who were entitled to the remainder in tail ; and the ques- tion was, whether the term should stand in their mother's way to prevent her dower; and decreed that it should, unless the mother would pay the two hundred pounds apiece to the daughters to discharge it, because here like- wise there is no legal merger of the term, and therefore the dower is subject to the term and the trust of it, such term and the trust of it being precedent to the marriage, and therefore the wife must disencumber the estate from this charge in that proportion that her interest as doweress bears to the inheritance ; that is to say, as a third of a third ; that is, as one sixth bears to the whole; and so she ought to pay sixty-six pounds thirteen shillings and four- pence. Eives V. Rives, 2 Eq, Abr. 223, p. 2. If the husband seized of lands in fee, to dis- Terms to prevent appoint the wife of dower, without notice to the wife, carves out a term, a^d then marries and dies, the heir shall never set up this term against the wife, because it is fraudulent in the * creation, and it was contrary to conscience to disappoint the wife by such malpractice. If a man jjurchase an estate, and assigns a Hardress, 489. term to protect it against mesne incumbrances, and afterwards marries and dies, it seems that a court of equity will not permit the heir to set up this term against the wife, though it was not fraudulent in its creation, because the design of the term being only to protect the inheritance, it is against conscience to set up such a term 260 LEX PRiETOEIA. contrary to the design of its creation ; and the heir is considered as a trustee to assign dower to the wife, and to Land to her the legal pro- vision, and therefore should not set up this interest against it. But if in such case the husband had aliened the inheritance, and assigned such term to a trustee to protect the inheritance, if the pur- chaser paid a price, though he had notice of the marriage, he may set up this term against the wife, because she having married the hus- band without any jointure or provision by con- tract out of the estate, the wife puts herself totally into the power of the husband, and con- sequently she was liable to all the legal power the husband had over the estate ; and therefore, when he disposed,' as by law he might, she can never claim it afterwards, because she by her ' imprudent marriage submitted herself to such power of disposal. And this was compared to the original cases in equity, that a woman was not dowable of a trust in fee, because the seizin was in another ;^so that she ought to provide by a contract to have a subsistence out of it, though I am apt to think such original constructions came from the ecclesiastical notion that such estates should be entirely free, that they might be disposed of to pious uses. And so it seems the distinction is at this day, that if the hus- band seized in fee, just before the marriage, should put the legal estate into the hands of trustees to disappoint the wife of her dower, such a conveyance would be reckoned fraudu- lent, because that conveyance was made with an ill conscience and an evil intent, in order to LEX PRETORIA. 261 deprive the wife of the provision made for her by the common law. But if the husband was possessed of a trust estate by descent or purchase, and should after- wards marry and die, the chancery at this day would never endow the wife of this estate, because the wife is not endowed at the common law. But where the husband is seized of the freehold, (and consequently the whole trust es- tate being in the husband's power at the time of the marriage,) the court of equity could not take it out of him, unless the wife had con- tracted for such a provision. Bothomley v. Fairfax, Eq. Abr. 144, p. 19, 217, p. 2 ; Pre. Ch. 336. If a man limits a term to raise younger children's portions, to be paid at the age of twenty-one years, or day of marriage, and, there are younger children born, and they die before twenty-one, or day of marriage, the portions shall sink for the benefit of the persons who are to take the remainder by the settlement, because the intention of the settlement is, that the eldest sons who are in the remainder by such settlements should take it in the most beneficial manner that may be, where such provisions are not necessary (Lord Rivers v. Lord Darly, Eq. Abr. 268, p. 7; 2 Vern. 72) to be raised; and such provisions are not neces- sary to be raised when the child dies who is to be provided for ; and this is following the inten- sfapieton v. , , .,1 , -1 1 ii , Cheale, Eq. Abr. tion of the settlement as near as possible, that 295, p. 4; 2 vem. „ , „ ., , ■ T 1 x- 873; «ilb. Eq. all the parts of the family may be provided tor Rep.76; Prech. out of the estate in the best manner. Lord Pawlet's case, 2 Vent. 366; 2 Freem. 93; Eq. 262 LEX PK^TOKIA. Abr. 267, p. 1 ; Vem. 204, 321 ; 2 Chan. Bep. 286. So it is where a term is limited after the decease of the father to pay younger children's fortunes within one year after the commence- ment of the term, and interest to them in the meantime for their maintenance: there, if one of the children dies within the year, her fortune shall sink for the benefit of the heir at law, because this also is not to be raised by the in- tention of the settlement till the time therein limited. TourTiayv. Tournay, Pre. Ch. 290; 2 Eq. Abr. 654, p. 6. See Treat, of Bq. And there is a difference between this and note (a;) Dyer, 69; the construction of legacies. For if one hun- went'w. ok dred pounds had been devised to a man, paya- Exeo.347;Swinb. ^, . „ ,. . /,, . 311,312; 2 vern. fcle at liis Egc 01 twcuty-onc years, this is *aebi- 92, «6, 608, C17 ; 2 . i i i 7 • /• Vent. 366, 367. tum ill prceseuti, though jsolvcnaum in futuro, and therefore, if the legatee dies before twenty- one, it shall go to his executor or administra- tor, but otherwise it is in a personal estate if the legacy had been bequeathed at twenty-one. The reason of this difference is, because the personal estate is a ^fidei commissum, and the executor a \\Jidei commissar ins, and therefore he is only to dispose of the personal estate as the testator has appointed ; and therefore, if the legatee dies, the interest of the legacy is not to sink for the benefit of the trustee, but to go to the representative of the cestui que trust to whom the benefit of it is bequeathed ; and the chan- cery follows the practice of the spiritual court, which had the original jurisdiction of legacies. * Due immediately. f To be paid hereafter. ? Trust. 11 Trustee. LEX PRiBTORIA. 263 • But if tlie devise were to tlie legatee at twenty- one, there, if he dies before twenty-one, it must sink into the personal estate, because only sev- ered from it in behalf of a legatee of twenty- one years old, and therefore cannot go to the representative of the person who never attaiiied that age. So if a portion were devised out of lands to ^. , 2 vent. am, 367. to be paid at his age of twenty-one, if A. dies before that age, yet the portion shall not sink for the benefit of the heir, but shall be con- strued as a legacy, and not as a trust, because the heir can pray in aid of the personal estate to exonerate the Jands ; and therefore this be- quest is construed as a legacy, since it first bot- toms on the personal estate, and is only to be paid out of the lands in all events. Globberie's case, Uq. Abr. 294, pp. 1, 2 ; 2 Vent. 342 ; 2 Ch. Gas. 155 ; 2 Nels. Ch. Rep. 195 ; 2 Eq. Abr. 539, p. 1 ; 2 Freem. 24. But if a man devises particular lands to a stranger, and a legacy out of them, there the stranger shall not pray in aid of the personal estate as the *hceres natus or ^-liwres f actus of the whole inheritance should; yet here such portion to be paid at twenty-one shall be taken as %debitum in prcesenti, though \\solvendum in futuro, because the stranger is but XJidei com- missarius quoad the profits of that part of the real estate which are devised from him. Gower V. Mead, Pre. Gh. 2 ; BlUot v. UUiot, Eq. Abr. 381, p. 6 ; 2 Gh. Gas. 23 ; Scroop v. Scroop, Eq. Abr. 381, p. 6; G7i. Gas. 27; 2 Freem. 171; * Heir born so. f Heir made so. ? Due immediately. II To be paid hereafter. J A trustee as to. 264 LEX PEiETORIA. • Ehrand v. Dancer, Eq. Ahr. 382, p. 11 ; ICli. Gas. 26; Grey v. Grey, Eq. Ahr. 270, p. 9, 381, p. 6; Gh. Gas. 296; Rep. Temp. Finch. 338. Lord Rivers d. ' If in a marriage settlement there be a term Lord Darby, Eq. , . i i i t • £_ Abr. 268,p. 7; 2 to raise one hundred pounds apiece ror younger children, and there he no time limited for the payment, there it is due and payable to such children as soon as ever they are born ; and therefore, if they die before twenty-one, it shall go to their executors or administrators, because if it had been raised immediately, the money would have gone to their executors or admin- istrators ; and where it ought to have been raised immediately, it is lookad upon in a court of equity according to the rule of the civil law to be raised, for *qui liabet remedium ad rem, ipsam, rem videtur habere. Purchase made Where a father purchaseth any lands during thennmoofthe the minority of the child, in the name of the Elliot i;. Elliot, child, without a declaration of trust in the, Eq. Abr. 381, P-C; , , , , 2C!h. Gas. 23. deed, and tabes the profits during the minor- ity, such purchase is an advancement for the child, because the father is bound to provide for him, and his purchasing in his name shall be construed in a court of equity as fulfilling that obligation, and the taking the profits dur- ing the minority only as guardian to his son. Mumma v. Mumma, Eq. Abr. 382, p. 8; 2 Vern. 19. But if the father purchases in the name of his son who is of full age, which by our law is an emancipation out of the power of the father, there, if the father takes the profits or * He who has remedy for a thing is looked upou to have the thing itself. LEX PEiETOKIA. 265 lets leases, or acts as the owner of the estate, the son is a trustee for the father, because there is the same resulting trust as if the son were a stranger, where the father acts as owner of the estate, since it was purchased with his money. But if the father had let the son continue the possession from the time of the purchase, without acting as owner, there it is an advance- ment, because the legal interest being in the son, and the father permitting him to act as owner of the estate from the time of the pur- chase, does as much declare the trust for the advancement of the son as if it had been declared in express words in the deed. If the father dies, leaving the children in the guardianship of the grandfather, the same rule obtains. In the case oi Elliot v. Elliot, there is a dis- tinction taken between a purchase in the name of a stranger and of a son. In the former, the trusts result to him who paid the money, and he may declare the trusts at any time. But in the case of the son, the consideration of blood raises an use at common law, and therefore the trusts must be declared upon the purchase, or afterwards the father shall not be received to do it. Agreed that if the father at the time of the purchase really intended it for a provision, no subsequent declaration of his could alter it, and the circumstances must govern. Another difference is taken between a pur- chase in the name of a son and of a daughter ; for though sons are often provided for by set- tlement of lands, yet daughters seldom are, therefore the presumption not so strong. 266 LBX PRETORIA. A purchase in the nephew's name is in the name of a stranger, and no difference between a purchase taken in another's name or a con- veyance made to another. If a man purchases a copy-hold with his own money to himself, his wife, and his daughters, and their heirs, this is an advancement for the wife and his daughters; but if this be after marriage, and he surrenders the copy-hold for the security of money, such mortgagee is enti- tled, notwithstanding the settlement; though the commissioners seem to have decreed the contrary, which decree cannot be allowed un- less the purchase was made in pursuance of articles before marriage, or as a settlement upon the daughter on her marriage, for other- wise it is only a conveyance for natural affec- tion, which hinders any resulting trust to the ancestor, but does not hinder the carrying it over to a purchaser. (a) Corbet v. (<^) I^ ^^ ^ marriage settlement the estate be i^ofEq'AtahsT, limited to the husband for life, and to the wife MsVs^chfEep^'"'' for life, the remainder to trustees for five hun- dred years, to raise younger children's portions, to be paid to them at their age of eighteen years, or day of marriage, remainder to the first and every other son in tail male, with Reversion in any remainders ovcr : there, if any younger chil- soi"d ™iY^ the drcu attain to the age of eighteen in the life of the father and mother, they are entitled to have their portions raised by the sale of this term in reversion, because the term is an in- terest vested in the trustees, which they can sell ; and therefore, by the words of the trust, they may be compelled to sell it, for the father LEX PRETORIA. 267 has put such term out of his power during his life, where he has vested it in another ; and if fathers will be so indiscreet as to vest such power in trustees by their marriage agreement that other persons shall raise out of their estate portions for their children, they must be con- tent to abide by it; for when the fortune is made payable at the age of eighteen, or day of marriage, it does not appear to be the intent of the trust that the children should stay any longer; therefore the court will decree such portions to be raised immediately. If an estate were limited in the marriage settlement to the husband for life, then to the wife for life, then to trustees for five hundred years, to raise portions for younger daughters, payable to them at the age of eighteen, or day of marriage: if the father dies without issue male begotten on the body of his wife, the wife dies leaving daughters only, who attained their age of eighteen, and preferred their bill in their father's lifetime for their portions, and had them decreed to them by sale of the term, be- cause after the death of the wife the provision is not contingent but becomes absolute ; for the only contingent part of the proviso is whether the husband shall die without issue male from that wife, and not whether he shall die or not, for that is certain; and the wife being dead, there can be no issue male from her, and there- fore, in all events, the portions are to be raised ; and this the rather because it does not clog the fortune of the eldest son, but he in the remote remainder, for whom less regard is presumed to 268 LEX PBiETORIA. be had than for the issue of that marriage which is to be provided for out of the estate. So it is if the term itself were limited to trus- tees, in case the husband dies without issue on the body of the wife ; for the contingent part of the proviso falls off upon the death of the wife, and so the terra vests in the trustees. But they never let the trustees sell or mortgage the reversionary term for maintenance. Lady Pierpoint v. Lord Cheney, Pre. Oh. 503 ; Peer. Will 488; 2 Eq. Ahr. 642, p.' 10. Corbet e. Maid- But if there be a marriage settlement, in wel, Eq. Abr. 337, , . , , .,..1,111 t ,■ p. 6; 2 vern. 640, which the estate is limited to the husband for 666; 3 Chan. Rep. 130; saik. 159. iife^ remainder to the wife for life, remainder to trustees for five hundred years, for raising two thousand pounds for daughters, remainder to the heirs male of that marriage, and if the husband dies without male issue of that mar- riage, then such sum to be paid to such daughters as should be unmarried and unprovided for upon the death of their father, at their age of eighteen, or day of marriage, and the wife dies leaving issue daughters only: here, since the limita- tion of the trust of that term is for daughters unprovided for at the death of their father, the portion shall not be raised during his life, be- cause this depends upon an event which can never be seen whether it will happen during his life ; that is, whether he will provide for his daughters or not ; and therefore the contingencj does not fall off during the life of the father, as it did in the former case. Attorney General If a father limits or dcvises portions to his Abr,3uT,p!2°'pre; daughters or younger children, payable at their ch.337. ° ,. „.° ^ ' ^ •' respective ages ot tjventy-one years, or any other LEX PRiETORIA. ^^ 269 certain time, without making any other provi- sion for their maintenance in the meantime, and dies : in this case they shall have interest for their portions from his death till paid, because the father, if he had lived, was obliged by the law of Grod and nature to have provided for them. But if such portions had been provided in such manner by a stranger, then they should not have carried interest in the meantime for the children's maintenance, because it was mere bounty in the stranger, and he was under no such obligation as the father to provide for them, and therefore his provision shall be car- ried no further than he has appointed it. If a woman has a fortune left her, and she Moore ». Eicanit, , . ... , Pie. Ch.22; 2Eq. marries during minority, the trustees who are Abr. si, p. i; 47», to raise such fortune, or the executor who by will is to pay it as a legacy, may come and in- sist to have the fortune settled^ not only against the husband himself, but even against the cred- itors of the husband, if he has assigned such fortune over for the payment of his debts, be- cause the King is an universal guardian to infants, and ought in the court of chancery to take care of their fortunes. And though by the ecclesiastical law she is at age to marry, yet by the temporal law she cannot dispose of her fortune, and therefore the court will make such disposition of the fortune of the ward as may be most beneficial for her. But if she was at fijU age at the time of her marriage, then she was out of the care of the court ; and since she might dispose of "her person and fortune, if such fortune was assigned to the creditors of the hus- band, they may prefer their bill against the 270 LEX PRETORIA. trustees or executors to have the fortune, and accordingly it has been decreed. Baion and feme. As to the interest between husband and wife, the rules of equity generally follow the rules of law ; and therefore, where an hushand married a lunatic who was under the care of the court, without the leave of the court, which marriage was sentenced to be good in the spiritual court, though the court committed him for his con- tempt, and ordered him to make a settlement equal to the wife's fortune, which he did not, but died in contempt, and his wife died soon after without issue, the personal estate, as jew- els and money, which were in the custody of the court, were decreed to the administrator of the husband, because it belonged to him by law. For though the court of equity would so far take care of the lunatic who was under the guardian- ship of the court that the husband should make a settlement equal to her fortune, yet when the reason of the provision was at an end, the court, which only held the stake, could not alter the property of the fortune, which was transferred by law from the wife to the husband. Terms for years. So the court allowed that the husband might dispose of all terms for years which he had in right of his wife, and of all terms for years which were held in trust for her, because the law gives him the disposition of such terms for years, for they are chattels, and therefore under the dominion of the husband. But if he does not dispose of them, they survive to the wife, because the limitation in such contracts being made to the wife and her representatives, they LEX PRiETORIA. 271 cannot be claimed *jure reprcesentationis dur- ing the life of the wife. So if the husband survives, the term is to go to him, his executors or administrators, because it cannot go to the representative of the wife, for the husband, both at and after the death of the wife, had the dominion over it, and there- fore the executors of the wife cannot come and claim it, because she had disposed of it herself, by putting it under the dominion of the hus- band by her marriage. Packer v. Wyndham, Pre. Ch. 312; Gilb. Eq. Rep. 98; 3 Peer. Will. 199. The same rules obtain in equity as to the disposition of the trust of the wife's term. But if the wife takes a mortgage of lands in Packer v. ■wynd- fee, there the husband cannot dispose of it with- out the consent of the wife, because a fine is necessary for the disposing of lands in fee ; and therefore, if he should dispose of it without a fine, the wife or her representatives may enter and recover the land, and consequently the money for which it was pledged. If the husband has a bond or chose in action of the wife, and should assign such, bond with- out a valuable consideration, yet it shall con- tinue to the wife after the death of the husband, notwithstanding such disposition, because such disposition is void at law, it being a chose in action, and it cannot be set up in a court of equity, because it is a mere voluntary conveyance without a consideration. But if the husband had assigned such bond upon valuable consid- eration, it seems a court of equity will make it * By right of representation. 272 LEX PRETORIA. good, because a husband may provide for his fkmily out of the chattels of the wife, and there- fore has an equitable power over them. But where there is no settlement, though the wife by the marriage become entitled to and Pheasants. recover dower, yet if the husband in his life- Abi?ri(i!p5i; 2 time does not recover the debt due by bond to caTisM 3*chan. the wifo, this being a chose in action, the wife ^*''"'' shall have it, and not the husband's represen- tatives ; the husband having only an equitable power over such debts, and where he makes use of such power, upon valuable consideration, it is an equitable disposition of them. Or if the husband had made, or agreed to make, a settlement on the wife in consideration of the debt to the wife, there he had been a purchaser for valuable consideration, and his representa- tive should have it against the wife's repre- sentative. Meredith v. Wynne, Eq. Ahr. 70, p. 15; Pre. Gh. 312; Gilb. Eq. Rep. 70; 2 Vern. 448. Though there the settlement is not men- tioned to be in consideration of her marriage. PORTIONS. Tiftner v. Brom- If an husbaud Settles a term of years upon Jacob «. Thatch-' trustees for himself for life, and then to his Eep.Temp. '' wife for life, for her jointure, and then the hus- band dies, and the wife marries again, my Lord Nottingham was of opinion that the second hus- band could not dispose of this term without the wife's coming to be examined to her consent in the court of chancery. And this was upon the principle of making terms for years subject to the same conditions as if such provision had been made out of the freehold. And therefore LEX PRETORIA. 273 he was of opinion that since a freehold jointure could not be aliened without a fine where the wife was secretly examined, so where the wife was jointured in the trust of a term, that should not be aliened without a secret examination in a court of equity. But this was thought to be a resolution that would confound the distinct properties of the chattel and real estate, and let in many arbitrary resolutions about them, and therefore this decree was reversed in the bouse of lords ; and such terms, and the trust of them, were as much under the power of the second husband, who did not enter into any agree- ment concerning them, as any other terms or trusts of terms of the wife's whatsoever. But the first husband, who had entered into the agreement and settled the term, could not dispose thereof to prevent the provision intended by the settlement. If the wife possessed of a term, and before marriage with a second husband settles it on her children by her former husband, with power to revoke these uses, and limit new ones to such persons as she by her deed should ap- ' point, which the husband signed; the second husband dies, and she marries a third husband: it was resolved by the court, that during the life of her second husband she might by her deed revoke the former uses and limit new ones, because the second husband's signing the deed was a consent to all the uses and powers in that deed, in the manner therein mentioned, and therefore a consent to her revocation of the former uses and limitations of new ones; and the subsequent deed is only a continuation of 18 274 LEX PRETORIA. the uses declared by the first deed, so that all the uses arise out of the first deed to which the husband was consenting. But the third hus- band not consenting to that deed, the wife's power of revocation was suspended during the coverture, since she' could do no legal act without the husband, but by his consent ; and the husband and wife cannot dispose of it, because, by the trust, it must be the mere act of the wife, and that cannot be, if it be under the influence of the husband; and therefore, neither the wife alone, nor with the third hus- band, can dispose of it during the coverture, in prejudice of the children by the first husband. Pitt K.Hunt, 2 Oh. But if a Woman possessed of aterm foryears, Cas.73; Vem.18; , . ^ ._ n , Deakins and his upou her marriage conveys it to trustees for the Wifeti.Bevisford, ^ . Oh. caa. 194. Qge of her husband' s creditors for ten years, and afterwards to such uses as she, either sole or cov- ert, should appoint, and the husband agrees thereto : here the husband may dispose of this term after the ten years, because there was a resulting trust in the wife of the term, and such resulting trust is by the marriage under the power of the husband, because there are no neg- ative words to make it a separate maintenance, and therefore, if the husband disposes of it be- fore any declaration made by the wife, since the resulting trust was then in her, such disposi- tion will be good. And this is not like the former case, where the trust was limited to the children, which prevents all resulting trust to the wife. But it seems in this case that if the wife disposes of this trust before anj' disposition made by the husband, such disposition would amount to a declaration upon the first contract. LEX PRETORIA. 275 and so would be good; because the husband consenting to such disposition, such uses will arise by virtue of the original deed to which he consented. If a woman be jointured in freehold lands constructive no- subject to a judgment, and the husband- after ''°®" marriage makes a lease of these lands tOfa third person, who has notice of this marriage but not of the jointure, and the husband dies, and the lessee purchases in the judgment to protect his term, here the notice of the marriage was con- strued by my Lord Nottingham as notice of the jointure ; because marriages between persons of fortune are seldom made without settling the wife in the land, and such constructive notice he held to be sufficient, because the wife, being under the power of the husband, could not give proper notice, so as to prevent the alienation of her interest. Doyley v. Persal, Eq. Abr. 57 ; Ch. Gas. 225 ; 2 Freem. 138. If a trustee of an estate purchase in an in- purchase by a cumbrance on that estate at an under value, or an executor purchase in a debt for less than is due upon it, this purchase is made for the bene- fit of the estate in one case, and of the testator's estate in the other, because he that takes upon him a trust, takes it for the benefit of the person for whom he is a trustee, and not to take ad- vantage to himself, and therefore the purchase in these cases is for the benefit of the * cestui que trust and the legatees. But if A. purchase in a mortgage of incum- Mortgages, brance on the estate, of B. at an under value, * Person for whom the trust is. 276 I-BX VB.MTOVLIA. B. shall not redeem or take off tlie incumbrance without paying the whole money ; because the whole money is due from B., and therefore he shall not profit himself of the contracts of A. But if A. mortgages to B., and afterwards to C. and D. purchases in the mortgage of ^. at an under value, knowing of the mortgage to C. , there 0. shall redeem, paying the money that D. gave ; because C. was entitled to the redemp- tion before B. intermeddled, and therefore B. could not intermeddle to crowd out any part of . C's money that was secured on the estate ; and therefore if B. has all the money that he laid out upon the purchase of the incumbrance, he ought not to hinder his neighbor from receiv- ing his own money out of the estate, for then B. would receive his own from C. with unlaw- ful usury. But if B. was to receive the money from A., there he should have the whole money that B. lent, because, as far as B. did not purchase at the price originally paid by i'. , it was the gift of B. But this shall not prevail as a voluntary disposition in the i'ormer case, because the money is presumed to be advanced by B. to keep out C. from the redemption, since he was under no necessity to come into this account. He shall come in as a lender ; and so, if he has his prin- cipal and interest paid, it is sufficient. But if B. had ofl'ered the redemption to G. at the same value he sold it to (]., and G. had refused it, there it had been otherwise, because then there was no injury done to C. by letting in another when he had refused to take it ; and therefore B. LEX PRETORIA. 277 shall have the whole money due on the mort- gage, and not what he gave only. Quere: if C. had notice of the whole money lent hy B. before he lent any to A. , whether B. might not have taken an assignment and challenged the whole money? If a man settles or devises lands to trustees what debts a pur- chaser must dis- for the payment of debts, if there be any debts charge. particularly mentioned, the purchaser must see to the application of the money, because it is an express trust that will run with the land, and the buyer must see it discharged ; but if it be only for the payment of debts in general, there the trustee is only trusted with the appli- cation of the money, and the purchaser has no notice of the debts, and need not see to the application of the money. Culpepper v. Aston, 2 Chan. Cos. 115, 221. If a man devises lands for the payment of debts, the personal estate must be applied in the first place ; yet the purchaser is safe if he pays his money, because that is an account only to be settled with the heir by the trustee and executor, and the purchaser comes in fairly to the disposition of the testator. But if the purchase had been * pendente lite, then the pur- chaser had made himself party to the account, because the estate itself is subject to the event of the decree. Where lands are settled and devised in order sir John Taibot • j2 . fi "• nuke of to raise money out of the rents and pronts oi Shrewsbury, such lands for the payment of portions at cer- ^^^j^^^.^^m^ tain and prefixed days, or for the payment of MWd^ieton, ch^^ ♦Pending the suit. ^^^•^^- may sell. 278 LEX PRETORIA. debts, here, thougli there he no clause of em- powering the trustees to dispose of the land for the purposes aforesaid by sale or mortgage, yet if the portions cannot be raised out of the rents and profits, so as to be paid at the times ap- pointed, nor the rents and profits answer the payment of the debts within a reasonable and convenient time, the trustees may sell or mort- gage the lands in order to fulfill the trust, be- cause it is the design of the trust that the debts and portions should be satisfied out of the lands ; and if they cannot be satisfied by the perception of the annual profits, they must be satisfied by the profits of the fee simple; Where trastees and tliis must appear by an account taken of the debts and portions to be satisfied out of the estate, and likewise of the annual profits of such estate. ■ But if such payments be to be made out of the annual profits or rents only, there such payments must be made as they can without sale or mortgage, because the court cannot enlarge the dispositions that persons make of their estates further than the intent of such conveyances. So likewise if the payment had been out of the rents only, the lands could not have been sold by the trustees, because the trustees were confined to the yearly income of the lands. Lady Coventry's case, 2 Mod. Cos. 12 ; GUI. Eq. Bep. 160; Eq. Ahr. 348, p. 19; 2 Eq. Ahr. 87, p. 9, 660, p. 8, 673, p. 9 ; 2 Will. Bep. 222 ; Comyn, 312 ; Max. in Eq. last case; 1 Strang. 596; Lucas, 463. LEX PRETORIA. 279 III. FRAUDS. Voluntary conveyances are always fraudu- lent against purchasers ; and therefore any per- son coming in by a voluntary conveyance, and pursuing a purchaser at law, shall be obliged to discover his title in a court of equity, be- cause it is against conscience to proceed to dis- quiet such purchaser upon a mere voluntary conveyance ; and the purchaser has a right to know what dormant titles such volunteer has to set up against him. A patron presents a clerk to a living, and after institution and induction requires him to give a bond of resignation, which the in- cumbent refusing, a third person, to whom a grant of the next avoidance after the death of the late incumbent was made by the patron, in trust for himself, brings his * quare impedit against the incumbent, and had a verdict and judgment; whereupon the incumbent brings his bill in chancery for an injunction, and upon proof of this whole matter, obtained a perpetual injunction, because it was a fraud to grant the avoidance to overreach the incumbent with whom he had filled the cure. If a man obtains a bond or covenant by fraud which is not negotiable, there, if such covenant or bond be assigned over to a third person for valuable consideration, without no- *'Why he impedes him; a writ so called because the words why he impedes him from presenting are an emphat- ical part of the writ. 280 LEX PRiBTOEIA. tice of the fraud, yet such assignee shall not recover, because the hond or covenant being originally got by fraud, though the obligee or covenantee had obtained the solemnities of con- tracting, yet having obtained them so as they did not bind in a court of conscience, the con- tract creates there no obligation ; and there- fore the assignee who had no title at law, because he must sue in the name of the person who committed the fraud, is not entitled to any relief in a court of equity, and the rather, because such assignee might have gone and in- quired of the covenantor or obligor, and ought in prudence to have done so before he took his contract as a security for his money. Sale of lands. If a man aliens his lands by a voluntary con- veyance, and such conveyancer sells for valu- able consideration, the land is forever bound. For this is not like the former case, because the alienor does convey an interest; but the solemnities of contracting in the former case being obtained by fraud, create no obligation ; therefore, in the case of land, if the person who comes in by the voluntary conveyance sells to another for valuable consideration, he fixes the interest in such purchaser so as not to be shaken. Prodgers v. Langham, Keb. 486; Sid. 133. So if B. obtains a conveyance of land from A. by fraud, and A. quits the possession to B., and B. sells the land to C. for valuable consid- eration ^lioiia fide, and without notice, A. can never obtain the lands against C. , because the fraudulent conveyance with the quitting the * Hpnestly. LEX PRiETOEIA. 281 possession transfers the interest, and then, when C. has obtained an interest at law for his money * bona fide, a court of equity ought not to take it from him. \i A. makes a voluntary conveyance to B., and A. afterwards conveys for valuable consid- eration, the valuable consideration shall take place. But if B. had first conveyed upon a valuable consideration, then his conveyance should have taken place: and in such cases, if both conveyances be voluntary, it lies only on the priority ; for A. had an interest notwith- standing his voluntary conveyance to convey for valuable consideration, for ^quoad such person's coming in for value, he had an in- terest to convey, and B. having the legal 'in- terest in him, could likewise convey, so that the purchaser who first comes into the legal interest upon a just and valuable consideration has the title. As to the personal estate, there is a differ- personal estate. ence between contracts that are negotiable and such as are not ; for a man that has ob- tained a fraudulent contract that is not nego- tiable, as a bond or covenant, this, as we said, creates no obligation in a court of equity, and therefore, though the assignee comes in for value, he obtains nothing. But if a man ob- tains a negotiable note by fraud, and he actu- ally negotiates it for value, the indorsee of the note shall have his money of the drawer, because he has done a mercantile act, and therefore subjects himself to the mercantile law ; and it would be the ruin of all commerce, ''Honestly. .f As to. 282 LEX PRETORIA. and a great interruption to it, if the original cause and consideration of sucli notes should be inquired into ; and the indorsee has a legal Turtont.. Benson, right to the note, and a legal remedy at law, I\*|."2f2 veri. which a court of equity ought not to take from Luoas,'M5; Peer.' him. But the assignee of a chose in action has no remedy at law, or a right to sue in his own name, and has only an equitable remedy, and he fails both in law and equity when the bond is obtained by fraud, and so has no right against the original contractor for the money. But there is another difference in a negotiable contract, and that is, where a negotiable con- tract is actually negotiated in a mercantile way. There the indorsee shall in all events have his money, because he claims by the mercantile law, and it would put a stop to all commerce if it were otherwise ; but where it is not actu- ally negotiated in the mercantile way, as if it were assigned as a collateral security for a debt already contracted, there the indorsee stands in the place of the indorser, and takes the note, such as it is, to prop and support his own in- terest to a debt already contracted, and there- fore he does not come in in the mercantile way where the note passes as ready money, since the money was advanced before he had the 2 Strange, 1155; ^^^^ > ^^^ therefore, not coming in in the mer- Boyero. amp- Qg^Q^j[][g way, if the uoto was fraudulently ob- tained, or by gaming, he has no remedy against the drawer. It seems that this should be understood of relief in equity, where the plaintiff had lost the note : and it has been determined that an LEX PE^TOEIA, 283 indorsee *bona fide without notice shall re- cover at law, though the winner shall not. Hussey v. Jacob, 5 Mod. ITS ; Cartli. 356 ; Holt, 328 ; Cases B. B. 96 ; Salk. 344 ; Comyn, 4 ; 1 Lord Baym. 87. But see the above case of Boyer and Bampton, where it was held that the innocent indorsee could not maintain an action against the drawer, and had only remedy against the indorser, (2 Strange, 1155,) where the chief justice took notice that, in the case of Hussey and Jacob, the point adjudged was mistaken. There are further differences between nego- tiable contracts and others : for if a man draws a negotiable note, and afterwards comes to pay it to the promisee of the note, and the promisee does not deliver up the note, but pretends to have lost it, having actually before negotiated it, or if he negotiated it afterwards, the drawer must pay this money over again, because he suffered such a negotiable instrument to stand out against him; therefore he trusts to the honor of the promisee and to his covenants if he takes security against it, and contributes, by letting the note lie out against him, to the deceit of the indorsee, who has taken it in the way of trade instead of money. But if a man has bound himself in an obliga- tion, and afterwards comes to pay the money, and the obligee, pretending to have lost the bond, receives the money and gives a release, this is a legal discharge to the obligor; and though the obligee should either before or afterwards assign such bond, a court of equity * Honestly. 284 I-EX PRETORIA. would never oblige the obligor to pay it over again, because the obligor has a legal dis- charge, and there is no equity against him to pay it over again. And here the assignee must take his remedy against the assignor upon his covenants, one of which in the common course of conveyancing generally is, that there is the sum due on the bond or covenant, and that he will not release or discharge it. So if one of the co-obligors pays the money by a third hand to the obligee, and no release is given, and an assignment of the bond is afterwards made to a third person without notice of the payment, as a collateral security for a debt before contracted, there the other co-obligor shall not pay the debt over again, because the assignor assigned nothing, the money being actually paid when such assign- ment was made, and consequently the contract dissolved in equity, and the assignee, as to the money being due on such contract, trusted only to the covenants of the assignor. But if the bond was assigned for value before payment, there an equitable interest passes ; and, in such cases, if the obligor pays the money to the obligee, and cannot plead such payment at law, a court of equity will not in- terpose to assist him, for he ought not to profit of his own incautious payment against a person who comes in on an equitable consideration : and the court of equity cannot enjoin in this case, because the obligee proceeds contrary to conscience, inasmuch as the obligee, after as- signment, is looked upon in a court of equity as a nominal person, and therefore a court of lEX PRETORIA. 285 equity ought not to interpose where the as- signee is only suing in the name of the obligee in order to recover his just deht. But if the obligor can plead his payment at I law, there it seems a court of equity will not interpose to assist the assignee ; for when pay- ment is made without fraud, there is no equity that the money should be paid over again, and the assignee, who had no legal interest in the chose in action by his contract, must take his remedy upon his covenants against the assignor. As to bargains made with heirs where their Bargains made r -1 p T /■> 1 1 with heirs. fathers ar.e tenants for life, the rule seems to Noit d. Hiii, Eq. Abr 275 J I) 1 * 2 be this: that if the heirs have a maintenance ch.cas. 126; ve™. 167 ; 2 Vern. 27. from the father, and should take up goods at extravagant rates, the court of equity will in such cases relieve after the death of the father, and reduce the bargain to the common value of the goods, with an allowance of interest from the time of taking them up, because it is an oppressive ^bargain, and merely to supply the extravagance and prodigality of the heir. Bar- ney V. Beak, 2 Chan. Gas. 136. And there have been instances where the heir has been relieved, though in a former bill exhibited by the creditors he refused to pay the debt, and swore he would not apply to equity for relief. But if the heir had no main- tenance from his father, and was turned out upon unreasonable displeasure taken by the father, there, if the bargain be made, and not excessively beyond the proportion of such risk, such bargain shall stand, because it is not to supply the luxury and prodigality of the heir^ but to keep him from starving ; and since the 286 LEX PRETORIA. seller would have lost his money in ease the heir had died during the life of the father, he ought to have a proportional benefit for such hazard. Conveyances by a If a woman makes any conveyance of her woman before , , i p • -ii j. ii_ „ •„;4.„ marriage. own estate before marriage, without the privity Howardand Wife „, . i , , i i n • j u. Hooker, Eq. of her intended husband, or confesses any juclg- Eep. 81. ' ' ' ment or acknowledges any statute to aifect her estate other than such as were upon valuable consideration, they shall not affect the hus- band; for this is an apparent fraud, and would hinder the dominion of the husband over the wife's estate. Lance v. Norman, 2 Gh. Rep. 79 ; Eq. Abr. 59, p. 2. Gaier.Lindo.Eq. Nay, they havc carried it so far that where vern.476. ' ^' ' a Collateral relation gives a portion with a wife, and the wife gives security to pay part of it back again, and the husband dies without issue, and then the wife dies, and the executor of the wife sues in a court of equity to have the secu- rity given by the wife delivered up', the court hath decreed it accordingly, because the security was fraudulent, and passed no right to the money, and a security that ought not to be made ought not to be sued. And this cannot be com- pared to a voluntary conveyance, because there the grantor passes what may be lawfully given ; but the wife cannot lawfully give any part of that which Was conveyed to the husband, and the court of equity ought to take such resolu- tions as tend most effectually to the discourage- ment of such frauds, and therefore they hold that what is dishonest in its creation can never afterwards be made good. ve°yano"8y''°°' Where a man makes a voluntary conveyance LEX PRiETORIA. 287 with power of revocation, and afterwards con- tracts bond or other debts which only bind the person, such creditors suing the debtor to a judgment shall extend the lands in the hand of the voluntary conveyancer, and make a title in an elegit to the lands in his hands, notwith- standing such voluntary conveyance, by the statute 13 El. c. 5 ; but if it be a, debt only upon a note, and the note is reduced to a judg- ment during the life of the debtor, there the creditor cannot affect the volunteer, because the debt does not bind the heir, but merely the personal assets. But if a man purchases of the volunteer with notice of the, bond debt, it has been resolved that such bond debt will not affect the pur- chaser, for the purchaser is to look no further than his title, and the bond debt is no part of the title till it is placed on the land by the judgment; and if a man had purchased from the first conveyancer with notice of his debts by bonds, the purchaser would not have been obliged to look after the payment of such debts by bond, because they are trusted upon mere personal security, which the creditors must compel the person to pay, and are no part of the title of the land. But if it were otherwise, personal security would be turned into real security in a court of equity, and creditors would embrangle the title where they had not taken security upon it, and the volunteer is just in the place of the first conveyancer, and therefore the debts of the first conveyancer shall no more hinder the sale and come upon the purchase money than 288 LEX PR^TOEIA. if the first conveyancer himself had sold ; for when the sale is made by the volunteer, the first conveyancer then sold * quoad his cred-. itors, the voluntary conveyance as to them affecting nothing. Formerly it was held in the court of equity that if a man had made his will, and had de- vised several legacies, and afterwards finding that the personal estate would not answer, had a discourse with his heir touching his inten- tion to charge his real estate with the legacies, hut omitted to do it upon the promise of the heir that he would see them discharged, that in such case a court of equity would have re- lieved, and brought the charge upon the heir. Phillips t). St- But now the modern resolutions of the court Clement's Parish, , , .i. i n • in Bq. Abr. 404,p. 2. have been that no such parol promises shall confesses such charge the estate ; for if the estate be charged, it must be charged by the will of the testator, ■ and there can be no will without the solemnities required by the statute of frauds and perjuries ; and if parol proof of this nature be admitted, then wills that are in writing would be changed by evidence that is '\de hors. And they have now come to a settled rule in a court of equity that a will in writing can never be altered or changed by any parol proof; for though they will read parol proof to fortify any natural construction that rises from the words of the will, yet they never read any parol proof to make anjj alteration in the will ox addition to it ; and if this should be admitted, it would be a charge added merely on the parol proof where there was nothing in the will to ground *A3to. t Externally. promise. LEX PR^TOEIA. 289 it ; but if the heir confesses the promise, then it should seem that a court of equity will de- cree it, for then there is no danger of perjury. So also if a will be obtained by circumven- Bodmin d. Eob- tion and artifice, yet if the testator was of |[*^' s^'- ^h- caa ^animus testandi, the court will never look back into the cause of procuring the will ; for though in deeds, where a man is trepaned by any false acts to parting with his interest, there the court will set them aside, because the grantor parts with nothing, if he had not a fair intention to pass it, and the grantee gains nothing by such corrupt artifices, since it is dishonest to insist upon the solemnities of con- tracting where they are dishonestly procured. But in wills they look no further than the '\ voluntas testator is, inv no interest passes from the testator by the will, since it is ambulatory till his death, and therefore here a court of equity looks no further than whether he was of * animus testandi at the time the will was made ; and if they should go back to the pro- curing causes of such wills, they foresaw that it would carry them to consider whether such wills were made or legacies given upon reason- able and just grounds ; and if they should go that length with their decrees, the court must determine upon the reason and ground of each bequest, which would shake the appointments that persons make by their wills, and create a general uncertainty in this sort of conveyance of property. If a lessee covenants for payment of rent and Assignment of a repairs, or for building on any part of the * A disposing mind. f Will of the testator. 19 290 LEX PRETORIA. premises, and the term is afterwards extended and sold for debt, and such assignees finding the term not worth their having, offer to resign to the lessor, and he refusing, they assign to a beggar, and the question was, whether this was a fraud that a court of equity would relieve against ; and the court took this distinction : that if the assignees had continued long in pos- session, and the premises has been worse, and became ruinous under their hands or by their Lord Raymond, means, there the assignment would be consid- 320 322 868 554' 2 Lord Raymon'ci, ered to be a fraud to get rid of the damage that 16Sl;Strange,406; ° " |St™n|ejji22i; they ought to answer ; but if they assigned im- mediately after their coming into possession, there was no reason to relieve, because the assignee was not chargeable at law, and the lessor had his original security against the lessee and his executors, as he had before, unimpeached, and the assignee being under no obligation to hold it, there was no fraud in making such assignment. Pitcher v. Tovey, 2 Danv. 485, p. 9 ; 4 Mod. 71 ; Salic. 81 ; 2 Vent. 234 ; 3 Lev. 295 ; Show. 340 ; Oarth. 177 ; Gases B. B. 23 ; Holt, 73. Duke Hamilton D. If a parent or guardian of a minor comes to Abr. 9o,p.6°'2 '^' an agreement with the intended husband upon 158; Lucas, 447; marriage that he shall release any part of the money or estate belonging to the infant, such agreement will be set aside in a court of equity, because it is for the sale of the child ; and so all brokerage contracts for procuring of marriage with any woman whatsoever are void ; and notwithstanding the bond is colored with the troubles and pains in making the match, yet it is a void contract in a court of equity. LEX PRETORIA. 291 If there te tenant for life, with remainder in Lease made good ,, , , „ ... , 111 by a tenant in tail, tail to the son^ and tenant for life lets the lands Banning «. Fer- ^ rers, Eq. Abr. 366, lor a longer term than he has power to make, iMO; Giib. Eq. and the person who takes the lease makes im- provements, and the tenant in tail, who is con- usant of the settlement, stands by, and either encourages or does not forbid it, the tenant shall enjoy his term, for *qui tacet, consentire videtur, et qui potest, et debet vetare, et non ve- tatj jubet. A man upon the marriage of his wife's Loffe«.iiOwen, daughter, to whom he was indebted, but not Gii'b. Bq. Ee'p. k'- , ' „ , . Ill- Pre.Cli, 370; 2 to the value of the portion expected by the in- Eq. Abr. 256, p. s. tended husband, makes him a verbal promise to pay him four thousand pounds, and pays all but fifteen hundred pounds, and some .time afterwards seals a bond to the husband for the fifteen hundred pounds, and shows it, together with his will, to the husband, but does not de- liver it, but keeps it by him till his death, and then it is found with his will : he has several creditors upon simple contract, who take out administration, and the husband becoming a bankrupt, his creditors exhibit their bill to have the benefit of the bond; the Lord Harcourt de- creed that this bond was to be looked upon as a voluntary cont;:act, being not made in pursu- ance of any obligation in writing on the mar- riage, nor put into the power of the husband, and therefore it was to be looked upon as fraud- ulent and void f quoad the creditors, even upon simple contract, but good against any legacies ; * Silence is consent, and not forbidding, when a person has it in his power, and ought to do so, is commanding, f As to. 292 LEX PRETORIA. because a voluntary contract in the life of the testator is prior to the will. East India Cam- A man becomes a factor to the East India Giib.Eq.Rep.'sT; company, and enters into articles for the due Pre Oh 377 "2 l ^i ? Eq. Abr'. 62, p, 6, manaojement of their affairs, and likewise gives 481, p. 13. ° . ° a bond of two thousand pounds for the per- formance of the articles. In the articles his executors and administrators are only bound, but in the bond his heirs are taken in. Some few days afterwards, being to go to the Uast Indies, he makes a settlement of his estate, and limits a term for the raising of five thousand , pounds portion for his only daughter, and then departs the kingdom. A gentleman to whom the daughter showed the settlement, and who advised with lawyers upon it, afterwards mar- ried her, having their opinion that the portion was well secured. The lady afterwards dies without issue, and the husband having admin- istered to her, brought his bill for the portion, and had it decreed to him. The East India company, whose goods to the value of twenty- six thousand pounds were embezzled by the factor, brought their bill to have the said sum out of his real estate ; and it was decreed that the real estate should be charged no further than with the sum of two thousand pounds, which was a lien upon it by the bond ; and *quoad the residue, there being no charge upon it, it was subject to the provision made for the daughter, it being fairly made and intended at the time of the factor's going beyond sea. Ola- vel V. Littleton, Ch. Pre. 305. Notice of the plaintiff's title to the agent or *A3tO. LEX PRETORIA. 293 purchaser for another, and likewise notice to Merrey ». Abney, the counsel or attorney that peruses the title, (}S'.cJ'.3S;'i' ' . Freem* 151. is notice to the party himself, because a pre- sumptive notice to the party. A decree in a court of equity for money does sneiiing ». squib, not bind a purchaser for valuable consideration Greawoid u. kar- sham, 2 Oh. Gas. Without notice of the decree, no more than a iw. judgment at law, and is just upon the same footing as a judgment at law; but if it be a decree *m rem, there it binds the purchaser, because the vendor conveys no title, since the right of the land is decreed away to another, and therefore the plaintiff has a title by the decree to carry it into execution on the land, into whosesoever hands it afterwards comes. Note: an administrator paid a bond debt searie v. Lano, 2 . . , . , 1 1 , ,. Vern.88; Eq.Abr. (without notice) where there was a decree tor 332,p.4;2Freem. a sum of money against the intestate, and hav- ing no assets, he was obliged to pay it out of his own pocket. IV. POWERS. Powers in any settlement are a reservation of so much dominion over the estate itself which is settled or conveyed. This power being a res- ervation of so much dominion over the estate, if the party to whom the power is reserved should convey the estate to any good purposes, as for payment of debts, or for raising younger * Against the estate. 294 LEX PRiETORIA. children's fortunes, though the circumstances required by the power are not complied with, yet the court of equity would supply them, be- cause the party having dominion over the estate, he may do, as far as his power goes, that which every owner may do with his estate. Indeed he cannot go beyond the power to charge it further, because beyond the power the estate is settled, and therefore so far out of his power ; but as far as the compass and extent of his power reaches, so far a court of equity will sup- ply the defect of all circumstances ; because in a court of equity the circumstances are looked upon as guards for the better execution of that power, and to prevent the party that has it from any circumvention or surprise, and the court of Edward v. Slater, equity will SCO that the party is not circum- Hard.410; Mon- •, , ■ ■, • .^ i- i- i taguev.Bath.sei. vented or surprised m the execution oi such Rep.4i7; wii- 'power. And therefore all circumstances that more v. Keu- , . . , i drick, Oh. cas. guard it are m that court unnecessary, where there are no other persons concerned but those that claim under the power and those that claim under the settlement ; because those that claim under the settlement do likewise claim under the power, and therefore they have the full benefit of the settlement which they con- tracted for, though the power be executed upon them. Smith v. Ashton, Eq. Ahr. 345, p. 14 ; Eep. Temp. Finch, 2Y3 ; 3 Kehle, 551 ; 3 Salk. 211; 2 Freem. 308; Ch. Gas. 264. Where the exeou- Therefore, if the power be to be executed for be made good, the payment of debts in the presence of three credible witnesses, and it is executed for the payment of debts in the presence but of two, if there be no conveyance of the land itself, or no LEX PRETORIA. 295 person appointed for the execution of the power, there a court of equity will supply it by their decree, and order it to be executed by the per- son interested in the settlement, because they all claim under that power. But if the power be to be executed by a will in writing, there it must have the circumstances required by the statute of frauds and perjuries to a will in writ- ing that passes lands, because otherwise it is no will, and therefore cannot charge the lands Pit«.Peiham,Eq. as a will, since such wills are made void by the MsishThi)'. jon.' statute, and therefore the court of equity can- ^°' ° -Kep.ass. not break in upon those solemnities. Bath and Montague, above. If there be tenant for life of lands, with re- mainder to his first and other sons in tail, with power to tenant for life to charge one thousand pounds upon them, by deed executed in the presence of three or more credible witnesses, and tenant for life should mortgage the land by lease and release for the one thousand pounds to A., without any recital of the power, in the presence of only two witnesses, the court of equity would compel those claiming under the settlement. to supply such defective convey- ance, because -they claim under the power, and have the whole benefit of their part of the con- tract, notwithstanding the charge. But if tenant for life should in such case mort- Purchasers , T> -i." ii. J ■ J.- under a power. gage to ii . , reciting the power, and in execution thereof, with all circumstances required by the power, and without notice of the mortgage to A., there B. would have the legal interest by the use created in the first settlement, and such use would arise at law out of the estate conveyed 296 LEX PRETORIA. to the grantee, and therefore will be a legal title to B., notwithstanding the conveyance to A., and consequently could not prevail in a court of equity, because B. had the legal title, and was equally a purchaser for valuable con- sideration without notice. But if B. had notice of the first mortgage to A., then he would come in with an ill con- science into the estate, and A.'s mortgage, as prior in time, must prevail. Again : if such mortgagee had conveyed to A. by fine or feofi'ment, such fine or feoffment would have displaced the remainders, and pre- cluded the mortgager from the execution of his power, and consequently the subsequent mort- gage to B., though he came in without notice, would be bad at law, since the mortgager, by his fine or feoffment, had conveyed the fee, and had no power to mortgage; but if it were by bargain and sale, or lease and release, that passing by law no more than lawfully may pass, conveys an estate at law in fee to the mortgagee during the life of the mortgager, and there does not preclude the execution of a power in gross, which is to arise after the deatfc of the mortgager. But if it were a power appendant, that is to say, a power that is to be executed out of the estate, as a power to make leases for twenty- one years, or the like, there a bargain and sale, or lease and release, would hinder the execu- tion of such power, because it conveys away the estate to which such power is annexed. Jen- kins V. Kcmisli, Hard. 395; Lev. 150, 237; Gh. Cas. 105; Gh. Rep. 275. LEX PRiETORIA. 297 It is held in the above case that, in a marriage who are pur- settlement, not only the husband that is tenant riaglTetSenS for life, and the issue of the marriage, but a re- mote remainderman that is not an issue of the marriage, shall be looked upon as a purchaser under the marriage settlement, because all the contractors equally agreed to let in his interest ; and the contract is meritorious, and therefore shall stand good to every person interested in the contract. Brother obliged to provide for a brother. Pie d. George, Eq. Plow. 3066. But my Lord Harcourt has held, saiii.oso; Pre!' .,..„. , . , , ' Oh.308; Peer. that It m sucn marriage settlements there win. 128. were contingent estates to the first and every other son of the marriage, and the trustees should join with the father to destroy their interest before such issue were had, the court of equity would set up the settlement against the trustees and all persons claiming under notice of such contract, because the convey- ance was made with an ill conscience to destroy the settlement. (a) But if there was a remote contingent re- w Tipping «. mainder, and after the death of the wife \vith-«86,p.'2;Giib.Eq. Ill 1 1 , 1 1 • • K'^P-34; Pollard out issue the husband and trustees should loin «. orenviiie, ch. •> Cas. 1U| Ch. Eep. to destroy! such contingent remainder, a court is*;, ^q.^^fb^^- 3*2, of equity would not set it up, because, though fep^u-'Ne^ch the parties have agreed to let in such interest, fl^'J'\\ fvii*'"^' yet it is still a contingent interest, and subject d,.°ok,''o?.'cas. to be barred at law by the husband and trus- l^Jfhh^^i tees joining in a fine and feoffment ; and there 55'' ®®'' ^^' °'''^" was no ill conscience in making use of that power, since it disappoints nobody that had originally paid price in procuring the contract. So where a rent charge was granted to trus- 298 LEX PRETORIA. tees in trust for the father and mother for life, and after for the first son and the heirs male of his body, and after marriage and before the birth of the first son all the parties interested sold part, &c., the trustees were decreed to make it good, orby u. Lord Mo- If there be tenant for life with a remainder p. s; 2 vern.'esil in tail, and tenant for life has a power of mak- 642; Gilb.Eq. . ' , , • j n j. • i." Rep. 46; Pre. Gh. mg; leases Under certain terms and restrictions, 257; 3 Oh. Rep. ° io2;2Freem.29i; if the tenant for life makes leases for valuable Lucas, 473 ; Pol- /. 7 ■ n J^^rd^^ Gienviiie, consideration, as for money * bona fide paid, or for valuable rent reserved, or as a provision for younger children, there, if all the circum- stances of the power are not pursued,' the court of equity will relieve, as it does when any other defective conveyance is made ; for since the ten- ant's defective execution of a power for life has a dominion fira tanto over the remainder, the not executing the conveyance according to the exact terms of the power is no more than a defective conveyance; and when a defective conveyance is made upon a good and valuable consideration,. the court of equity always does relieve. Parry v. Browne, p. 29T. But if such person makes a voluntary lease, if it be not pursuant to the power, a court of equity will not relieve, because the conveyance being defective, and upon no valuable considera- tion, the court of equity cannot set it up against the person who has the legal estate in him ; for he that claims under the power can have no better title in a court of equity than he has at law, since there is no valuable consideration to set it up in a court of equity. ♦Honestly. "I" For so much. LEX PRETORIA. 299 But there are two cases in which a court of Volunteers ra- equity will relieve the person who comes in under a voluntary deed by such power. The first is, when any of the terms of the power become impossible by accident to be ex- ecuted ; for a court of equity relieves against all manner of accidents, since it is unconscionable for the remainderman to take advantage of them ; therefore, if a man makes a conveyance, with a power of revocation, in the presence of four privy counsellors, and he is sent by the King to Jamaica, where that circumstance be- comes impossible, there equity will allow him to revoke without it. Bath and Montague, 8el. Oh. Cas. 55; 2 Ch. Bep. 417. Secondly, where the remainderman gets the deed into his possession, and will not allow the tenant for life to have a sight of it, there the tenant for life may execute conveyances ; and though he does not pursue the terms of the power, yet the court of equity will relieve, be- cause the remainderman shall not take advan- tage of his own wrong by withholding from the tenant for life the sight of his own power. lieved. V. WILLS, EXECUTORS, ADMINISTRATORS, DEVISES, AND LEGACIES. As to wills. Marshaling of assets. The first thing to be considered is the mar- gon " Fiewin^"' shaling the assets. And if there be bond cred- lljt%f' p- ^"^ 300 LEX PRETORIA. itors, and creditors by simple contract, and the bond creditors sweep away all the personal assets, as they may to satisfy their debts, for a court of equity cannot narrow their security ; then, if the simple contract creditors exhibit their bill against the heir and executors, and the bond creditors, to have them assign the bond, a court of equity will order the bonds to be assigned to a trustee for the use of the sim- ple contract creditors, who may sue the heir at law upon the bonds, in order to recover the value of the money due on the bonds to satisfy the simple contract creditors. Gower v. Mead, Pre. Ch. 2. Nichols V. Cham- But as to legatees there is a distinction. For berlain.SCh. .„^, , , •■ • ■ i i.- Rep. 89; Neis.ch. II the Icgacy be upon meritorious considerations, Rep. 44; Cham- . °- n .- n j , . • • r beriain o. oham- as in satisiactiou 01 a debt, or as provision lor berlain, Oh. Cas. i i -n i , 257,258; 2 Eq. youngor children or grandchildren, then equity ^:.\'.?'t-^i"\-^'^' will marshal the assets in the same manner for 52, 141;]NlchoIson ca^'^57™Eq''Abr ^'^^'"^ legatees as for simple contract creditors. Freem!°m- ^^^ ^* hath been said, that if such marshaling wick™, Eq'^^Abi-. °^' ^'^^ asscts would totally destroy or eat up 410; Villi le^p*"'' t^^e estate of the heir, equity in favor of the heir will apportion the lands so as to give both the heir and the legatee a share, which must be in this proportion, viz: that the heir must have as much as all the legatees taken together. For since he is not disinherited by the will, the value of what descends to him must be looked upon as his proportion ; for the leaving it to descend was as much a designed provision for the eldest son as the express devise was for the younger children, and therefore he must abate *pro rata out of his provision in the same * Proportionably. 201. LEX PRiETORIA, 801 manner as each of the younger children are to abate out of their respective provisions, there not being sufSScient assets to answer. For example, if ^. dies indebted by bond in five hundred pounds, and leaves an estate of two hundred and fifty pounds a year to descend to B., his son, subject to that charge, and de- vises three hundred pounds to O., his second son, and two hundred pounds to D., his third son, and the bond creditor recovers out of the personal assets his five hundred pounds, C. and D. , the younger sons, may exhibit their bills against the heir, executor, and bond creditor^ to have an assignment of this bond and their ratable part of their legacies ; and the abate- ment must be made in this manner : B. must have the value of two hundred and fifty pounds out of the land, being his proportion of the * residuum, and there must be two hundred and fifty pounds more paid to the two younger sons, to be divided in proportion as three to two, because the bond was a charge upon the land as well as the personal assets, and therefore in equity ought to be paid equally out of each fund; that is to say, two hundred and fifty pounds out of the personal assets, and two hundred and fifty pounds out of the land, which leaves the heir just as much as both the lega- tees. But if the provision for the heir be ample, there the whole legacies shall be paid to the younger children. And the provision for the heir is looked upon in a court of equity to be ample, where there is as much left in ^residuum * Residue.- 302 MX PRETORIA, for the heir as is taken out for a provision for all the younger children and legatees ; and in such case the legatees shall have their whole legacies. But if the legatees were volunteers, or col- lateral relations, for whom the testator was not obliged by the law of Grod and nature to provide, there is no marshaling the assets in favor of such legatees; for a court of equity never interposes but in favor of persons that have a meritorious consideration. In like manner, if the bond creditor resorts to the land for his debt, and B., the heir, pays it, and takes an assignment of the bond, and then endeavors to sue the executors aud load the personal assets with the whole debt, there the court of equity will not suffer him to break in upon the provisions for younger children and legatees, but according to the above-men- tioned proportion. But in these cases the heir ought to take care upon payment of the bond to have a legal assignment of the bond, so as to leave a lien on the personal assets at law, for otherwise a court of equity has no foundfi- tion to relieve the heir. For if the bond stands once as a satisfied bond at law, the personal assets will be only subject to fulfill the will ; and therefore, in this case, the heir must take care to pay and take an assignment of the bond before judgment be obtained against him on the Anonymous,2Ch. bond, for, *.st transit in rem judicatam against him, it becomes a lien on the land only, and discharges the personal assets. t Vice versd if there were no bond creditors *If it be a judgment. f Contrariwise. LEX PRETORIA. 803 in this case, but all the debts were upon simple contract. The simple contract creditors must recover out of the personal assets, and the heir shall hold the land discharged both of the debts and legacies ; because there is in this case no foundation for a court of equity to marshal the assets in favor of the legatees, since there is no lien upon the land in the hands of the heir where the debts are only standing on the foot of the simple contracts. For the ground that equity goes upon in marshaling the assets is, where the personal estate, that is. satisfaction for creditors and provision for younger chil- dren, is swallowed up by that which is *onus on the heir, there they will marshal the assets. So where the provision of the heir would be swallowed up by the *onus on himself, which is also a legal lien on the personal assets, there they let him come on the personal assets in the same proportion. A., seized in fee and indebted by bonds, gives Heamu.Mer- by his will legacies to his younger children Eq.Abr.ua.p.ui (whom he had otherwise provided for before) and devises his land to his eldest son in tail, whom also he made executor. The eldest son pays the bonds with the personal estate, where- upon the legatees, in the place of the bond creditors, bring their bill against the reales- tate to be paid out of it, and the bill was dis- missed, first, because where there is an express specific legacy of any particular thing, they do not commonly break into such specific legacies in favor of the pecuniary ones ; but secondly, because the children in this case being pro- * Charge. * 304 LEX PRETORIA. vided for in the lifetime of the testator, their legacies are not upon meritorious consideration ; and therefore, according to the former rule, being mere volunteers, they are not to induce a charge on the real estate. How the personal Having Considered how assets are to be mar- pue/in ease^of^ shaled, the uext thing to be considered is, how the personal estate is to be applied in exoner- ation of the real. And in the first place, if a man mortgages his estate, and dies, the heir of the mortgager may demand the benefit of the personal estate, after all debts and legacies are paid in exoner- ation of this mortgage, though there were an express devise of the * residuum to the executor, and whether there was a covenant in the mort- gage for the payment of the money or not; and the reason is, because the personal estate is the fund for the payment of all debts, and Co. Lit. 209; Cope the mortgage money is a debt, whether there Eyre''«.' Hastings', be a Covenant for the payment of it in the mortgage deed or not, because the very bor- rowing of the money is a debt; and if the money was tendered at the day of the condi- tion, and not accepted, whereby the estate at law was discharged, yet an action of debt might be brought for the money ; and since this is a debt, it is like all other debts, to be paid by the executor, and by consequence the devise of the * residuum is only after debts paid, which is ^expressio eorum quae tacite in- * Residue. t Expressing what is tacitly implied, and has no effect. See this maxim explained and illustrated in Grounds and Rudi- ments of L. and E. p. 114. LEX PRiETORIA. 305 sunt et nihil operatur : and therefore the execu- tor must pay this debt out of the personal estate before he can be entitled to the residue. But if there be an express clause to exempt Haii v. Brooker, the personal estate from the payment of such sEq. Abr.«4;p? , , 8; BOl, p. 44; debts, or words tantamount, there the load lies Q-ower ?.. Mead, ' ' Pre. Ch. 2. upon the heir, because it is the will of him who has the dominion over both estates that the real estate should be charged in such manner. If a man mortgages his lands, and devises all Gower v. Mead, . . , T fv . , . , Pre.Ch. 2. his real estate to J. 6., or appoints him to be his heir, the personal estate shall be applied in exonerating of the mortgage, because the *hceres /actus comes instead of the "[hceres natus by the will, and it is the intention of the testator that he should have all the privileges of the Piceres natus, and to stand in the place of the testator, as his representative in the real estate, and by consequence that the personal estate should dis- charge all debts due on the real estate as if it had descended to the "fhceres natus. Pocldey v. FocMey, Eq. Abr. 270, p. 5; Vern. 36; 2 Oh. Gas. 84. But if a man mortgages his land, and then devises it to J. S. or to A. for life, the remain- der in fee to B., there such estate does ^transire cum onere, for the devisor devises nothing else but the reversion after the charge ceases ; and by consequence, if the executor were to exoner- ate, that would be to enlarge the legacy beyond the intent of the testator, and therefore the de- vise of the real estate to a particular person in this manner does amount to an exemption of * Heir made so. t Heir born so. g Pass with the incumbrance. 20 306 LEX PRETORIA. the personal estate from this deht, because it is a devise of no more to such a devisee than what the estate would amount to after such debt is paid ; and therefore, if a court of equity should decree the executor in this case to exonerate, it would swell the legacy beyond the intention of the testator ; so that in such case, if the mort- gagee, having a covenant on the personal estate, should recover his debt out of it, the executor would have an equity against the devisee to have the money back again from him. Cornish v. Meiv, Eq. Ahr. 117, p. 2, 315, p. 5, 270, p. 5, Rep. Temp. Finch, 220; Ch. Cos. 271. Hall D. Brookev, If a man devises lands for the payment of 2Eq'. Ahr. 4M,p.' debts aud legacies, and devises his, personal 8 ; 004, p. 44 ; , . , Anonymous, 2 estate to his cxccutor, yet such personal estate Vent. ;H9, 350; •' •^ -^ Stroud ti. Ellis, shall go in exoneration of the real, because the Nels. Ch. Rep. ~ ' 20.T; Cutler t). remainder, after the debts and legacies, goes to Coxiter, 2 Vern. ' o ? o reu 2 veni.'aoQ *^*^ heir, and the personal estate is the natural iTiaUe"the'per- fuud for the payment of the debts and legacies ; i-eTto'heTbu, and in this case the devise to the executor "he"^^ppoiTiment sccms to be uo moro than surplusage, since the ch?cSK)7!°'' personal estate would have gone to him with- out such devise. wainwrighti). But if a man devises lands for the payment Benlowes, Eq. n t ^ , i , . , , ■, ■, Abr. 271. p. 12; 2 01 debts and legacies, and the overplus to the Vorn. 7IS; Gilb. , . BQ.Rep.i25; Pre. beir, or to the heir and a stranger, there the personal estate in the hands of the executor shall never exonerate the real so devised, as they call it in chancery, out and out ; for the overplus is devised in such case as a pecuniary legacy, and not as a real estate. And then the * quantum of such pecuniary legacy is to be ascertained in such case according to the in- * Quantity. LEX PEiETOKIA. 307 tention of the testator ; and that can only he by taking the debts and legacies out of the price and value of the lands, and therefore it would alter the intention of the testator to cast in the personal estate by way of exonera- tion. If a man devises lands for the payment of HaUD.Brooker, debts and legacies, and then devises the resi- 2 Eq'.Ab'r. 404] p'' due of his personal estate to a stranger, and not to the executor, such devise of the * residuum must then be taken as a legacy of the personal estate not before bequeathed to the legatees ; and therefore, that being considered as a legacy, it cannot go in exoneration of the real estate, since the testator, who had dominion over both estates, bad disposed of it. So if a man devises lands for the payment of Middieton ». mh- . ■/ I dleton, Ch, Rep. debts and legacies,. and devises a speciiic legacy, 377. or any certain sum of money to the executor, this shall not go in exoneration of the real estate, for the same reason. ' If a man devises lands for the payment of chirtono.Birt, , . , , , , , . IT. , -1 Pre. Ch, 64a his debts and legacies, and devises the residue • to J. N,, his nephew, at the age of twenty-five, and afterwards devises the residue of his per- sonal estate to J. N. , and makes J. S. his ex- ecutor, the personal estate shall exonerate the real. So that if J. N. dies, the executor or Doiman ». smith, .-.--.,,' 2 Vern.740; Gilb, administrator of Vern. 482. lands are appointed tor the payment ot debts Lands appropri- 11 . . , , , ^ .,.,.„ ,. atedfortiiepay- and legacies, either by the party in his liietime ment of debts and . . . Jr J legacies. or by his will, in what manner such payments shall be made. And such debts are to be paid *in ceowaK Anonymous, 2 1 1- Ch.Cas. 54. gradu, both bond creditors and creditors upon simple contracts ; and if one of the trustees who is to sell the land is a bond creditor, yet he has no preference to the rest; and the reason is, be- cause the lands not being originally a security for the payment of those debts, they become so by the appointment of the owners, but '\cujus est dare, ejus est disponere; and the owner having appointed them to the payment of all his debts, no one debt which is equally upon a just and equitable consideration can be preferred before the other ; and this as well where the conveyance is by act executed in the person's lifetime as by devise; for the devisee was not liable to the bond creditor, though the heir was, but the estate by devise would be totally exempt from creditors if the trust had not been annexed to it; and the trustee in this * Equal degree. f The donor may dispose of what he gives as he thinks proper. See this maxim explained and illustrated in Grounds and Eudim. of L. & E. p. 44. 310 LEX PRiBTORrA. case having no lien upon the estate by his bond, must take it under the trust, which brings in such trustee and bond creditor *in cequali gradu with the rest; and this as well since the stat- ute of 3d and 4th W. dt M. ch. U, sec. 4th, as before. For though that statute provides against the voluntary disposition of lands to the disappointment of bond creditors who have the lien upon the heir, and subjects the devise to the payment of the bond debts, yet there is an exception in that statute as to the disposi- tion of lands for payment of debts and chil- dren's portions, which the testator, by contract in his lifetime, was obliged to pay ; and there- fore simple contract creditors are *in cequali gradu with bond creditors, as they were before the making of that statute. Gosienr. Dor- Before tMs statute^ where lands were given Powers case, ' for the payment of debts and legacies, the lega- Nels.Ch.Kep. . ^ '' . , ° ' ° 202. cies came in equal degree with the debts that were not judgments or a real lien upon the lands ; because the debts not having an orig- inal security upon the lands by the rule of ■[cujus est dare, ejus est dispanere, the testator was allowed to bring in the legatees §tw aiquali Hickson v. With- jure with his bond and simple contract cred- am, Ch. Cas. 248r. , , ^ , ,^ ^ . , ■, , , K?pTemp- itors, though my Lord isottingham doubted Froenj.jius'iWhit- thereof; but now, since the statute has taken ton V. Lloyd, Ch. ' ' m'fnona'v^-' ^^^y t^i® power of making voluntary convey- ch^cas. 04, Anon, ances in derogation of bonds, the bond cred- itors are to be preferred to the legatees, but the simple contract creditors remain as they were before in chancery, since the statute has * Equal degree. f The donor may dispose of what he gives as he thinks proper. § In equal right. LEX PE^TOEIA. 311 made no alteration as to them. Wolestoncroft V. Long, Gh. Cas. 32; 3 Ch. Rep. 12. Therefore, if a man leaves three hundred cuaiiis ». cns- pounds debt upon bond, three hundred pounds v-™\ 325, p.9^^*' 1 ^ / n ,1 1 , , Gilb. Eq.Bep.2G,• Up0n simple contract, and three hundred Pre. ch. 407; 11 • -1 1 1 1 /» Goslen v. Dor- pounds legacies, and had before the statute ney, vern. 482. devised his lands for the payment of his debts and legacies, and the land devised had been worth six hundred pounds, there would have been two hundred pounds to the payment of the bonds, two hundred pounds to the pay- ment of the simple contract creditors, and two hundred pounds to the payment of the legacies. But now, since the statute, the whole three hundred pounds must be paid to the bond creditors, which must be subtracted from the legatees, for the bond creditors must have the whole before the legatees can have anything ; and therefore the bond creditor^ will have the whole three hundred pounds, the simple con- tract creditors two hundred pounds, as before the statute, since it makes no alteration * quoad the dispositions made to them, and the lega- tees shall have one hundred pounds, since noth- ing can be disposed to them till the bond cred- itors have their debts answered, and therefore the one hundred pounds must be taken from the legatees' share to answer fully the bond creditors. Where lands are devised to the executors for the payment of debts, here the trust being declared for the payment of debts, it must be understood for the payment of all the debts, and therefore all the creditors must come ^in *A3 to. f In equal degree. 312 LEX PE-ETORIA. cequali gradu, according to the intention of that trust, though Vernon doubted. But if lands be devised to executors to be sold, or a power devised to them to sell, there the money arising from the sale is assets, and shall be distributed according to the course of administration ; and there a bond creditor shall be preferred to a simple contract creditor, be- cause, it being only the intention of the testator to make the lands personal assets, equity must follow the intention of the testator, and distrib- ute them in a course of administration. How far a ored- We must now considcr how far the creditor itor may follow _ a i • • i • i assets. may lollow the assets. And it is plain that, Paget ». Hoskins, '' . ^ Giib Eq.Rep.ni; wherever the executor or administrator disposes Pre. Ch. 431. . . . of the assets without valuable consideration, there the creditors, or whoever is entitled by the statute of distributions, may follow the as- sets, for such disposition is fraudulent, and therefore is as if they were in the hands of the executor ; and he in whose hands they are, being *particeps criminis, the creditor has a demand against him. Paget I'. Hoskins, But if they were sold for valuable considera- tion, the creditor can never follow them, because it is the province and office of the executor to make money of the assets to the best advan- tage, and none would buy if a vendee -\bona fide were subject to the demand of creditors ; so that the buyer is not to look to the application of the money. If the husband leaves a wife and children, and leaves one third to his wife and the rest to the children under age, and the wife marries * Criminally concerned. f Who was honest. LEX PRETORIA. 313 again, and the second husband before marriage takes an account of the wife's share, and settles in proportion, yet he will always be subject to the demands of the children ; so that, if any part of theirs be lost, he will be obliged to make it up in proportion to his own share, even after the death of his wife, because he comes in with notice of the infants' share, and into an account unliquidated, and which cannot be closed during the infants' minority; and therefore he takes the money that is due to his wife under the cas- ualty of what that estate shall be when the in- fants come of age, for his is an unsettled share during the infants' minority. If a man devises lands for the payment of his what debts to be . 1C1 1 P"'''^ when one debts in general, the vendee ot the estate need purchases under not see to the application of the money, but the Tompidnsi;. ^'^ _ _ , Tompkins, Glib. trustee only. But if it be for the payment of any q^-.j%p- '"^ ^'■®' particular debts, or for the payment of debts in a schedule annexed to the conveyance, there the vendee is obliged to see to the application of the money, because, if the trustee sells more than is sufficient to pay the debts, the purchase is not to be affected, unless he be guilty of fraud ; for the trust is contained in the deed under which he claims, and therefore the payment of the money is to be made in the manner that the deed directs, since that is his title. But where the trust is for the payment of debts in general, there he has no notice of such debts by the trust deed, and therefore is to pay the money into the hands of the trustee, who is to see to the application of it. But if creditors prefer a bill against the 314 LEX PRiETOEIA. Draper's Com- trustee, he caiinot purchase * pendente lite with- Crn.''e(f2%037'^ out seeing such creditors discharged; aud after Eq.Abr.257, p.2. ^^^.^^ of a Creditor, it is uecess-Avy "^ pendente lite to see the money applied, lest there should he a hill preferred against the trustee ; hut it is not necessary to see it applied unless there he a hill filed. And if a man devises lands for the payment of legacies, there the vendee must see to the discharge of the legacies in the will, hecause that is likewise part of his title. Eioer V. Corbet, 2 Peer. Will. 148; 2 Eq. Abr. 449, p. 2. But as to personal goods and leases for years, the vendee -fbonajide is discharged from see- ing to the application, because it is the office of the executor to dispose of them ; and it would hinder the executor from sale of the assets if a creditor, after they were sold ^bona fide, could put the vendee to trouble. WHEN A LEGACY SHALL BE LOOKED UPON TO BE DE- VISED IN SATISFACTION OF A DEBT. Digest Lib. 30, L. And by the Justinian law, if a debtor devised 28,29; Swinb. 665. ,,. tjji i i. c • j. to his creditor the sum due, or anj' part oi it, it was \iinutile legatum, unless the legacy was far more in quantity, or the debt was to be paid at a time to come, or upon condition, and the legacy was present and absolute, or that there was an easier action for the legacy than the debt. For they looked upon the will as a direction to the heir how the estate f in toto was to be dis- posed of, and therefore a disposition to a man who was entitled to a part of the estate was ♦Pending the suit. f Honestly bo. g Honestly. II An useless legacy. Jin general. LBX PRETORIA. 315 but giving him his own, unless there was any- more advantage in the legacy than in taking it as a debt. Just. Inst, de Legatis, lib. 2, tit. 20, sec. 14;* Vinnius, 437; Vandyivater, 30; Barth. de Legatis, 231 ; Sich. 627 ; Outhbert v. Peacock, Eq. Abr. 204, p. 8; Salk. 155 ; 2 Vern. 593; Sioinh. 555. But the canonists have expounded these wills Leohmerj;. sia- as the civilians did the tiestamemto militaria:^S^-^\i''E.<^' .1 . • , ,. , . . „ -^ Abr. 350, p. 5,- that IS to say, according to the intention of the cathbertj). pea- ^ cock, above. testator. And they looked upon the intention of the testator, when he devised the same sum that was owing, to be merely upon a principle of justice in compensation of the debt, and not from a principle of kindness and generosity to the legatee, unless he had expressed himself that it w-as over and ahove the debt. And this presumption they founded upon the similitude of the sum that was owing, and of what was ap- pointed to be paid by the legacy, which yet might be controlled by opposite presumptions. And our resolutions have followed the canon- ists ; and therefore we have resolved that if a less sum than the debt is devised, that shall not * Si debitor creditori sua, quod debet, legaverit inutile est ie- //atum, si nihil plus in legato, quam in debito : quia nihil awr- plius per legatum habet. Quod si in diem, vel sub conditione, debitum eipurS legaverit, utile est legatum propter reprcesenta- tionem. If a debtor bequeaths to his creditor what he owes him, it is an useless legacy, if the legacy be no more than the debt, because he reaps no benefit from it ; but if he had bequeathed him a debt due at a day certain, or upon condition, the leg- acy would have been valid by reason of the representation; that is, of the legacy's becoming due before the debt. f Military testaments. 316 LEX PRETORIA. Gofton c. Mill, 2 Vern. 141; Pre. Ch. 9. Cratimer's case, above. See after, 328. Davison v. God- dard, fiilb. Eq. Rep. 66 ; 2 Bq. Abr. Gt, p. 1; 217, p. 1; 250, p. 3; 351, p. 7; 352, p. 10, in margin. Cuthbert v. Pea- cock, Bq. Abv. 20i, p. 8; 2 Vern. 593; Swinb. 655; Salli. 166. be looked upon as a compensation for the dehi, because a less sum cannot be a compensation for a greater ; and by consequence it will be a leg- acy over and above the debt. Menochius de PrcRsumptionibus, 362-366; Oranmer's case, 2 Salk. 508; 2 Eq. Abr. 350, p. 2. So if a man gives a legacy, and afterwards happens to contract a debt the same with the legacy, it will not be in satisfaction, because he could not have it in contemplation at the time of making his will to satisfy a debt not in being, and therefore that could not be the intention of the testator. A., indebted to B. in two hundred pounds, makes his will, and devises five hundred pounds to B. This is not a devise of five hundred pounds over and above the two hundred pounds. But the executor may deduct the two hundred pounds and pay the remainder, being three liundred, to A. A. devises ten pounds annuity to B., and makes G. executor. C. makes D. executor, and devises ten pounds annuity to B. D. afterwards makes a settlement, and secures an annuity of twenty pounds on B,, adjudged to be in satis- faction of the two annuities of ten pounds, and not a gift. Crompton v. SaU, Eq. Abr. 205, p. 9 ; 2 Will. Rep. 553. So if a man has three nieces. A., B., and C, and owes to A. one hundred pounds, and gives to each niece by will one hundred pounds, this shall not be in compensation of the one hundred pounds due to A., because it must be supposed that he had the same kind intentions towards A., B., and 0. , all in equal degree ; and that he LEX PRETORIA. 817 had not a less kindness for A. because she had lent him her money, and that therefore he can- Meredith r, not be construed to give gratuitously to B. and TofpTsVeiib/' „ .,,,.. -.Y . . ,1 Eq. Eep.VO; Pre. U. without eiving likewise in the same manner ch. 312; 2 Vem. . 448. to A. For though the same sum is devised to A. that is due to her, yet it shall not be thence presumed that it was a compensation according to the ordinary rule, because then she would have nothing from the testator, though in equal degree of relation and kindness with the other two nieces. But if a greater sum be given by way of leg- sii-JohnTaibotu. ^ , . , , .111 DukeofShrews- acy to the creditor than his debt, it should seem bury, O'lb- Eq. ■' . . ' Kep.sg; Pre. Oh. to be in satisfaction of the debt, Unless the con- 304: 2 Eq Abr. ' _ _ ,S52, p. 10. trary be proved ; because, though it was said by Chancellor Harcourt that a court of ^equity shall not tell a person who gives a legacy that he pays a debt, yet the reason seems to be stronger on the other side ; for the whole will is to be construed according to the intention of the testator; and when the testator gives a sum to the creditor larger than his debt, and the *residuum to another, it seems to be the testa- tor's intention that the legatee in all events was to have no more out of his estate. For the tes- tator knew the legatee to be a creditor, and if he had intended him his debt over and above the legacy, he would have expressed himself to that purpose in his will ; and therefore there is no room to cut off any more from the * residu- um than according to the expression in the will, for the silence of the testator cannot be pre- sumed in this case to diminish the * residuum. But in these cases the intention of the testa- * Residue, 318 ' LEX PRETORIA. tor may be explained by proofs ; for wherever the meaning of a legacy is explained upon a conjecture and presumption, there it is supposed to stand indifferent to one sense or other, were it not for such presumptions ; and where a will is expounded upon presumptions, they allow of proofs for the exposition of it; for if the sense of the will be so indifferent to two inter- pretations^ the presumptions are to incline the judge to one sense or the other, much more ought proofs to do it, which are better than any presumptions. Sir John Talbot V. But if a legacy were given upon a contin- shiewsbury, gency, which if it should happen the legacy So likewise if the would taltc place : in such case, though the Erovision had ' n i i i n eentydeed. contingency docs actually happen, and the leg- '■ay. Eq- A^.. 175, g^gy. thereby come due, yet it shall not go in Eo^'pee/wiif ''' satisfaction of the debt, because a debt which 663,'p!?^Lucas, is certain shall not be extinguished by an un- 39, 528. certainty and contingent recompense ; for what- soever is to be a satisfaction of a debt, ought to be so in its creation, and at the very time it is given, which such contingent provision is not; and therefore it cannot be supposed to be the intention of the testator to give such a con- tingent recompense as a satisfaction for a cer- , tain demand. This rule will likewise hold if such provision were made by deed. On a treaty of marriage, articles were entered into whereby seven hundred pounds, which was the wife's portion, with seven hundred pounds more to be added by the husband, were to be laid out in lands to the use of the husband and wife for life, with the remainder to the LEX PRiETORIA. 319 issue male and female of that marriage, re- mainder to the right heirs of the hushand, who dies without issue before any purchase made pursuant to the articles^ having made his will, whereby he devises his personal estate to his wife and his real estate to his two nephews, one of whom was his heir at law, and then makes his wife executrix, but takes no notice of the fourteen hundred pounds. The nepbews bring their bill for the fourteen hundred pounds which they ought to have, as they would have the land in case the fourteen hundred pounds had been laid out in a purchase ; and upon a computation made, it appearing that the wife Linghen «. sow- ,, , °i „, ray, above; Ket- had seven pounds more annually out ot the tieby i;. Lamb 2 *residuum than she would have had out of fourteen hundred pounds, that sum was decreed to the nephews ; for it being bound by the arti- cles, was in equity a real estate, and the wife was not to have both the * residuum and the profits of that real estate during her life, upon the foot of the articles, but was to make her election which she would take; for the * resi- duum is always a sum which is to be employed for the payment of debts, and in propriety of speech there is no * residuum till after the debts and legacies are paid. And the wife here being a creditor for the sum that was to be laid out in the land to answer her annuity, which debt must be answered out of her * residuum, if there be sufficient to answer it, as there was in this case ; and if there was not, the whole * residuum must be first applied to the dis- * Eesidue. 320 LEX PRETORIA; charging of sucli debt, before any of the specir fie legacies can be broken in upon. Biandyi). wid- A man givcs his bond to leave his wife five 2Eq.'Abi-. 352, p.' hundred pounds, and dies intestate; and the 324. ' ' wife's distributive share comes to five hundred pounds: this is in equity a satisfaction of the bond. When lands de- If a man devises lands for the payment of his ment of debts debts and legacies, and after payment of debts shall be dis- ^ , . ° , ' , . , . .„ , charged. and legacies then over to his heir, it the trus- Tompldns?). ° ' . Tompkins, Giib. tecs raise the money and embezzle it, yet the Eq. Eep. 90; Pre. ■' ' •' Oh. 3SJ7. heir shall not have the lands till the debts and legacies be paid, because they are not devised to him till after the payment of the legacies ; and therefore the lands have not borne their burthen till after payment made to the legatees. But if a man devises the rents and profits of his real estate to trustees or his executors for the payment of debts' and legacies, and at the age of twenty-one years to his heir, there, if the trustees or his executors raise the money and embezzle it, the land however is discharged when the heir comes of age, because the money being to be raised within a definitive time, the land afterwards .is devised as freely and gra- tuitously to the heir as the profits of it were devised within the definite time to the payment of debts and legacies, and therefore, having once borne its burthen, is forever discharged. Balk. 153. So if the devisc be that the money should be raised out of the lands by trustees for the payment of legacies, and afterwards the lands are devised over, and the trustees raise the money and embezzle it, there the land hath LEX PRETORIA. 321 borne its burthen ; because by the interest of the devise the money is to be raised only, and then to be intrusted with the trustees^ and therefore the land shall afterwards go to those to whom it is devised over. But if the land be devised oVer after the raising and payment of the money to legatees, there the land hath not borne its burthen till after actual payment. If a man devises specific legacies and pecu- Masters v. Mas- niary legacies, , and the estate falls short to 322^ pTi3?'362,'^|>. answer the pecuniary legacies, they shall abate- win. Rep. 421. in proportion ; but nothing shall be abated from the specific legatees, because the specific legacy transfers the dominion of the thing itself, and therefore is no part of the personal estate to answer what is charged upon it by the tes- tator. Sayer v. Bayer, JEq. Ahr. 200, p. 9, 298, p. 1; 2 Vern. 688; Gilh. Eq. Rep. 87; 2 Eq. Ahr. 553, p. 6; Pre. Cli. 392. So if he devises all his personal estate in Dale, and devises a pecuniary legacy, and has another personal estate sufiicienf to answer it, the pecuniary legacy shall go out of such per- sonal estate, and the specific legacy at Dale shall not be touched, though they were not enough out of the other personal estate to an- swer such pecuniary legacy ;. because the be- quest of the personal estate at Dale is as if he had enumerated all the particulars there and transferred the ownership of them ; but if he had said that such pecuniary legacy should come out of all his personal estate, or words tantamount, there such pecuniary legacy, in case of a deficiency in the other part of the 21 322 LEX PRiETORIA. personal estate, shall come out of that specifi- cally devised. So if a man devises his personal estate at Dale to A. and his personal estate to B., and devises a pecuniary legacy to C, such pecuniary legacy shall come out of both, if there is no other per- sonal estate, because it must be supposed he in- tended to subject both to that legacy ; otherwise he must moque the legatee. Kapv.Powei.Pre. If a legacv be left to a man of full age, the Oh. U,- 2Eq.Abr. , ^ ^^ • . i r.. j.1, 604, p. 2. executors shall answer interest, aiter the year from the testator's death, from the time that it is demanded by the legatee, because it is a deposit in the hands of the executors for the benefit of the legatee, and that deposit must be answered upon demand. Katoiiff V.Graves, But if it be a legacv to infants, there it shall Eq. Abr. 93, (K,) ^ „ p. 3; Vein. 196; 2 be answered with interest from one year after Oh. Cas. 152; •' Smell r Dee, 2 the death of the testator, because the executor Salk. 416; Eq. ' Abr.?96, p.5. jg considered as a trustee, who ought to act for the benefit of the infant, and who ought to put out his legacy under the decree of the court. A legacy left to infants, to be paid when they come of age, bears no interest till the time of payment, unless the executor weakens the se- curity, and there he is chargeable with interest. Where the legatee is not to be found, there the legacy shall not bear interest. If a father devises portions to his children, payable when they come of age, and makes no provision for their maintenance, they shall have interest in the * interim, because the father was obliged to maintain them if he had lived ; f oli- tcr if a stranger had made the devise, because * Meantime. t Otherwise. LEX PKiETORIA. 823 he vfus not obliged to maintain them. Attorney General v, Thompson, Eq. Abr. 301, p. 2 ; Pre, Ch. 337. But if more profit be made than the common interest, no more shall be answered to the infant than such interest, because the executor ran the hazard at his peril. But if a legacy be devised to a man of full age, %solvendum infuturo at a day cert^ain, there the executor shall answer interest from that day, because it is the will of the testator that then it should be tendered by the executor to the lega- tee ; and as he has the benefit of the delay of the payment, so he must have the burthen of the interest, if it be not then paid. If a man gives a present legacy, and charges Atkins v. Daw- ., . , , , . beny, Eq. Abr. 46, it upon a reversion, expectant upon an estate p- o ; Giib,Eq. for life, such legacy shall carry interest from the death of the' testator ; for being not charged on the personal estate, the executor cannot be allowed the usual year for collection of assets, and it is an immediate burthen upon the rever- sion itself, and therefore must carry immediate interest; for if the testator had intended other- wise, he would have raised the charge after the determination of the estate for life. And there is no reason to oblige the legatee to demand it, since such demand would be fruitless, the leg- acy not being in the hands of the executor, but only charged on the reversion. The court of equity will never allow a father Doyiyti.Toiferry, or mother to receive legacies bequeathed to Paimer'». Trevor; their children, though they are guardians by Vem.26u '^' ' nature to them, and have decreed the execu- * 1\> be paid hereafter. 324 LEX PRETORIA, tors to pay the legacies over again which they had formerly paid to stich parents, even after an acquiescence of an infant after his full age, upon the promise of the parents to pay the legacy ; for the filial duty shall not destroy the right of the child, Dawley v. Ballfrey, Gilb. Eq. Bep. 103; Will. Bep. 285. If an executor pays a legacy in his own wrong, where the personal estate will not an- swer, he shall make the legatee refund, because the legatee takes the legacy under the trust, and therefore it is that the legatee does not give security. Where a man devises several legacies, and makes no disposition of the * residuum, and after acquires a very considerable personal es- tate, and does not alter the will, he does not die intestate as to the new acquisitions, but the executors shall distribute them to the legatees proportionably. CordeFi v. Noien, If a man deviscs that his debts, legacies, Eq. Abr. 244, p, 5; . ) o J 2 Vern. 148; Pre. and tuneral expenses shall be paid in the first Ch. 12; Trott ". , -"^ wg"""' f ve*'"^' V^^^^> ^'id then proceeds to dispose of his real EeMiv'Sch ^"'^ personal estate, if the personal estate falls gJ'p^JEq-Abr. 'short, the real estate shall be subject to the payment of debts, legacies, and funeral ex- penses, because that is the charge in the first place, whatever comes after. Gofton V. Mill, 2 If a man owes a sum of six hundred pounds, Vern. 144; Pre. i i • r> r J ch.9; saik.i54, and devises four hundred pounds in full satis- faction of all the creditor can claim, and then devises his lands for the payment of his debts, and the creditor proves six hundred pounds due, though the debt was barred by the statute * Residue. LEX PRETORIA. 325 of limitations, yet it shall be paid out of the lands, because the legacy cannot be a satis- faction for a greater sum, and it remains a debt, notwithstanding the statute ; and there- fore the devise being for the payment of debts, it is in trust for this debt as well as other debts. If a legacy be devised to a *feme covert, who Palmer «. Trevor. ° •' •' ' Eq. Abr. 68, p. 6 ; lives separately from her husband, and is not Vern.2ei. maintained by him, yet it shall not be taken to be for her separate use, unless it be so expressed in the will; and in such case, if payment be made to the wife, it is ill, and it shall be paid over again to the husband, because, her living separately from her husband does not destroy the legal right of the husband. A man devises the ^ residuum of his personal Residaum. Brick 6r tj ^^hftl" estate to bis cousin A., and B., her sister, and ley, vem.' 233. his cousin C. , and D. , his wife, equally to be divided between them. It was decreed that the husband and wife should carry off a third part only, because there could be no division between husband and wife, and therefore there would be no equal division among them all ; and the wife's name is put in to make a survivorship to her of the part bequeathed to the husband. A man devises to J. 8. Black acre which was in mortgage, or the value thereof This was decreed a devise in fee, and that if the executor had assets sufficient to pay off that mortgage and other debts. Black acre should come clear to the devisee ; for devising the value thereof was an intention that so much should come out of the testator's personal estate, in * Married woman. f Residue. 326 LEX PB^TOEIA. case the mortgage was foreclosed, and by con- sequence 80 much shall come out of the personal estate as will redeem it. whitmore v. Cia- A man dcviscs the * residuum of his personal Ten, 2 Ch. Eep. ^ „ , m • -i Tt j 382; 2Vent367; estate to^.,for the use of his onlv son B., ana Vern.326, 347; 2 ' , , ,. , • i -i j cii. Gas. 107. his heirs lawfully descended from his body, and for the use of the issue, male and female, of the bodies of his sisters, (and names them,) in case his son should die in his minority, without issue of his body lawfully descended, and then appoints his son executor, and afterwards ap- points A. executor during the minority of his son ; the son died without issue above the age of eighteen, and under nineteen years of age^ and had never taken upon him the executor- ship, but a little before his death made his will, and bequeathed all to his wife ; and the question was, whether she or the children of the sister should have the * residuum; and de- creed for the wife. Because that, when the per- sonal estate is devised to a man, and if he dies without issue during the minority, then over, it must be understood the minority of the civil law, by which such estates are governed ; for if he arrives to the full age by that law, he may dispose of his personal estate, and it was the intention of the testator that when the devisee should arrive at the age in which he might dispose of it, the contingency should fall off, and such disposing age as to the personal es- tate is that of fourteen years. A man possessed of a term for ninety-nine years, determinable upon the life of A., devises a rent out of it to B., without limiting, any es- * Residue. LEX PRiBTOEIA. 327 tate. The only question was whether, if 5. died during the term, the rent should determine, or whether it should continue during the term; and decreed it should last during the term; because the devisor having but a chattel in- terest, he could not create a freehold rent out of it ; and since the devise of the term to A. would have carried the whole term to him, and not an interest during his life only, therefore a devise of the rent which is in nature of a de- vise of part of that interest shall carry that rent during the whole term. If a man leaves a *feme executrix, and she where the baron , „ .is answerable for commits J devastavit, and afterwards marries the wife, and where not. and dies, the husband is not answerable lor that 'f devastavit of the wife, though he had a fortune with her ^aliunde, for the f devastavit is only a debt to the assets, and the husband is only answerable for the debts of the wife during the coverture, while she is only one person in law with him, and not afterwards. But it must be recovered against her executors and admin- istrators ; and the portion of the wife which arises ^aliunde must be onerated during the coverture, or else the law gives it to the hus- band upon the marriage; for the husband is only answerable for the debts of the wife, as he is for the injuries which she does, which is only during the coverture, and afterwards her rep- resentatives must answer. But if the husband after the coverture re-: Paget b. HosWns, ceives any of the goods and chattels of the tes- iiii'Pre. ch.'isi. tator II in specie, or any money of his arising out of his effects, and embezzle them, he shall * Woman. f Waste. g Other ways. t| Specifically. 328 LEX PB^TOKIA. Satisfaction. See 316. answer for sucli embezzlements, because it is Ms own act ; for whatsoever is done with the goods of the testator during the coverture is the act of the second husband, for which he is responsible. So also if he has money or goods of the tes- tator's in his hands after the coverture, he is answerable for them as executor * de son tort, and by consequence in such cases he is to be decreed to answer for all the personal estate of the testator which he or his wife hath received during the coverture, for whatever onerates the assets onerates such assets as he received during the coverture. HA. owes B. two hundred pounds, and .S. de- vises to A. five hundred pounds, and the residue of the estate to 0., this is not a devise of five hundred pounds over and above the debt, be- cause A. would have then in effect seven hun- dred pounds, whereas B. intended him but five hundred pounds, which would be contrary to the intention of the testator. Devises. A father by his will leaves portions to his Chamberlain v. i m i j. ^ i • ^ t a ciiamberirLin, Oil. younger Children out 01 his personal estate, A'br.43,'p- 2; 405^ aud dcviscs hls real estate to his eldest son for p. 4; 2Preem. 34, . . ■, „ 62, 141; Davenish hte, With remainders over, and afterwards D. Baines, Pre. /, n • i i • ch. 4; 2Eq.Abr. finding that his personal estate would not an- swer their portions, acquaints his said son with it, and with his intention of altering his will, and laying the portions on the real estate, to make up the deficiency of his personal estate, which the son dissuades him from, and promises to see the portions paid. If the son confesses such promise in his answer, the court will ouer- * Of his own wrong. LEX PRETORIA. 329 ate him with the portions, as far as the real and personal estate will go, because he has made that promise, and has a consideration for being just to his undertaking, and there is no fear of fraud or perjury in this case, where the promise is confessed. But if he denies it, it cannot be proved, for that would be to overturn the w^ill by parol proof only. If a legacy is given to a woman on condition Restraint on mar- she marries with the consent of the executor, deftseove-!^^ " ■u 1 J. J.1 _p i , , T 2 Peer. Will. 62S, When she comes to the age oi twenty-one, the 63i; 3 Peer. wm. condition is discharged, and she is entitled to the legacy forthwith, for the law then looks upon her as a person capable of disposing of herself. \ Upon a marriage settlement it was agreed Distribution. that if there were no sons, and but one daughter only, she should have eight thousand pounds, if two daughters they should have twelve thou- sand pounds, if three daughters twenty thou- sand pounds, to be equally divided between them; and there were three daughters, but one died, and decreed that the two surviving daughters should have ten thousand pounds apiece, to wit: their own part and their sis- ter's upon distribution,' because the sister's part was vested, and therefore must come to the surviving sisters, as next of kin upon the statute of distribution. A man voluntarily charged his estate in S. Reeve i. Reeve, 2 . , , ,, , 1 f. 1 • n 11 Vent.363; Eq. With three thousand pounds tor his daughter Abr.22i,p. s; 335, ■, n 1 ,.^ 1 ,1 , P.l; Vern. 219; by a first venter, and afterwards settled that 2Eq.Abr.7i9,p.i. estate on a second wife for her jointure, after- wards taking notice of this charge by his will, and that his wife's jointure might not be incum- 330 LEX PRETORIA. bered by it, desires that his wife should have her election to refuse that jointure, and take another estate of his in Y. instead of it. The wife refuses the estate in Y., and the daughter brings her bill, and has Y. estate made liable to her portion. And the reason is, that when the Y. estate was devised to the wife to exon- erate her jointure, it is the manifest intent of the testator that the wife should have her full jointure, and the incumbrance upon the estate in 8. have its effect ; therefore, when the wife, who is a purchaser for value, refuses the join- ture in Y., and thereby defeats the incum- brance on the other estate, as she may, the intention of the testator must be fulfilled by giving the incumbrances satisfaction out of the Y. estate, because such devise amounts to a charge of that incumbrance upon the Y. estate ; for the wife's refusing shall not defeat the in- cumbrance, since the husband has devised the Y. estate that it might have its effect, and mor§ especially since it is a provision for a daughter whom by the law of nature he is obliged to provide for. ciaxton I), ciax- A man having made a jointure on his wife p. 7'; 2 vern.'i62,' of Certain lands, afterwards devises them to A. in fee, upon condition he paid several sums to several persons at certain days, and if he failed in such payments, then over to B. and his heirs on like terms and days. The money being near due, and A. not having 'ready money, and being afraid of losing his estate, brought his bill against the jointress and those who were to come in upon his default, to have liberty to sell timber off the estate to pay the LEX PRETORIA. 331 money; and it was so decreed without any difficulty, for if tlie jointure was made with- out impeachment of waste, the timber belonged to him. A. devised his lands to B. in fee, conditioned Grimstoneu. to pay twenty thousand pounds to his heir atAbr. io8,"p^' '^' law by several instalments. B. failed in hisso-i. ' ' payments, and the heir thereupon taking advantage of the condition, entered, and A. brought his bill to be relieved against the rigor of the condition, and he was relieved upon the terms of paying interest for each particular sum from the time it became due ; for wherever there is a condition broken for which a compensation can be made, a court of equity will relieve against the forfeiture, because the forfeiture is a penalty which is the subject-matter of relief. A man seized of a copy-hold of the nature ofBradiey u. Brad- Gravelkind, and a considerable personal estate, makes his will, and thereby devises several sums of money to several of his children as a provision for them, and charged his copy-hold, and also his personal estate, with the payment of his debts and legacies ; but the copy-hold not being sur- rendered to the use of his will, one of the younger sons resolved to take advantage of it, and so brought his bill to have his entire legacy out of the personal estate, which would, in a great measure, have frustrated the provision for the younger children. But the court would not decree him his legacy unless he would surren- der his right in the copy-hold, and agree to have it charged according to the will, which he accordingly agreed to ; for the copy-hold being 332 LEX PRETORIA. part of the fund, and he consenting to make it liable, it must go in average with the rest of the assets. But if he had not consented, it seems a court of equity would have made it good as a defective conveyance, if the personal estate had fallen short to answer; and if the personal estate had been just suflficientj the daughter must have taken as much out of it as was to the value of the copy-hold^ and then the male children would have taken the copy-hold as part of their shares. A man by his will devises his lands of inherit- ance to his heir at law, who was his brother, in fee, and then devises ten pounds to A., to be paid by his executor within five years next after his decease, and two hundred pounds to B., to be paid by his executor within five years next after his decease, and then appoints his heir at law his sole executor, desiring him to see his will performed according to the trust and confidence he reposed in him. The personal estate falling short to answer the legacies, the question was, whether they should be charged on the real estate; and decreed they should, because it ap- pears plainly on the face of the will that the testator intended the lands should be charged by devising them to his heir, and by desiring him to see his will performed. Attorney Geneiai * Wherever any thing is given to a charity, c. Baxter, Eq. , , ., ■ , ■, .„ , , . Abr. ii(i, p.o; and no charity appointed, or it the chanty Vern.248;2Vern. , . , . . , "^ 106; Duke on which IS appointed be superstitious, there the Charitable Uses, *■ "- *■ ' 84,110. king appoints, and in a case of superstitious use the appointment shall 'be to a charitable * See stat. 9 Geo. 2, o. 36, concerning devises to oharitabla uses. LEX PRETORIA, 833 use, *ejusdem generis. Tenant in tail may dis- pose of a charity out of his lands without fine or recovery, or even by will, by virtue of the construction that has been made on the 43 Eliz. c. 4. But if a man disposes of a charity by will, and such will wants the necessary circum- stances required by the statute of frauds and perjuries, it shall not operate as an appoint- ment. Gilb. Eq. Rep. 44. If a nuncupative bequest, not reduced into jones ». Nabbe, writing according to the statute, be confessed auk Eq.Kep.uo! in the answer of the executor, it shall be paid out of his t residuum, because in such case there is no danger of perjury. Twenty pounds is devised to a boy to bind Bartow ». Grant, . -.IT-IP ,--. -1 Vern.25S;2 him apprentice, and he dies-beiore he is bound, Fieem.so. his administrator or executor shall have it; because the sum is actually devised to him, and the act of God shall not take it out of him. If there be an executor in trust for infants who is empowered to lay out the personal estate in such manner as he shall think most for their advantage, and accordingly he places out one hundred pounds of the said personal estate in the hands of a person who is allowed to be good security for such a sum at the time of lending, and takes his bond for the money, and the bor- Terry u Terry, Glib. Eq. Rep. 10; rower proves afterwards insolvent, the executor Pre. cb. 273, shall answer for the sum lent, being lent with- out the decree of the court. This is the present doctrine, because the court is reckoned to be the universal guardian of infants, and the money is put out without consulting with their %cu,rator. * Of the same nature. f Eesidue, I Guardian. 334 LEX PRETORIA. But quere whether this should not take another turn, lest persons should be discour- aged from being executors or trustees for infants, viz : if the sum put out be put out with common prudence, and ^s carefully as the executor or trustee would put out his own money, and without any premium to arise to such executor or trustee, or if the sura be so small that they could not apply to the court without swallow- ing up the greatest part of it, that there it shall be allowed in account to the executor or trustee in case of insolvency ; but if the execu- tor or trustee fail in any of those circumstances, then they themselves run the hazard of the money if it be lost. If an executor or trustee lays out the money at interest, he shall have the benefit of it, be- cause he runs the risk if he were solvent at the time of lending ; but if he were insolvent, then the cestui que trust shall have it, because he was to bear the loss. Bromjidd v. Wytherly, Eq. Abr. 239, p. 24, 398, p. 7; Pre. Cli. 505. Donatio causa If there be a * donatio causa mortis, which is Jones e. seiby, a gift fin prcBseuti, to take effect after the do- Pre.Oh.300:2Bq. ,,,.,.11 ■,. , , Abr. 573, p. a. nor s death, it the donor dies, the donee has the interest; but if the donee dies before the donor, it reverts to the donor. But if such donation be of money, and there be a written will made subsequent to such donation, which gives the same or a greater sum, it will go in satisfaction of such gift. Bird r. Hooper, If a merchant gives several legacies to his children, and afterwards finding his estate to fall short, deducts several sums out of his * Gift by reason of death. f Immediately. Pre. Ch, 298. LEX PRETORIA. 335 younger children's legacies, without touching the eldest son's, the entry in his hooks, which makes the eldest son debtor for such sums wherewith he was set out in trade shall not be deducted out of his legacy, for such entries were made in the merchant's books that he might take a survey of his whole estate, and not to make deductions or alter dispositions to his children. If an executor pays a legacy, and the assets fall short, the legatees shall refund, because such legatee has more than his share of the assets in proportion to his legacy. So if an executor after the death of his testa- Rogers t^. Bam- tor wastes part of the assets, the deficiency Finch, oy, wo ; shall fall upon the whole, and the legatees ch.cas. us. must abate in proportion ; for it was the testa- tor who appointed such an unjust and improvi- dent trustee, and so the deficiency happened by the means of the testator, and therefore it must be supposed the design of the testator was ^ that such deficiency should fall in proportion to the legacies given. But if one of the legatees recover his whole legacy before the waste committed, the whole loss occasioned by the deficiency shall fall on the other legatees, because it was their own default that they did not likewise recover their legacies in time. If a man marries a woman who has several debts owing to her, and makes a settlement in proportion to such debts, and dies indebted to others before he had collected in his wife's debts, it seems that if the settlement be made in consideration of the marriage only, the law 336 LB? PRiETORIA, of survivorship shall take place in relation to the debts due to the wife ; because by the law they are after the death of the husband no part of his personal estate. But if the marriage set- tlement was in consideration of such debts, or if such debts were assigned by the settlement, then it seems they become part of the husband's- personal estate, and shall not upon his death survive to his wife, because he became a pur- chaser of them by his settlement, and there- fore the property of them is altered in a court of equity, and they are no longer debts due to the wife. Lister v. Lister, 2 Freem. 10; Eq. Ahr. 6, p. 9 ; Bep. Temp. Finch, 285 ; 2 Vern. 68. Nuncupative will. If a man makes his will, and a person takes 2Vern.99. "°^*' the legacies from the mouth of the testator, with only initial letters for the names of the legatees, these will not be good bequests as on a will in writing, and therefore, unless the so- lemnities required by the statute of frauds and perjuries to make a nuncupative will be ob- served, they are void; because the bequests cannot be made out but by the parol deposi- tions of the witnesses ; for as it is not substan- tive in the writing, it is unintelligible, and therefore such a will is not a written will, but a nuncupative will only, and by consequence, without the circumstances required by the stat- ute to a nuncupative will, it is void. Paraphernalia. The paraphernalia of the wife shall not go in exoneration of a debt affecting the heir ; for it is the necessary apparel of the wife, which the law gives her, and there is no equity in such case to alter the law in ease of the heir. Middleton v. Middleton, Ch. Bep. d11. LEX PRETORIA. 337 If a separate maintenance be made before separate mainte- marriage, or in pursuance of articles entered Go"dt. Rutland, into before marriage, whatever is bought by '^' ''•^''"'''•^^■ such separate maintenance money, as also all the money itself placed at interest, or in the hands of the wife, will be protected in a court of equity from the creditors of the husband. But the wife must prove that the money itself was raised out of the separate maintenance, and that the goods were likewise bought with such money ; otherwise, according to the law, all that is the wife's belongs to the husband. WiUson V. Pack, Pre. Gh. 295, 29Y ; 2 Eq. Abr. 155, p. 2. Where there is a trust of a term assigned to RatoUffe v. protect an inheritance, a court of equity will 93, (k,")'?. :i'; ^, , ' ., , Vern.190; 2 Oh. always govern that trust, so as to carry it tooas. 152; ciiap- , . , , , . , . , , man I.. Bond, Eq. him that has the inheritance, unless the person Abr. 241, p. 2; ' '- Vern. 188. who has both the trust and inheritance by par- ticular words or expression in his will does alter or change it. If he does, since he has the do- minion both of the trust and inheritance, he may disannex it. For as he might carve a term out of his inheritance, and devise such term to any purpose, as to legatees, or for the payment of debts or the like, so he may dispdse of the trust of this term, which was originally carved TyCHn v. Tyffln, , ,., , J Eq. Abr. 2«. p. 1; out of the inheritance, to the like purposes ; but 274, p. s; 2 ch. ' i 1 ; Gas. 4!), 65; Vera. if he does not, the trust of the term always goes i; 2 Eq^Abr. 275, ^ *^ _^ p. 2; 2 ireem. GO. along with the inheritance to whomsoever it de- scends, because this term was originally assigned only to protect the inheritance from mean in- cumbrances, and therefore the court of equity has no power to make use of the term to any other purpose, or to disannex it from the inher- 22 338 LEX PK^TORIA. itance to which it was annexed by the consent of all parties who had the dominion over it. TiavdAss; 2Vern. Bladen V. Lord Pembroke, 2 Vern. 52; Nels. 620; Pre. Oh. 253. -o -.^A Ch. Rep. 164. And therefore, where a man purchased an estate, and assigned a term to protect the in- heritance, and died, leaving a son by one venter, and daughters by another venter, and the son entered and died without issue, and a remote collateral relation who was heir at law to the son brought his ejectment for the recovery of the inheritance^ and came into chancery and desired that the temporary bar of those terms should be removed out of the way ; it was thought in so hard a case, where there were immediate descendants from the purchaser, that the term should be removed ; for though it was argued that a court of equity should not assist, but leave the heir to recover at law as he could, and that equity was to stand neuter where a remote heir came in to strip the chil- dren of the purchaser of the inheritance, yet, when they considered, on the other side, that if such resolutions should take place, all the rules of descent would be in the breast of the chan- cellor, since he could let loose or chain down those terms as he pleased, and that would make a diiferent rule of property in equity from that of the law of the land, they held that these terms ought in no case to be set up where the dispute at law was who was heir ; for the trust of the term is for the heir, and therefore such terms ought not to be militant against him ; and by consequence the court of equity, if it let the term loose against the heir, would act LEX PRETORIA. 339 contrary to the design of that trust, which was originally created for the defense of the heir, and therefore in such disputes the term must always he set aside, though the question should he upon a law of descents, which the court might not think in itself reasonahle. And in this case the person who makes himself heir, according to the course of descents, is entitled to have the term assigned to him in a court of equity. But if a man purchases an inheritance in the name of trustees, and takes a mortgaged term carved out of such inheritance in his own name, in order to protect the inheritance, such term will he liahle to the payment of his dehts as well as his other chattels, because the legal in- terest of such term being in him, it goes as a chattel to his executors or administrators in the same course with his other chattels ; and there- fore, since the law will take hold of it for the payment of debts or the performance of the tes- tator's will, a court of equity will not interpose to hinder it; for though the trust created at the time when it was assigned annexed it to the inheritance of the trustee, yet it did not take the legal interest out of the owner, and there- fore it remains as a chattel in him. INDEX. Abatement of suit, what, 174. of a suit when upon an injunc- tion, 194. Account stated, how to be plead- ed, 56. Account, where a person enters into an unliquidated one,with notice of the demands of others, he, shall be liable, 308. Act does not bind an infant, unless it be for his benefit, 138. Action, chose in, not assignable at law, as in equity, 169. Actionis lihellus, what, 23. Ad allegandum injure, wliat, 119. Administrators not barred by out- lawjy, 54. Adjournments may be made by commissioners, 130. over of piaintiif's cause, 156; whei-e it cannot, 157. Affidavit, upon a proper one, sub- poena may be returnable im- mediately in vacation, 28, 38. when necessary to be annexed to a bill, 51. when not necessary, 52. must be made and filed of the service of a notice of mo- tion, 97. necessary on a complaint to the court, 126. what, to obtain a new commis- sion, 128. Affidavit to enlarge publication must be sufficient, 142. when necessar jr to enlarge pub- lication, 143. tenor of it, and by whom to be made, 143. and certificate, what necessaiy to make an order absolute on a decree nisi, 153. of the service of subpoena to hear judgment necessai-y on motion to dismiss piaintiif's bill, 154. party's own, sufficient gi-onnd for an attachment for .abus- ing a person serving the pro- cess of the court, 208. when sei-vice of subpoena on de- fendant's clerk in court will be good, with the usual one, 209. to a bill, when necessary, 214. Age of witnesses, when not neces- sary to be inserted in the li- bel, 118. Agent, when service of subpoena on defendant's, is good, 210. notice to him will affect pur- chasers, 293. Agreements made rules of court, 208. specific' pei-formance of them decreed in equity, 215, 216. on a second marriage, by a man 341 342 INDEX. divorced from the first, will be specifically executed, 230. Agreements, if a man acknowledges one in his answer, it is bind- ing, though not in writing, 231. parol, when out of the statute of frauds, 233. specific execution of them de- creed, where one party signs at the instance of the, other, 234. fraudulent ones, 236. marriage ones, 239. Agreement, when plaintiff shall have execution of it, 235. fraudulent, equity will not re- lieve it against a suit at law, 237. when not within the statute of frauds, 237. when executed for the heir of the husband, 238. parol one not admitted against a written one, 244. must be ascertained, 236, to sell or buy lands is personal estate accordingly, 237. if not reduced into writing, by fraud, court will relieve, 237. for purchase of lands on mar- riage, who shall have the money, 240. parol, shall not on motion sus- pend a decree, but a bill ne- cessary, 245. of husband to pay separate maintenance, or alimony de- creed, 252. Alimony decreed, 252. Amended bill and original all one, 106. how to be drawn, 106. Amendment of the law, statute concerning it, 26, 64. of the bill, when it may be, 40. Amercement, sheriff liable to one for not returning an attach- ment, 70. Amy, prochein, not barred by out- lawry, 54. Ancestor, when a decree obtained against him cannot be carried into execution against the heir, 177 ; where the heir cannot controvert it, 178. Ancient demesne lands, 5. baronage, the power of judica- ture reserved to them, 8. circuit round the court was ten miles, 88. lights, stopping them up en- joined, 189. Answer, defendant had eight days after appearance to put it hi, 31. defendant cannot have a com- mission to take it in the coun- try when served with process in town, though he lives al- together in the countrj% 43. when it stands for truth, 45. replication alone, no litis con- testatio of it unless, itc., 45. not coming in in four days af- ter defendant has appeared on an attachment with the register, he will stand com- mitted on motion, 83. being deemed insufficient, de- fendant must answer in eight days, 88. when to be put in in eight days, 88. form of it in the civil law, 89. INDEX. 843 Answer, how many commissions defendant may have, 91. what time plaintiff hath to ex- cept to defendant's, 94 ; it is done by motion, 94; what time to answer plaintiff's exceptions, 94. exceptions to it, their origin, 94. if put in in vacation time, ex- ceptions to it must be flled in vacation time too ; if in term time, in term time, 95. three insufficient answers incur a commitment by the civil law, 96. insufficient one in a town cause is 4f)s. costs, in a country one, 50s., 100. when reported sufficient, plaint- iff must pay like costs defend- ant would in case answer was reported sufficient, 102. if reported insufficient in one single exception, defendant must either answer or except to master's report, 103. what to be taken as of the suc- ceeding term, 105. before it comes in, bill may be amended without costs, 106. all the defendants must come in before plaintiff can pro- ceed, 109, 112. contestation of it is the repli- cation, 112. must be signed by six clerk before it can be read, 152. infant may put in a new one six months after he comes of age to a decree made during his minority, 157 ; and why, 158. Answer, feme covert may put in a new one, and make a new defense to a bill iiled against her and her husband after his death, his claim arising merely from his wife's title, 158. not requisite to a bill of revi- vor, 170. when it cannot be referred for not being sufficient, 176. when come in, how injunction is dissolved, 191. Appeal from the chancery to the lords is upon a paper petition, 186. Appearance of defendant obliges him to answer as many bills of the same plaintiff as he shall ffle, both by our and the can- on law, 27. to a citation, when it must be, 29. to a common subpcena, and one returnable immediately, when, 29. when to be, by the old civil law, 29. day of what, 30. to be in four days after the re- turn of the writ, 31. eight days after to answer, 81. when to be to a subpoena re- returnable immediately, or on a common return in the exchequer, 32. defendant's, before the second decree, made him liable to a flue, 33. neglect of it, on being served with a subposna, a contempt, 34. not necessary to an irregular 344 INDEX. subpoena ; to enforce the de- fendant's, a subpoena or a copy of it must be left with him, 40. Note: leaving a copy of subpcena with de- fendant must be understood of the exchequer practice only, not chancery. Appearance with register and six clerk, their dilfereuce, 82. being entex'ed on attachment, and defendant does not an- swer in four days, he will stand committed on motion, 83. Appointment of masters in chan- cery, 19. of commissioners to examine witnesses, when, 116. Argning exceptions, what allowed thereon, 166. Arms, sergeant at, 18. Ari-est in court discharged, 199. Articles, marriage ones, dift'erence between settlements thereon before and after marriage, 231. not signed, and no covenant to pay, equity will not execute, 236. when to be specifically exe- cuted, 239. wliere marriage ones are not executed, tlie issue may con- vey on valuable considera- tion, 243. marriage, wliere not to be ex- ecuted,' thougli minutes of them reduced to writing, 250. what is a satisfaction of them, 320. Assets must be set forth in specie by tlie executors, if tlie court thinks proper, 175. Assets not to be discovered to stran- gers, 176. marshaled for legatees in the same manner as for simple contract creditors, 300. not at all for volunteers, 302. in favor of heirs, 302, 303. personal, liable to a bond paid by the heir before judgment, 302. how far creditors may follow them, 312. failing, legatee must refund, 324. Assignee of a person making a de- fective conveyance, how far he shall be obliged to make it good, 223. Assignment of a lease, when fraud- ulent, 290. Attachment made use of, 18. when it issues, 31, 84, 69, 187. with proclamation, 34, 70. against peers condemned in Queen Ulizabeth^s time, 65. has two returns, 69. not returning it makes slieriffs liable to an amercement, 70. observations on it, 71. door cannot be brolien open to execute it, and why, 73. and capias, tlieir difference, 81. its form, 81. issues upon refusing to pay costs on being served with tlie subpoena, whicli are al- ways made payable to tlie person who serves it, 100. costs of one not executed, 101. issues upon witnesses not ap- pearing on subpoena upon a commission, 126. / INDEX. 345 Attachment for the non-perfoi-m- ance of a decree not hail- able, 187. issues upon the breach of an Iniunctiou, 195. issues against an infant for not appearing, if not a peer of the realm, 201. for speaking opprobrious lan- guage of the court, 207. for abusing a person serving the process of the court, 207. Attorney at law, when service of subpoena on defendants will be good, 210. or counsel, notice to them will affect purchasers, 293. Attornment, motion for it, 79. Bag, petty, what makes it, 14. Bail, the defendant to give, three days after the libel came in, 22. not allowable on an attach- ment for the not performing a decree, 187. Bankrupts and idiots are an excep- tion to the general rule in re- gard to the great seal, 164. Bargains made with heirs, 285. Baronage, ancient, the power of judicatm-e reserved to them. 8. Baron and feme, in a suit against them, if baron dies, plaintiff must revive, 172. when he need not revive, 172. articles to sell his wife's lands to B. B. may file his bill against him and his wife, if she consents, for execution, but not against the baron only, 239. and wife's father agree to set- tle each £1,500 on the mar- riage, remainder to the bar- on's right heirs, who dies without issue, who shall have the money, 240; otherwise where the wife is adminis- tratrix, and the covenant for her benefit, 240. Baron, after his death, when his brother shall have the portion, 241. when his debts shall be paid out of his wife's separate main^ tenance, 247. if he creates a term to disap- point dower without notice to the wife, it is fraudulent, 250. and feime's interests governed by same rules as at law, 270. may dispose of all his wife's real chattels except, &c., 270, 271. second shall have a term set- tled on his wife on her first marriage, 272. may dispose of a resulting trust of a term iir his wife, and good, 274. cannot be affected by his wife's conveyance of her own estate before marriage, unless privy thereto, 286. shall have a legacy left to his wife, though separated from him, unless, &c., 325. and feme accounted as one per- son, 325. where answerable for the wife's devastavit, and where not, 327. Barones majorea and minores, their distinction, 4. 346 INDEX. Barons' wars, 3 ; break the power of the justiciar into several courts, 8. Baronies, 5. Benefit only binds the act of an in- fant, 158. Bill, ours the same as the canonist's libel, 44. cross, same as canonist's recon- vention 46. none after publication, 46. of interpleader, its use and ef- fect, 47. how to proceed thereon, 48. must be before decree, 48. must be dismissed where the tertius inferteniens is made defendant, 48. ad sedam, when it ma}' be amended, 49. when affidavit necessary to be annexed to it, 51. wlien unnecessary, 52. whenitmaybedemurredto, 52. relief of, when it may be de- murred to, 50. when not, 63. originally what, 64. of revivor, when proper, 85. facts in it must be the ground of the interrogatories, 90. the court anciently perused it, 90. tenor of it going with the com- mission taken away, 90. when it may be amended witli- out costs, 106. original and amended, all one, 106. amended, how to be drawn, 106. supplemental, when and how obtained, 107. Bill seldom refused in matters of account, 108. when it wUl be dismis.=ied for want of prosecution, 108, 112, 113, 150 ; when not, 109. cannot be dismissed without producing an affidavit of the service of the subpoena to hear judgment, 154. where plaintiffs will be dis- missed with costs for want . of proper parties at the hear- ing, 155. of revivor, who is and who is not "entitled to-it, 169. original must be brought by an assignee or devisee, 170. of revivor requires no answer, 170. what good cause of demurrer to it, 170. new one, when to be exhibited, or a revival at feme plaint- iff's election, 172. of revivor, or subpoena scire facias, when proper, 174. of revivor, what it must pray if demand be personal, 175. of revivor not for costs onlj', 178. of discovery, where not allow- able, unless, &c., 178. of review, wlien necessary, 181; cannot be ffied without leave of the court, 181 ; parties will be obliged to observe tlie terms imposed upon them by the court, upon leave be- ing granted, 181. of review, deposit thereon how much, 183; notliing can be examined upon it that was in issue in the original cause, INDEX. 34T 182; no second bill, and why, 182; who is entitled to the bill, 182 ; where it cannot be brought, 183. Bill, when affidavit to it necessary, 214. for a specific execution of an agreement proper in equity, 215, 216, lor discovery, when prayer of it shall not be granted, 178. of review cannot be brought before deeds are delivered up, if decreed, and why, 183. of review, its office, 183 ; when affidavit necessary thereto, 183 ; generally demurred to, 183. of discovery, no election there- on, 197. cross one, when it may be filed, and a perpetual injunction thereon, 198. being reported scandalous, full costs allowed, 204. of revivor, how to be drawn, 205. when security to answer costs must be given onffling it, 209. ours same as canonist's libel, 213. when two distinct ones may be grounded on the same sub- poena, 213. interrogatories must arise from the facts in the body of it, 214. if merelj'for damages, the rem- edy is at law, 214 ; but if any fraud appears, it will be re- tained, 215. wiU be retained, if answered when it ought to have been demurred to, 215, BUI, original one must be brought on setting forth a parol agree- ment, 245. Body, defendant's, when taken in execution, 26. and label of subpoena not agree- ing, no good service, and no contempt not to appear to it, 40. of subpoena to be reserved for the last defendant, 41. may be left at defendant's house, 40. Bond, its original security is only against the person, but after judgment against the estate, 224. given to perform covenants will be specifically decreed, 249. and covenants not negotiable, obtained by fraud, and as- signed without notice, shall not entitle the assignee to recover them, 279, if the obligee of one assigns it over to ^., the obligor shall not pay it over again, but the assignor is liable on his cove- nants, 280. where a joint one was assigned as a collateral security, and one of the co-obligors had paid the money by a third hand without a release, the other co-obligor shall not pay it over again, 282, 283 ; other- vplse if the bond was assigned for value before payment, and the obligor cannot plead payment at law, 282, 283; but if he can plead payment at law, assignee is not re- lievable in equity, 285. 348 INDEX. Bond, where given as a collateral security for performance of articles, it shall affect the lands no further than the sum in the bond, though the articles are not complied with, 282. and simple contract debts are equal, on lands being devised for payment of them, 309. debts subjected to a voluntary devise, 309. creditor, where he has run away with the personal es- tate, the court will order the bond to be assigned to trus- tees to sue the heir pro tanto for the benefit of the simple contract creditors, 300. Breach of injunction cause for an attachment, 195. of a decree, process ought to be shortened thereon, and why, 168. Bi-eaches of injunctions, 194. Brevium officina, what, 9. Burgage tenure, 6. Canon law, by it and ours, defend- ant's appearance obliges him to answer as many bills of the same plaintiff as he shall file, but of no other, 27. judges by it, wlien not given, 30. law, defendant to be thrice cited by it, 32. and civil law, revival of pro- ceedings by them, how, when, and against whom, 169. and civil law, an interlocutory sentence thereby, what, 179. Canonist's libel, what formed from, 44. what parts of our bill answer it, 44. then- reconvention what, 45. and civilian's exceptions same as our pleas, 63. libel, our bill like it, 213. Capias and attachment, their dif- ference, 81. Caveat neeessaiy on rehearing, 160. - Cause, how restored again into the paper, 156, adjournment of it over, 156; where not, 157. where it shall be struck out of the paper, 159. cannot be re\'ived in part, 171. cross ones, how revived, 171. of a party in contempt cannot be heard till he has cleared it, 211. when to be set down for hear- ing, 147. Certificate and affidavit, what nec- essary to make an oi'der abso- lute on a decree nisi, 153. Chancery had originally a fourfold use, 9 ; its second office, 11 ; third, 13. persons drawn into it by false suggestions recovered dam- ages, 17. masters in, why appointed, 19. wlien it first used the subpcena, 36. range of it for subpoenas re- turnable immediately not so great as that of the excheq- uer, and why, 43. never adjourns, 127. no sentence definitive there INDEX. 349 till signed and enrolled, 179. Chancery, appeal from it to the lords is upon paper petition, 186. what costs allowed there, 201. will oblige the issue in tail to dock the entail after the death of the tenant for life, 218. Charges of a subpoena, 39. of witnesses, 116. Charity, where anything is given to one, and none appointed, or a superstitious one, the king appoints, 332. construction of 43 El. in favor of it, 333. Chai-ter, great one confirmed, 4. Chose in action not assignable at law as in equity, 169. Christmas occasioned one of the vacations, 38. Circuit, the ancient one round tlie court was ten miles, 88. Circumstances of the ease, ground work of decrees, 161. Citations made use of among the Bomans, 20. twofold, verbal or by messen- ger, 21. error in the christian or sur- name fatal, 27. may be returnable on an holi- day, 28. may be served on a Sunday, 29, in notes. may be served at defendant's house as well as personally, 29. what time defendant has to appear to it, 29. Citations, no real one in civE causes among the canonists, 33. real, what they are, 35. Civil, old, law, when to appear by it, 29. Civil law, form of answer in it, 89. replication in it, what, 107. Clerk of the crown, what writs are made out by him, 9. of the hanaper, his duty, 10. in court, where service of sub- poena on liim good, 40. in court committed for mis- behavior, 140. six, answer must be signed by him before it can be read, 152. in court must be served with order of revival, 175. m court, when the service of a subpoena on him without the usual aJBdavit will be good, 209. in court's house, notices of mo- tion left there not good ser- vice of them, 97. or solicitor, if committed for malpractice, what he must do in order to be discharged, 199. Client cannot be ordered to pay his solicitor's bill, though taxed, but must talie his remedy at law, 202 ; unless taxed on the client's application, 203. Code, what new regulations were brought in by it, 87. Commission of rebellion, 18, 73, 76, 78. to take an answer in the comi- try not to be gi'anted to the party who is served with pro- cess in town, though he al-i 850 INDEX. together resides in the coun- try, 43. Commission of rebellion, houses may be broken open to execute it, and why, 75. issues to commissioners, and why, 76. why sergeant-at-arms is the next process, 76. always produced on motion for sergeant-at-arms, 78. to answer, plea, or demurrer, cannot be returned thereon, 92. plea of outlawry may be put in without one, 92. what notice necessary for the execution of it, 92. when plaintiff had one ex parte, 120, 121. rejoinder in, in four days, how obtained, 122. at the opening of it the inter- rogatories are to be exhib- ited, 124. when plaintiff not entitled to the carriage of it, 125, 128. when lost, and when not, un- less, &c., 127, 128. words of it, 127. when defendant is entitled to a new one, and the car- riage of it, and when not, 128. what affidavit necessary to ob- tain a new one, 129. new one must be at defendant's costs, unless, &c., 129. Commission, fourteen days' notice must be given of executing it, 123, 133. cannot be executed in term time, unless, &c., 133. Commission, duplicate of it, when necessary, 184. when defendant may sue out a new one, and have the car- riage of it, 134. Commissions, how many defendant may have on his answer being insufficient, and what costs he must pay on each, 91. within vv^hat distance of town they issue, 126, 140. to examine witnesses, meth- od of proceeding thereon, 132. duplicates of them seldom granted, 132. when to be made returnable, 132. cannot be executed unless one commissioner on each side attends, 134. duplicates of tliem, when ne- cessary, 134. new one, ^\hen it may be granted or denied, 135. interrogatories thereon must be the same as on the former, 135. Commissioners to examine wit- nesses, when appointed, 116; must be indifferent, 116. are not to adjourn, 125. witnesses to be summoned by them, 126. must act pursuant to their com- mission, 128. when and how to be examined, 129. have power to adjourn, 129. having pi-oper authority, their not having the commission before them does not im- peach the depositions, 130. INDEX. 351 Commissioners' names, when the court will strilce them, 133. when plaintiffs may proceed ex parte, 133. order to examine defendant as a witness must be produced before them or at the ex- aminer's office, 136. where they are upon oath not to divulge the depositions before publication, 139. Commitment, abusing party serv- ing subpoena incurs it, 42. on decree in personam, 85. of a clerlv in court for misbe- havior, 140. of practicers, for tampering with or suborning- witness- es, 141. of a witness for not attending to be examined, 143. Common law, subpcsna by it was to bring in a witness to at- test the truth, 37. Commons, taxation always granted by them, 7. Commune concilium regni, what, 3. Complaint to the court must be made by affidavit, 126. Conclusio causce, what, 119. Condition, wherever it is broken, for which a compensation can be made, equity will relieve against the forfeiture, 331. Confession, what deemed an im- plied one, 35. Contemner not to be heard till he has cleared his contempt, 101. Contempt, defendant must clear it before he can be heard, 33. neglecting to appear on a sub- poena, one, 34. Contempt, not appearing to an ir- regular subpoena, none, 40. deprives a person of a commis- sion to answer, unless on mo- tion and proper affidavit, 71. sheriff cannot break open doors or enter freehold to execute its process, and whjf, 74. in witnesses not appearing on a subpoena upon a commis- sion, for which an attach- ment issues, 127. must be cleared before parties can be heard, 211. Contestatio litis, what, 45. what closes it, 114. Contestation of the answer is the replication. 111. Contesting the suit, what, 22. Contribution, how decreed, 325. Conveyance, how far the assignee of a person making a defective one shall be obliged to make it good, 223. where a defective one cannot be made good, 225. Conveyances, defective ones, in what cases the heir and heir in tail shall make them good, 216; when a second defective one shall be perfected by a son, 217. by a woman before marriage, 286. voluntary ones, 286. where there are two voluntary ones, the last shall take place, 280. Copy of subpoena, or the writ itself, must be left witli defendant to enforce his appearance, 40. Note : leaving copy ofsubpcena with defendant must be under- 352 INDEX. stood of the exchequer practice only^ not chancery. Copy-hold estate, surreiider of It supplied ill equity, 221 ; not within the statute de donis, 221. Copies of interrogatories not al- lowed, 115. Corporeal goods, when decreed on sentence given, 25. Costs, none, unless the subpcena be served, 39. when defendant is discharged with tliem, 67. ivhat defendant is to pay on each commission Avlien his answer is insuffloient, 91. on pleas being allowed or over- ruled, 93. of report before hearing are 15s. ; after, 25s., 100. of an insufficient answer in a town cause is 40s. ; in a coun- try one, 50s., 100. subpcena for them must be sei'ved personally, 100. not being paid on service of subpoena for them, attach- ment issues, 100; they are always payable to the per- son who serves the subpoena, 100. of attachment not executed, 101. when answer is reported suffi- cient, plaintiffs pay like costs defendant would in case an- swer was reported insuffi- cient, 102. when bill may be amended without, 106. must be paid on amendment of bill, otherwise irregular, 106. Costs, defendant entitled to them, If subpoena to rejoin be sued out before replication filed, 122. for a newr commission must be paid by defendant, 129. of the day upon showing cause why a decree should not pass against a defendant must be paid by him on being taxed, &c., 153. where plaintiff's bill will be dismissed with them, for want of proper parties at the Jiearing, 154. only, no bill of revivor for them, 178. full allowed, on bill being re- ported scandalous, 204. when security to answer them must be given on filing bill, 209. shall be paid by prochein amy, 200. if they are directed to be paid out of a real or trust estate, the person is not liable, 201. how allowed in chancery, 201 ; how in the exchequer, 201. no exceptions to be taken to the taxing them, 202. allowed on scandals and im- pertinences, 203. on scandalous bills to be paid by the counsel wlio signed them, 207. Counsel must prepare and sign ex- ceptions, 166. to pay the costs on impertinent bills out of his own pocket, 207. County courts, their decline, 1. Covenants being personal, the cov- INDEX. 353 enantee could recover only- damages at law, but equity de- crees the thing Itself, 229, 230. Court, the Icing's own, what it con- sisted of, 2. of equity, when erected, 14. day, subpoena must be return- able on one, 28. of exchequer, its range for sub- poena returnable immediate- ly greater than tlie chan- cery, and why, 43. of exchequer, its range, 89. anciently perused the bill, 90. not fond of expediting causes to .an hearing, and why, 131 ; when it will do it, 131. will oblige executors to set forth assets in specie, if re- quisite, 175. leave of it necessary to file a bill of review, 181 ; will oblige party to perform the terms imposed on him upon its granting leave, 181. may dispense with the perform- ance of any part of tlieir de- cree, 182. arrest in it discharged, 199. opprobrious language spoken of it cause for attachment, 207 ; and also abusing person serv- ing its process, 207 ; party's own affidavit is sufficient ground for it, 208 ; but does not issue against peers, 208. cannot oblige executors to give security, and why, 176. very cautious of depriving a man of his liberty, 196. cannot order a client to pay his solicitor his bill though taxed, but must take his remedy at 23 law, 202; unless taxed on the client's application, 203. Court bound to take care of the in- terest of all infants, 209. where it will order a party to be close confined, 311. of equity bound by the statute de donis, 221. Courts of justice, their division, 1. Credit of witiiesses, liow examined to, 144 ; seldom done, 145. Creditors, judgment ones on bond debts shall extend the lands in the hands of a volunteer, but not judgment ones ou notes of hand, 287. even simple contract ones shall not be aflfeoted by a volun- tary deed, 291. bond oues are preferred to leg- atees by 3 and 4 Will. 8r Mar. u. 14, sec. 4, 310. how far they may follow as- sets, 312. Cross interrogatories, what, 24. bill, ours same as tlie canonist's reconventio, 46. cannot be exhibited after pub- lication, 46. when it may be filed, and a perpetual injunction there- on, 198. causes, how revived, 171. Custody, men in, sequestration against them before subpoena, 18. party must be actually in it before he can be heard, if or- dered to be committed, 212. Damages given to persons di-awn into chancery by false sugges- tions, 27. 354 INDEX. DamagQS, if bill be for them only, without any fraud, the remedy is at law, otherwise not, 214. Debts due to the wife, when they shall not survive to her, though not disposed of by the husband, 335, 336. to be paid out of the personal estate, though an executor be appointed, 306. and legacies, lands appointed for the payment of them, 309. lands devised for the payment of them, when discharged, 320. what a purchaser must dis- charge, 277. when not barred by the statute of limitations, 324. Decline of the county courts, 1. Declinatory exceptions, 49. Decree, when it cannot be obtained, but a sequestration only, 30. pleaded when it need not be sworn to, 55. Becretum primuin, what, 33, 35. secundum, what, 33, 35. Decree, after it was pronounced, how they formerly proceeded, 83. the modern method, 84. either in rem O'c personam, 85. binds all who come in any privity, 85. inpersonam, defendant may be committed thereon, 85. when to be revived by scire fa- cias, when by bill of revivor, 85. equal to a judgment at law, 86. when it may be revived against the heir at law, though de- fendant dies, 85. Decree cannot be made upon the plaintiff's oath, only against the defendants, 137. nisi, what afHdavit and certifi- oate necessary thereon, 153. if defendant shows cause why it should not pass against him, he must pay the costs of the day to be taxed, &c., 153. to one made during an infant's minority,' may be put in a new answer, and made a new defense, six months af- ter his coming of age, 157. how made up by the register, 159. and orders, rule for entering them, 160. what time party has to apply for ii rehearing after notice of it, 161. depends on the circumstances of the case, 161. and report, when writ of exe- cution of it is to be made out, 167. obtained against the ancestor, when it cannot be carried into execution against the heir, 177 ; wliere it cannot be controverted, 177. performance of it may be dis- pensed witli by the court, 181 . attachment for not performing it, not bailable, 187. for the specific performance of an agreement, 215, 216. process on breach thereof ought to be shortened, and why, 168. no prefixed time to show cause why it should not be abso- lute, 153. INDEX. 355 Decree, whore the parties Will be ordered to attend de die in diem, the master to speed his report after It, 162. ancient rule of serving it, 162 ; good, and why, 1G2. must be signed and enrolled before writ of execution of it will be allowed, 1G2, 168. if party being served with the writ of the execution of it does not attend to be exam- ined, it is a motion of course to have him committed, 163. proceedings after it is pro- nounced, 180. order to enroll it nunc pro tunc should always be passed and entered, and why, 185. process shortened after it, 196. Dedimus, when granted, 88. what return itouglittohave, 88. Defense, infant may make a new one to a decree obtained during his minority six months after he comes of age, 157. when a feme covert may make one to a bill filed against her and her Irasband during cov- erture, after his death, 158. Definitive sentence, what, 179. Demand, if personal, what bill of revivor must pray, 175. Demesne lands, 5. Demurrer, when to the relief of a bill, 51. when not, 63. and plea cannot be put in to- gether, 03. what a good cause for it to a bill of revivor, 170. not to be to a subpcena scire facias, 171. Demurrer, generally to a bill of re- view, 183 ; precedent of its be- ing allowed, 184 ; on arguing, prevailing party takes back the £50 deposit, 185. instead of answer, cause for re- taining the bill, 215. Demurrers, 50. when they may be put into bills, 52. for want of proper parties, 54. Deposit, what, to be made on a re- hearing, 160, on exceptions, 160. on a bill of review, liow much, 182, of £50 always taken back on arguing the demurrer by the prevailing party, 185. Depositions, what, useless, 115. were kept secret till publica- tion, 118. to be sent by a special messen- ger to that court whence the commission issued, 126. not to be impeached because the commission was not be- fore the commissioners, 130. on a bill to perpetuate the tes- timony of witnesses, may be used at law, 137, de bene esse, 138. when to be published, 138 ; how to obtain an order for it, 138 ; the same on defendant's be- ing beyond sea, 138. where the commissioners are upon oath not to divulge them before publication, 139. not to be published till publi- cation be duly passed, 141. if they can possibly be read, not to be suppressed, 147. 356 INDEX. Depositions, motion of course to re- fer them to a master, 146. causes for suppressing tliem, 146. Devise of lands, and testator mort- gages afterwards, it is a revo- cation joro tanto only, 179. of personal estate to trustees to buy land in pursuance of marriage articles to leave a wife £100 per annum, and tliereby settles it on a nephew subject thereto, he shall be decreed the per- sonal estate at his election, but the widow shall not pay taxes for the £100 per an- num, 251. of lands, after payment of debts and legacies to the heir, the trustees embezzle, yet the heir shall not have the lands till the debts and legacies are paid, 320. of lands over after payment of debts and legacies, they must be first paid, 320. that debts, legacies, and fune- ral expenses shall be paid, and the pei-sonal estate falls short, the real shall be lia- ble, 324. Devisee or assignee must bring an original bill, 170. Devise of £20 to bind one appren- tice, if he dies before he is bound, his executor or admin- istrator shall have it, 333. over, where marriage is re- strained without it, 329. of a real estate to an heir at law who is made executor, if the personal estate falls short, the legacies shall be paid out of the real, 307. Devise of lands to executors for payment of debts entitles all debts to be paid cequali gradu, 311. of Black acre which is in mort- gage to another, or the value of it, the devisee shall have Black acre clear, if there are assets, 325. to a son of a personal estate in tail, remainder over, if he dies in his minority, he may dispose of this at fourteen, 326. of rent out of a term shall continue during the whole terra, though no estate is mentioned, 326. Devisee of lands in remainder, upon condition to pay several sums of money at a stated time, may cut down timber for that pm-pose during the life of a jointress, 330. Devotion occasioned one of the vacations, 38. Dies perendinus, or day of appear- ance, what, 30. Difference between the patron and orator, 25. Dilatories, where tlie defendant is out oif from them all, 26. must be avoided in pleading or demurring, 91. Dilatory exceptions, 49. Discovery of assets not to be made to strangers, 176. bill of, where not allowable, unless, &c., 178. when plaintiff is not entitled to it, 178. INDEX. 357 Discovery, no election on a bill for it, 197. Dismission of bill must be where the tertius interveiiiens is made a party, 48. of bUl, when for want of prose- cution, 108, 111, 112, 150; when not, 109. of bUl cannot be without affi- davit of service of the sub- poena to hear judgment, 154. of plaintiff's bill with costs at the hearing, for want of proper parties, in what cases, 154. upon an interlocutory order, not pleadable, 197. Distinction between the harones majores and minores, 4. Distribution, how made in chan- cery, 325. Division of the courts of justice, 1. Donatio causd mortis is a gift in prcesenti, which takes effect after the donor's death, if, after such donation of a sum of money, there be a written wUl, which gives the same or a greater sum, it wUl go in satisfaction, 334. Dower, terms to prevent it, 259. a trust term created for another purpose shall not be set up against tlie wife's, 259. not to be of a trust estate, 261. wife is not to be defeated of it by the fraud of her hus- band, 260. Duplicates of commissions seldom granted, 132. when necessary, 134. Duty, when payable at a certain place, how to proceed, 168. Duty, when decreed, how master will order the payment, 167. Easter vacation was appointed for the observance of "Whitsuntide, 37. Hdictum primum, secundum, etper- emptorium, when to be grant- ed, 87. Edward the First, in his reign tliey began to keep close to the form of the register, 19. Election, when in feme plaintiff either to file a new bill or re- vive, 172. proceedings thereon, 196. if the plaintiff elects to proceed at law, his bill is dismissed, 196. unless the action at law and suit in equity be for one and the same thing, 197. not allowed on a bill of dis- covery, 197. Elegit, 86. English jurisdiction, orignal of it in the court of chancery, 19. EnroUmeut and signing of sentence in chancery necessary to malie it definitive, 180. Entering decrees and orders, rules for it, 165. Equity, court of, when erected, 14. suits not barred by judgments at law, 55. rule of evidence there same as at law, 145. a rule there that the lieir shall not be bound down by one single trial, 161. chose in action assignable in it, though not at law, 169. when the same remedy at law 358 INDEX. as relief in equity, wliat is to be done, 215. Equity will decree the specific per- jEormance of an agreement, 215, 216. court of, bound by the statute de donis, 221. will supply the surrender of a cop3''-hold estate, 221. Error in the christian or surname in the citation fatal, 27. Estate, copy-hold, surrender of it supplied in equitj', 221. original security of a bond is not against it, but against the person only, till after judgment, 224. personal, how applied in ease of the real, 304. Evidence, rule of it same in equity as at law, 145. parol, since the statute of frauds and perjuries is not admitted to alter a will, 288. parol, cannot overthrow a will, 329. Examinations pro interesse sua, when necessary, 79. of a witness in town, how to be, 140. cross, how, 141. of a witness, when it cannot be without leave of the court, 143. of witnesses' credit, 144; sel- dom done, 145. of witnesses anciently by the judges of the court, 115. of witnesses anciently by the masters in chancery, 90. to perpetuate their testimony, 117. Examinations in perpdumm reime- moriam, in meliori Jbrma, 117. how formerly, 123. Examining witnesses in town, what notice necessary, and to wljom, 123. Examination of witnesses must be uno aciu, if possible, 125 ; the manner of it, 125. of either party, when it shall not be, unless, &c., and why, 128. of a commissioner, when, and how it may be, 129, 136. witnesses, method of proceed- ing on the commission, 132. Examiner's office, when the whole set of interrogatories are not to be filed there, 136. office, order to examine de- fendant as a witness must be produced tliere or before the commissionei's, 137. oath, 139. office, how far it extends, 140. Exceptant must deposit £5, 102. Exceptions produced before the prastor, 24. how long defendant has to put them in, 30. Exceptions, 49. among the civilians and canon- ists same as our pleas, 63, 95. to defendant's answer, what time is allowed to put them in, 94; they are put in on motion, 94; what time to answer them, 94. to answers, their origin, 95. to answers must be filed the same term or vacation as the answers are put in, 95. INDEX. 359 Exceptions, if they do not come in in time, plaintiff may move tliat defendant may receive tliem, 96. vfhen and iiow to be referred to a master, 96. to master's report must be signed by counsel, 102. what defendant must answer, 104; when court will malce defendant answer them, 104. must be prepared and signed by counsel, 166; deposit thereon, 166; what allowed on arguing tliem, 166. not to be taken to the taxing of costs, 202. ten shill ings to be paid for every one tliat is overruled, besides the £5 deposit, 166, 167. being filed, how injunction is dissolved, 166. Exchequer, when to appear to a subpcena returnable immedi- ately, or on a common return in that court, 31. when defendant was allowed four days to appear to a sub- poena returnable in that court, 32. by the practice of that court, service of subpoena either on husband or wife, good service on both, 41. range of it for subpoenas re- turnable immediately great- er than the chancery, and why, 43. how the sheriff is proceeded against there, 70. its range, 89. rule there for plaintiff's reply- ing, 110. Exchequer, how costs allowed there, 201. Execution, when defendant's body taken in, 26. of a commission, what notice necessary, 92. wlien a decree obtained against the ancestor cannot be car- rind into execution against the heir, 177 ; where it can- not be controverted, 178. writ of, upon a decree not al- lowed till it be signed and enrolled, 162, 168. , of a power, when to be made good, 294. Executor though appointed, per- sonal estate subject to debts, 306. durante minore cetate need not revive on the infant's coming of age, 173. not barred by outlawry, 54. will be obliged to set forth assets in specie, if this court sees occasion, 175. not obliged to give security, and why, 176. and administrators of younger children, when tliey are en- titled to money raised for them on a marriage settle- ment, 261, 262. where they sliall pay decrees obtained against their intes- tates out of their own pock- ets, 293. devise of the resid^ie to them is only after debts paid, 304. and administrators, where creditors may follow assets disposed of by them for val- uable consideration, 314. 360 INDEX, Executor paying infants' legacy to tlieir parents, must pay tJiem over again, notwithstanding an acquiescence, 323. if they waste assets the deficien- cy falls upon the whole, 324. Exhibits, how to be proved, 139. may be proved viva voce on a reliearing, 180. Eyre, justices in, 1. when appointed, 2. Failureof justice, instance of, 197. Feme plaintiff', when in her elec- tion either to exhibit a new bill or revive, 172. when she need not revive, thougii she marries pending the suit, 172. Feme sole, need not revive against her upon marrying after an- swer, 171. plaintift''s husband must revive, 171. Fine, defendant liable to one upon appearing before the second decree, 33. and non-claim, plea of, 61. and recovery, tenant in tail and tenant in fee agree to ex- change, and the issue in tail enters, he shall be compelled to levy the one and suffer the other, 243. wiien the issue in tail will be compelled to levy one after the death of tenant in tail, and why, 218. Fleet, whether an habeas corpus will remove a prisoner tiience, being committed for a con- tempt to the court of chancery, to the king's bench, 211. Fraiud, if any appears upon a bill, though it be for damages only, it will be retained, 214. Frauds and perjuries, statute of pleaded, 60. statute of, a parol agreement, if partly executed, not with- in it, 226. Freehold, sheriff cannot enter it to execute a process of contempt, and wliy, 74. Goods, when corporeal and when movable, given on sentence, 25. Great charter confirmed, 4. Guardian not barred by outlawry, 54. infant mustdefendbyhim, 200. chancellor is the universal guardian of infants, 333. Habeas corpus, whether it will re- move a prisoner from the Fleet, being committed there for a contempt to the court of chan- cery, to the king's bench, 211. Hanaper clerics, of their duty, 10. Harvest occasioned one of tlie vaca- tions, 37. Hearing, court not fond of expedit- ing causes to one, 131 ; when it wiUdoit, 131. between and passing publica- tion always a wliole term, 131. when cause to be set down for it, 148. subpoena to hear judgment must be served fourteen days before it, 148. cause not to be set down for it same term publication passes, 149. INDEX. 361 Hearing, when it may be moved for by plaintiff, 149; when by de- fendant, 149. ten days' notice necessary be- fore it in town causes, four- teen in country ones, 151. how to proceed if defendant does not appear at it, 151. where plaintiff's bill will be dismissed for want of proper parties at it, 154. where a decree obtained against his ancestor cannot be car- ried into execution against him, 177 ; where it cannot be controverted, 178. Heir at law, when decree may be revived against him, though defendant dies, 85. not to be bound down by one single trial, 161. and heir in tail, in what cases they shall make them good, 216. equity will not assist a natural daughter against him, 237, 250. when the land shall not go to him, 237. was compellable by the original institution of the court of chancery to execute the trusts reposed in his ances- tor for the benefit of the church, 253. is obliged to provide for his brother, 297. of the mortgager, the personal estate shall always go in ease of the real for him, except, &c., 304. where theovei-plus of an estate, after payment of debts, is de- vised to him, or to him and a stranger, there the personal estate shall not go in ease of the real, 306 ; so if the resi- due is devised to a stranger, and not to the executor, 307 ; so if a specific legacy or cer- tain sums of money be left to the executor, 307. Heir at, law, bargains made with him, 285. HcEresf actus and Jimres natus equal- ly favored, 305. Hilary vacation was appointed for the observance of Lent, 37. Holiday, citation may be returnable on one, 28. Houses, their liberty, 76. may be broken open to execute a commission of rebellion, and why, 75. Husband and wife but as one per- son in a subpoena, 39. service of a subpoena on either, good service on both, by the practice of the excliequer, 41. obliged to apijear for his wife, 41. Idiots and bankrupts, exceptions to a general rule concerning the great seal, 164. Impertinences and scandals entitle parties to costs, 203. what esteemed such, 204. to be expunged with costs, 206. Implied confession, what deemed so, 35. Infant may make a new defense and put in a new answer six months after be comes of age to a decree obtained during his minority, 158. 362 INDEX. Infant not bound by fm act, unless it be for his benefit, 158. attaclnnent issues against him, if not a peer of the realm, for not appearing, 201. must defend by guardian, 201. feme covert, on a legacy being devised to her, the trustees or executor may insist on having the fortune settled, not only against her hus- band, but also against his creditors, 269. legacy left to him wlien he comes of age vyUl not bear interest before the time of payment, unless the execu- tor vvealcens the security, 322., shall have no more than com- mon interest, 323. court bound to take care of their interest, 209. Infants, chancellor their universal guardian, 333. Injunction from stopping ancient lights, 189. to be relieved against a penal- ty, 190. to stay trial, 190. a perpetual one, 190. to stay multiplicity of suits, 191 . of dissolving it upon coming in of tlie answer, 191. cause shown why it should not be dissolved, 192. difference in a motion to dis- solve it at tlie last seal and in term, 192. vi^hen a motion of course to dis- solve it, 193. when suit is abated thereon, 194. Injunction, attachment issues on breach of it, 194. breaches of them, 194. perpetual one granted on filing a cross bill, 198. how dissolved, on exceptions being filed, 192. where tenant in tail shall have it against tenant for life, 189. when tenant for life, without impeachment of waste, shall be hindered from doing it by it, 189. an incumbent shall have a per- petual one against a prior grant of a fraudulent avoid- ance, 279. Instance, a memorable one about enlarging publication, 144. Instruction, office of, 12. Insufficienoj', wlien ansvi^ers cannot be referred for it, 176. Interesse suo, examinations for it, when necessary, 79. Interest must be answered one year after the testator's death, if demanded, upon a legacy left to a man of full age, 322 ; if the legatee be an infant, there needs no demand, 322. legacy will not carry it where the legatee is not to be found, 322. wlien legacy carries it from a certain day, 322. when a logacy carries it from the death of the testator, 322. Interlocutory orders need only be shown to the party, not served, 40. All interlocutory orders must be passed, entered, and served by the present practice. INDEX. 363 Interlocutory sentence by the canon and civil law, what, 179. Interpleader, bill of, its use and eflfeot, 47. how to proceed thereon, 48. must be before decree, 48. Interrogatories, cross ones, what, 24. must arise from the facts in the bill, 90. the master in chancery an- ciently examined witnesses thereon, 90. copies of them not allowed, 115. to be delivered at the opening of the commission, 124. when to be exhibited, 134. upon a new commission, must be the same as on the former, 135. when the whole set of them are not to be filed in the ex- aminer's office, 136. must arise from the facts in the body of the bill, 214. Issue in tail decreed in chancery to dock the entail after the death of the tenant for life, 218. in tall, when compelled to levy a line after death of tenant in tail, and why, 220. and remaindei-man are bound, if tenant in tail of a trust contracts debts by mortgage or i udgment af fer issue born, 227. Judge anciently examined witness- es, 115. Judges by the canon law when none given, 30. Judgment, subpoena to hear, mis- takes in it cured by the party's appearance, 28. Judgment at law, decree equal to it, 86. at law no bar to a suit in equity, 55. subpoena to hear it must be seiTed fourteen days before the hearing, 148. subpoena to hear it, how to pro- ceed in case defendant ap- pears upon being served with it, and how if he does not, 149 ; how made out, 150. affidavit of the service of the subpcena to hear it necessa- ry on dismissing plaintiil''s bill, 154. makes the security of a bond to be against tlie estate, for till then it only affects the person, 224. Judicature, the power of it reserved to the ancient baronage, 8. Judicial process miist be returnable in term time, or at a certain day, 153. Juramenta calumnice post liters con- testatam, what, 22. Jurisdiction, English, original of it in the court of chancery, 19. Jury process, 'why it could not be X awarded by the qfflcina bre- vium, 13. Justice, instance of fsiilure of it, 197. Jiisticies to the sheriffs, 1 . Justices in eyre, 1. when appointed, 2. Justiciar, his power broken into sev- eral courts by the barons' wars, King Edward the first, in his reign 364 INDEX. tlicy began to keep close to the form of the register, 19. King's own court, what it consisted of, 2. bench, whether prisoner can be removed tiiither from the Fleet by habeas corpus, being committed there for a con- tempt to the court of chan- cer}', 211. Label and body of subpoena not agreeing no good service, and no contempt not to appear, 40. of subpoena must be served personally, 41, 151. Land, agreements concerning it must be in writing, 226. ancient demesne, 5. appropriated for the payment of debts and legacies, 309. sale of it, 280. devised for payment of debts, when discharged, 320. particularly devised cum onere to a stranger shall not re- lapse, 263. Law, by ours and the canon, if the defendant appears he must an- swer all the bills the same plaintiff files, but no other, 27. old civil, when to appear by it, 29. canon, judges by it when not given, 30. by the common, a subpoena was to bring in a witness to at- test the truth, 36. judgment at, no bar to a suit in equity, 65. rule of evidence at, same as in equity, 145. though chose in action is not assignable at it, yet it is in equity, 169. Lave, what is an interlocutory sen- tence by the canon and civil, 179. when remedy there, 214. upon plaintiff's electing to pro- ceed at it, his bill will be dismissed with costs, 197. when there is the same remedy at it as there is relief in equi- ty, what is to be done, 215. Lease, assignment of it, 289. made good by tenant in tail, 289. Legacies and debts, lands appro- priated for the payment of them, 309. when they shall lapse or not, 262, 263. equity will not break into spe- cific ones in favor of pecu- niary ones, 303. when vendee must see to the payment of them, 314. when satisfaction by the civil law, 314-320, 325. Legatees, when to' abate, 321, 322, 335. a voluntary contract good a- '^ainst them, 300. where equity will marshal as- sets in favor of them, 300. Lent occasioned one of the vaca- tions, 37. Letters to peers, when first intro- duced, and wliy, 64. peers or peeresses not appear- ing on being served with them, subpoena issues of course, 64. when proper to apply for them, 66. INDEX, 365 Libel, what, 21 ; the defendant to give bail three days after it came in, 22 ; the plaintiff was obliged to give in his libel be- fore the pra3tor, 23. of the canonists, what formed from, 44. What parts of our bill answers it, 44. when to be formed, 49. what was to be annexed to it, 118. what suggestions necessary on its being exhibited to ex- amine witnesses, 118. when no need to insert the age of the witnesses in it, 118. our bill same as the canonist's, 213. lAbellus supplex, what, 23. adionis, what, 23. articulatus, what, 89. Liberty of men's houses, 75. court very cautious of depriving men of it, 196. Lights, ancient ones, stopping them enjoined, 189. Limitations, statute of, plea of, 60. statute of, when debts not barred by it, 324. Litis contestatio of the answer, re- plication alone is not, unless, &c., 45. what closes it, 114. Lodgings, where service of subpoena at defendant's not good, he having left them a year before, 40, in margin. Lunatic, what settlement the hus- band must make upon marry- ing her, 270. Maintenance, separate, 249, 337. a reversionary term shall not be sold or mortgaged for the children during the father's life, 268. the heir having one, enters into unreasonable contracts in the lifetime of the tenant for life, equity will reduce them to the common price, allow- ing interest, 285 ; otherwise, if ^he has no maintenance, 285. separate of the wife, whatever is proved to be bonglit out of it is protected from the husband's creditors, 337. separate, wife having it, if she contracts for the payment of her husband's debts, they shall be paid out of it, 247. agreement for it binding in equity, 252. Majores and ntinores barones, tlieir disthietion, 4. Marriage settlement, plea of, 58. agreements, 239. copy-hold settled by the father on his sons cannot be reset- tled on the father's second wife, and why, 245. omissions in them, when sup- plied in equity, 247. conveyance by a woman before it, 286. settlement, who ai-e purchasers in it, 297. restraint on it, without a devise over, 329. of a lunatic, what settlement the husband must malvc, 270. brokerage contracts made to 866 INDEX. guardians or parents void In equity, 290. Mari'iage with executor's consent entitling person to a legacy, if the legatee lives to twenty-one, she is entitled to it, though she marries without his con- sent, 329. Master, when and how exceptions are referred to him, 96. where the parties will be or- dered de die in diem to attend him, to speed his report after a decree, 162. Masters in chancery, why ap- pointed, 19, in chancery anciently exam- ined witnesses on interroga- tories, 90. report, how made, 98. referring depositions to him is a motion of course, 145 ; how to proceed thereon, 146. Maxims, 61, 108, 131, 140, 141. Mergers of terms, rules concerning them, 258. Messenger, citations by, or verbal, 21. Michaelmas vacation was appointed for the observance of Christ- mas, 37. Minority, to a decree made during it, infant may make a new de- fense, and put in a new answer six months after he comes of age, 157. Misbehavior of a clerk in court oc- casioned his being committed, 140. Missive letters, when proper to apply for them, 66. Mistakes in the subpoena to rejoin or hear judgment cured by appearance, 28. Mistakes, what in a subpoena will vitiate the writ, 38. what in the return, 39. what in the form, 39. Money, what is proof of the receipt of it, 227. Mortgage, purchase of a first at an under value shall receive from the second mortgagee no more than he paid, 275; shall have the whole money, 276. money is a debt, whether there be a covenant for the pay- ment of it or not, 304. Mortgager's personal estate, when it shall go in ease of the real, 308. Mortmain, statute of, how avoided, 17. Motion for sergeant-at-arms, when made, the commission of re- bellion must be produced, 78. for tenants to attend, 79. what processes issue without it, 80. what on it only, 81. notices of, there must always be one day between the ser- vice and attend.ance on them, 96 ; affidavit must be made of the service of them, 97; which cannot be read till filed, 97 ; service of thorn how to be, 97 ; left at the clerk in court's house not good, 97. for payment of money out of court must be served per- sonallj', 98 ; so where cause is sliown for the continuance of an injunction upon ex- INDEX. 367 ceptions filed to the answer, 98. Motion of course to refer deposi- tions to a master, 145; how to proceed thereon, 146. for hearing, wlien it may he made by plaintiff, 149 ; when by defendant, 149. to dissolve an injunction at tlie last seal, and in open term, the difference, 193. of course to dissolve an injunc- tion, when, 193. of course to stay proceedings on report, 166. to confirm report, when to be, 165 ; how many days' notice thereof, 165. Movable goods, when given on sentence, 25. Mulct, defendant liable to one on appearing before the second de- cree, 83. Murder, it was formerly held not to be murder to kill a seques- trator, but this resolution was afterwards altered, and why, 77. Name, error either in christian or surname in the citation fa- tal, 27. Ne exeat regno, writ of, 199. Nobility cited in writing, 83. Nobleman's cause not to be heard out of its turn, unless, &c., 151. Notice, what necessary on the exe- cution of a commission, 92. of motion, there must always be one day intervening be- tween the service and at- tendance on it, 97. Notices, affidavit must be made of the service of them, 97 ; which cannot be read till filed, 97. Notices, service of them, how to be, 97 ; left at the clerli in court's house not good, 97. of motion for payment of money out of court, must be per- sonal, 98; and upon cause shown for the continuance of an injunction, upon excep- tions filed to the answer, 98. what and to whom necessary, upon examining witnesses in town, 123, 133, 140. of executing a commission must be fourteen days, 128, 183. when tea days suflScient, 133. ten days necessary before the hearing in town causes, 14 ; in country ones, 151. of a decree, what time party has after it to apply for a re- hearing, 161. constructive, what, 275. of motion to confirm report, how many days, 165. when a purchaser witliout, shall prevail against one for valu- able consideration, 218. a third person with, will be liable, if one of the parties does not sign the articles, and there is no tender and refusal, 236. of marriage is notice of a joint- ure, 275. to the agent or attorney pre- sumptive notice to the party, 292. Oath of not proceeding out of mal- ice after the suit began, 22. required of tlie due service of 368 INDEX. the warrants on defendant's cleric in court before the mas- ter will report the answer in- sufficient, 99. Oath, plaintiff's, only against de- fendant's not sufficient ground for a decree, 137. where the commissioners are bound by it not to divulge the depositions before publi- cation, 139. of the examiner, 139. Observations on attachments, 71. Offense, none can be committed against the great seal, unless shown the party, except, &c., 163. Office, second, of the chancery, 11. of instruction, 12. examiner's, when whole set of interrogatories are not to be ffled there, 138. of the examiner, how far it ex- tends, 140. Officina brevium, what, 9. I'easons of its institution, 10. why it conld not award jury process, 13. Orator and patron, their differ- ence, 25. Orders, interlocutory ones need only be shown the party, not served, 40. By the modern practice all interlocutory orders must be passed, entered, and served. Order must he obtained to examine defendant as a witness, 136; and produced before the com- missioners or at the examiner's office, 137. for the publishing of deposi- tions de bene esse, how to be. 138 ; the same on defendant's being beyond sea, 138. Order absolute on a decree nisi, what affidavit and certificate necessary thereon, 153. rule for entering orders and decrees, 160. to revive must be served on the adverse clerk in court, 173. to enroll decree nunc pro tunc sliould always be passed and entered, and wh}^, 185. for a new trial, when it may be obtained, 161. Original of the English jurisdiction of the court of chancer}^, 19. bill, what, 64. and amended bill all one, 106. bill must be brought by a de- visee or assignee, 170. Origin of exceptions to answer, 95. Outlawry, plea of, 53. ~ how to be pleaded, 53. no good plea to bar executore, administrators, guardians, or prochein amys, 54. plea of, may be put in without a commission, 92. process of, 74. if a suit be put oft sine die, upon the allowance of it plaintiff must revive, and why, 173. Paper, cause how restored into it again, 154. where cause shall be struck out of it, 159. Paraphernalia of the wife shall not go in exoneration of a debt affecting the heir, 336. Parliament, what, 3. Parol proof of an agreement not INDEX. 369 reduced into writing not to be admitted concerning land, 226. Parties, proper, want of tliem good cause of demurrer, .14. objections for want of them must be made before the cause is gone into upon tlie merits, 155. want of proper ones, where cause for the dismission of the plaintiff's bill at the hearing, 155. Patron and orator, their difference, 25. Peers, lettere to them, when first introduced, and wiiy, 64. or peeresses not appearing on letter, subpoenaissues against them of com'se, 65. attachments against them con- demned in Queen EUzabefli's time, 65. proceedings against them when they do not appear upon be- ing served with subpoenas, 65. of the realm not liable to be attached for abusing persons serving tlie process of the court, 208. Penalty, injunction to be relieved against it, 190. Petition for subpoena to rejoin, what Is added to it in a country cause, 130. a paper one sufficient to appeal from chancery to the lords, 186. Petty bag, what makes it, 14. Plantations, English, whether se- questration will go tliither, 210. Pleadings, dilatories must be avoid- ed therein, 91. 24 Plea of outlawry, 53. how to be pleaded, 53. in what cases it need not be set down to be argued, 53. in executors, administrators, guardians, or prochein amys, not good, 54. in a former suit depending, 54. when it cannot be pleaded, 55. of a decree, wlien it need not be sworn to, 55. of a stated account, 56. of a release, 56. of a purchaser for valuable con- sideration without notice, 57. of a marriage settlement, 58. of the statute of frauds and •pei-juries, and of limitation of actions, GO. of fine and non-claim, 61. and demurrers cannot be put in togetlier, <33. peremptory ones, when to be put in, 58 ; same as the civil- ian's and canonist's excep- tions, 63. special one, when it cannot be put in without leave of the court, 91. or demurrer cannot be returned on a commission to answer, 92. of outlawi'y may be put in with- out a commission, 92. defendant often caught in the caption of it, 92. of a former suit in another court for the same matter, proceed- ings thereon, 93. costs on its being allowed or overruled, 93. replication to it is an allowance of it, 93. 370 INDEX, Portions, a reversionary term for raising them may be sold dur- ing the estate for life, 266. if to be constructively raised after the father's death, there the term shall not be sold during his life, 268. Possession quitted of lands con- veyed by fraud to another who sells for valuable consideration, &c., to a third, the lands are bound, 280. Power of judicature reserved to the ancient baronage, 8. of commissioners to adjourn, • 130. where the defective execution of it is made good in equity, 295. where it is extinguished by fine and recovery, and not by bargain and sale or lease and release, and where one ap- pendant is barred by either, 296. ' execution of it, when to be made good, 294. purchasers under it, 296. where the terms of it become impossible to be executed by fraud or accident, equity will relieve, 299. Practicers tampering with or sub- orning witnesses to stand com- mitted, 141. Prayer of bill of revivor, what, when demand is personal, 175. of a bill for a discovery, when not to be granted, 178. Praetor, how to proceed before him, 21. the plaintiff was obliged to de- clare his cause of action be- fore him, 23. Praetor, exceptions produced before him, 24. Primum decretum, or first decree, what, 33, 35. Probatory terms anciently three, 114; a fourth not easily ob- tained, 115; no fifth, 115, 121. Process, jury, why it could not be awarded by the officina brevi- um, 13. Proceedings on treasure trove, 15. Process at the suit of the King in outlawry, and at the suit of a common person, their differ- ence, 74. what issues without motion, SO. what on motion only, 81. shortened after a decree, 196. judicial must be returnable in term time, or at a certain day, 153. on breach of decree ought to be shortened, and why, 168. of the court, attachment issues for abusing party serving it, 207. where it shall run against the wife without the husband, 247. Prochien amy not barred by out- lawry, 54. must pay costs, 200. Proclamation, attachment with, 34. what, 36. Proctor, when service of subpoena on defendant's is good, 210. Proof of exhibits, how to be made, 139. of the receipt of money, what is, 226. parol, will not establish an agreement, 227. INDEX. 371 Prosecution, when Dill will be dis- missed for want of it, 108, 112 ; when not, 110. Publication, no cross bill after, 46. after it nothing in issue in the former cause can be exam- ined into. 107. till then depositions were kept secret, 116. how it passed, 118. when it might pass, 121. when rule' to be given for it, and when to be made abso- lute, 130. and hearing, always a term be- tween them, 131. of depositions, when to be, 138 ; how to obtain an order for it, 138. how when defendant is beyond sea, 138. where the commissioners are upon oath not to divulge the depositions before it, 139. of depositions not to be till publication be duly passed, 141. never enlarged but upon suffi- cient affidavits, 142. may be enlarged where the ad- verse party can suffer no in- jury, 142; and sometimes, though the cause be set down and the party be served with subpoena to hear judgment, 142. when affidavit necessary to en- large it, 143 ; the tenor of it, andby whomto be made, 143. memorable instance about en- larging it, 144. cause not to be set down the same term that it passes, 149. Purchase, what by the father shall be construed an advancement for the son, 264. made by tlie father in the name of the son, 264. by a trustee, 275. Purchaser without notice, when he shall prevail against one lor valuable consideration, 21o. conveyance for natural affec- tion does not bar him, 266. of a mortgage shall be paid full value, 275. pendente lite becomes a partner in the account, 277. from a volunteer with notiee of a bond debt shall not be af- fected by it, 287. for value without notice not bound bj' a decree in equity no more than by a judgment at law, except, &e., 293. for valuable consideration, who is, 296. what debts he must discharge, 277. under a power, 295. who are, in a marriage settle- ment, 297. under wills, what debts they must pay, 313. Quarto die post, or fourth day after its origin, 30. Eange of the exchequer court, 89. Keal estate, how eased by the per- sonal, 304. Kebellion, commission of, 18, 73, 77. houses may be broken open to execute it, and why, 75. issues to commissioners, and why, 76. 372 INDEX. Kebellion, commission of, why ser- geant-at-arms is the next pro- cess, 76. Receipt of money, what is proof of it, 227. Beconventio of the canonists, what, 45. same as our cross-bill, 46. Eecovery, when equity will not re- lievo on a covenant not to suffer one, 247. Reference of exceptions to the mas- ter, when and how to be made, 96. of depositions to a master is a , motion of course, 145; how to proceed therein, 146. of answer, when it cannot be for insufflciency, 176. Register for writs, 19. in tlie reign of King Edward the first they began to keep close to tlie form of it, 19. how ho malces up the decrees, 159. appearance with him and the six clerk, its difference, 82. on attachment, and no answer in four days, defendant will stand committed on motion, 83. Regulation of attorneys and solicit- ors, 212. Rehearing, what entitles a party to it, 159. what deposit to be made tliere- on, 160. caveat necessary thereon, 100. wliat time the party has to'ap- ply for one after notice of decree, 161. exhibit may be proved vivd voce thereon, 180. Rejoin, subpoena to, mistakes in it cured by tlie appearance of the party, 28. Rejoinder, 112; present practice therein, 122, 130. in commission in four days, how obtained, 121; issuing before replication filed enti- tles defendant to costs, 122. Release, plea of, 50. Relief of a bill, wlieu to be de- murred to, 50. when not, 63. Rent charge, if granted bj' the les- see of a bishop who renews the term, shall subsist duringthe re- newal ; if tlio bishop refuses to renew, the grantee must be con- tent with tlie lives in being, 238. Replication to a plea is an allow- ance of it, 93. in the civil law, wliat, 107. is tlie contestation of the an- swer, 111; must be within three terms, 108, 111, 112. subpoena to rejoin issuing be- fore it be filed entitles de- fendant to costs, 122. when to be filed bj' the present practice, 130. Report, liow the master makes it, 99. before hearing is 15s.; after, 25s., 100. exceptions to it must be signed by counsel, 102. wlien to be excepted to, 103. wliere tlie parlies will be or- dered to attend the master de die in diem, to speed it after a decree, 102. when master prepares it, and proceedings thereon, 164. INDEX. 373 Eeport, ancient rule of objecting to it, 164 ; Inconveniences of the modern one, 1G4; advantage of the old one, 165. motion of coiii'se to stay pro- ceedings tiiereon, 166. motion to confirm it, 165 ; how many days' notice thereof, 165. Restraint on marriage without a devise over, 329. Keturn of subpcena must be on a court day, 28. may be immediately in vaca- tion time, upon a proper affi- davit, 28, 38. subpoena having a common one or an immediate one, when to appear, 29. of the writ, defendant had four days after it to appear, 31. was twofold, 37. what mistakes therein will vi- tiate the writ, 38. of commission, wlien to be, 132. Kule of evidence in equity same as at law, 145. Beversion in any terms may be sold during tlie estate for life, 267. lie view, bill of, when necessary, 181 ; cannot be filed without leave of court, 181 ; party must observe the terms enjoined him, upon having leave grant- ed, 181. deposit thereon, how much, 182. no second, and why, 182 ; who is entitled to it, 182; when it cannot be brought, 183; can examine nothing on it that was not in issue in the original cause, 182. Revivor of proceedings by the civil and canon law, liow, wlien, and against whom, 1G9. bill of, who is entitled to it, and who not, 169. no answer requisite, 170. what good cause of demurring to it, 170. what may be inserted in it, 170. cannot be in part, 171. need not be against feme sole, upon marriage after answer, 171. when by plaintiff, in a suit against baron and feme, 171. when at feme plaintiff's elec- tion, 172. when not necessary by the baron, 172. when not required for a feme plaintiff, though sire mari'ies pendente lite, 171. must be by husband of feme plaintiff, 171. by executor durante . minore cetate not necessary when the infant comes of age, 173. when not necessary, thougli death happens, 172. may be by some of the plaint- iffs witliout the rest, 173. must be by plaintiff', if the suit be put oft' sine die upon the allowance of an outlawry, and why, 173. bill of, or subpcena scire facias, when proper, 174. order for it must be served on the adverse clerk in court, 175. not necessary wliere a single woman is defendant, 174. ■ bill of , not for costs only, 17S. 374 INDEX. Bevivor, bill of, how to be drawn, 205. Reus or defendant, how long he has to put in his exceptions, 30. when his body was taken in execution, 26. Komans, how thej'^ anciently pro- ceeded among them to oblige a party to answer for an injury, 20. citations made use of among them, 20. careful that they did not give sentence without hearing both sides, 25. Kule for plaintiff's replying in the exchequer. 111, 112. for publication, when to be given, and when to be made absolute, 130. that the heir shall not be bound down by one single trial, 161. ancient one of serving a decree good, and why, 162. general one in regard to the great seal, to which bank- rupts and idiots are excep- tions, 164. Kules of mergers of terms, 258. Sale of lands, 280. Satisfaction, what is, 328. Scandal and impertinences entitle parties to costs, 203. Scandal, what cases not thought so by the court, 203. where the court will order the master to expunge it, 204. Scire facias, when jiroper, 85. Seal, great, no oflense can be com- mitted against it, unless shown the party, except, &c., 164. great one, general rule con- cerning it, to which bank- rupts and idiots are excep- tions, 164. Seal, the difference of moving to dissolve an injunction then and in open term, 193. Secundum decretum, what, 33, 35. Security not to be given by execu- tors, and why, 176. of a bond is only against the person, but after judgment against the estate, 224. Sentence, what is an interlocutory one by the canon and civil law, 179. a definitive one, what, 179. Sequestration, 18, 76. before a subpoena against men in custody, 18. when that can only be had against a defendant, 36. issues against peers not appear- ing upon being served with subpoenas, 65. for a personal duty, if defend- ant dies after it whose heir is not bound, it is determined, 85. whether it will go to the Eng- lish plantations, 210. Sequestrator, it was formerly lield no murder to kill one in tiie execution of his office, 77. but this resolution was after- wards altered, and why, 77. his duty, 78. Sergeant-at-arms, 18, 76, 78. next process to commission of rebellion, and wliy, 76. when moved for commission of rebellion, must be produced, 78. Settlement after marriage without INDEX. 875 articles is a voluntary convey- ance, 248. Sheriffs, yasiicies to them, 1. liable to an amercement for not returning an attacliment, 70. how to proceed against him in the exchequer, 70. cannot enter freehold to exe- cute, process of contempt, and why, 74. Solicitor committed for malprac- tice, what he must do to be discharged, 199. and attorneys regulated, 212. Statute, 2 West. v. 24, 16, 20. writs founded on it, 16. of mortmain, how avoided, 17. 4 and 5 Ann, c. 16, sec. 23, p. 26 ; sec. 22, p. 64 ; sec. 23, p. 91 ; sec. 24, p. 109. 5 Geo. 2, c. 25, p. 36. Westm. 2d, pp. 82, 86. 13 Ed. 1, c. 18, p. 86. 2 Geo. 2, c. 23, p. 212. de donis binds a court of equity, 221. de donis does not extend to copy-hold or trust estates, 221. of frauds does not affect parol agreement, if partly exe- cuted, 226. 3 and 4 Will, and Mar., 310. Strangers not entitled to a discov- ' eiy of assets, 176. Subpoena, when first invented, and by wliora, 17. sequestration before it against men in custody, 18. to rejoin or hear judgment, mistalses in them cm'ed by appearance, 28. Subpoena, return of it must ,be on a court day, 28. may be returnable immediately in the vacation, upon a proper affidavit, 28, 38. when to appear to a common one, and when to one return- able immediately in chan- cery, 29, 31 . when in the exchequer, 31. when defendant had four days' time to appear to one return- able in the exchequer, 32. not appearing to one a con- tempt, 34. by the common law was a pro- cess to bring a witness in to attest the truth, 36. when the chancery first used it, 37. ■ return of it was twofold, 37. what mistakes will vitiate it, 38. what in the return, 39. what in the form, 39. no more than three defendants can be put in one, 39. no costs unless it be served, 39. husband and wife but as one person in it, 39. charges of one, 39. where many plaintiffs in it, need not all be named, 40. if the label and body of It do not agree, not good service, and no contempt not to ap- pear, 40. or copy of it must be left with defendant to enforce his ap- pearance, 40. Note : leaving copy of subpoena with defend- ant must he understood of the exchequer practice only, not chancery. 376 INDEX. Siibpcena, how to be sei-ved, 40, 150. where service at first defend- ant's lodgings not good, he having left them a year be- fore, 40, in margin. where service of it on defend- ant's clerk in court good, 41. service on either husband or wife good service on both by the practice of the exchequer, but quere in chancei'y, 41. body of it to be reserved for the last defendant, 41. may be left at defendant's house, but label must be served personally, 40, 151. service of it on one defendant in England ordered to be good service on the other abroad, 42. jvhen it must be served, 42. abusing party serving it inciu's a contempt and commit- ment, 42. service of it on a person in town, though he resides alto- gether in the country, obliges him to answer in eight daj's, and he is not entitled to a commission into the country, 43. unless, &c., not to issue till bill filed, 64. is to attend the extraordinary jurisdiction, 64. issues of course against peers and peeresses, on their not appearing upon being served with a letter, 64. peers not appearing thereon, sequestration issues, 65. peers not appearing upon being served with them, how to proceed against them, QQ. Subpoena, returnable at a day cer- tain in term time, 87. for costs must be served per- sonally, 100. new one not necessary for bet- ter answer, 101; enough to serve his olei-k in court, 102. supplemental bill, when and how obtained, 107. seldom refused in matters of account, 108. after one, court may lengthen time for publication, 107. adfaciendum attornatum,\vhere requisite, 113. to rejoin, what, 120; being made out before replication filed, defendant is entitled to costs, 122. issues for summoning witnesses on a commission, 126. to rejoin, when usual to apply for it, 130. to hear judgment must be served fourteen days before tiie hearing, and whjf, 148 ; how to proceed if he does appear upon being served; how if he does not, 149 ; how- to be made out, 150. affidavit of service of it neces- sary in order to dismiss plaintifl''s bill, 154. scire facias not to be demurred to, 174. scire facias, when proper, 174 ; not till after enrollment of the decree, 177. when plaintiff must sue it out, 188. when service of it on defend- INDEX. 377 ant's clerk in court, with- out the usual affidavit, will be good, 209; when on his attorney at law, 210; when on his agent or proctor, 210. Subpoena, when two distinct bills may be grounded on the same, 213. Suggestions, what necessary to libel for examining witnesses, 118. false ones, persons dr.awn into chanceiy by them recover damages, 17. Suit, contesting it, what, 22. former one depending, when no good plea, 55. in equity cannot be barred by a judgment at Law, 56. Suits, injunction to stay a multi- plicitj' of them, 191. Suitor arrested in court will be discharged, 199. Supplex libellus, what, 23. Supplicavit, when granted, 198. same in chancery as the lord chief justice's warrant at law, 198. Surrender of copy-hold estate sup- plied in equity, 221. Tallage, what, 6. by subsidy, 6. Taxation always granted by the commons, 7. Taxing costs, no exception to be taken thereto, 202. Tenants,- motion for them to at- torn, 79. Tenant in tail, where he shall have an injunction against tenant for life, 189. Tenant in tail, for life, where an injunction sliall be granted against him, 189. without impeachment of waste, when he shall be enjoined from committing waste, 189. if tenant in tail of a trust es- tate contracts debts by mort- gage or judgment after issue born, it binds the issue and temainderman, 223. in tail of a trust cannot have a specific execution of the trust by having it decreed to him in fee, 224. in tail, lease made good by him, 291. Tenor of the bill going vrtth the commission taken away, 90. Tenure in burgage, 6. Term, vacation between each, why originally appointed, 37. reputed but as one day in law, 87. time, if answer is put in then, exceptions to it must be filed then too, 94. always a whole one between the passing publication and the hearing, 131. time, commission cannot be ex- ecuted then, unless, &c., 133. cause not be set down tlie same as publication passes, 149. time, judicial process must be returnable then, or at a cer- tain day, 153. diflference of moving to dissolve an injunction then and at the last seal, 193. probatory, anciently three, 114; a fourth not easily obtained, : X15; no fifth, 115, 121. 378 INDEX. Terras, rules concerning the merger of thein, 258. to prevent dower, 259. raised for portions, if the child- ren die before the time of payment, merge in the in- heritance, 261 ; so if the share of a child who dies before they commence, 261. reversion in them may be sold during the estate for life, 26G. for years, 270. if a man takes mortgaged ones carved out of the inheritance in his own name, they are liable to liis debts, like any other chattel, 337. Tertius interveniens, or interplead- er, its use and effect, 47. how to proceed thereon, 47. must be before the decree, 48. where made defendant, his bill must be dismissed, 48. Title, bad one cannot be helped by fraudulently buying in the good one, 242. Treasure trove, proceedings on it, 15. Trial, new, where an order may be obtained for it, 161. injunction to stay it, 190. Trinity vacation was appointed for the getting in of the harvest, 37. Trust estates not within the statute de donis, 221. terms after 27 H. S, c. 10, con- tinued under the jurisdic- tion of the chancery, as also where tlrefe was a second use or trust which tlie com- mon law rejected, 254. Trust, alienee of tenant for life with notice is subject to it ; if with- out notice, the trustee is liable out of his own estate, 256. of a term for years precedent to the marriage to raise por- tions, shall bar the mother's dower, unless paid, 259. term, where there shall be an equitable merger of it in the inheritance, and where not, 257, 266. term to protect an inheritance follows it, luiless, &c., 338. term, court will order it to be assigned to a remote heir, according to the course of descents, against the chUd- reu, 339. Trustee or executor shall have no private advantage by buying in an incumbrance at a low rate, 275. when he may sell, 278. if a bill be filed against him by creditors, he cannot pur- chase pendente lite without seeing them discharged, 314. if he or an executor, being solv- ent, lays out the money at interest, he shall have the advantage, otherwise if in- solvent, 334. Trustees, purchase by them, 275. where they may sell, 278. when liable for a breach of trust, 297. when they must see to the pay- ment of debts, 313 ; if they sell more than sufficient, the vendee not affected, unless, &c., 314. INDEX. 879 Trusts not within tlie statute of limitations, 61. statute of frauds does not ex- tend to tiiem, 228. Vacation, subpoena in it may be returnable immediately on a proper affidavit, 28. between each term settled for the sake of devotion and harvest, 38. time, if answer be put in then, the exceptions must be filed then too, 94. Vendee, when he must see to the payment of legacies, 314. Verbal, citations so, or by messen- ger, 21. Volunteer pursuing a purchaser at law shall be obliged to discover his title in equity, 280. if he sells for valtiable consider- ation, the lauds are forever bound, 280. Volunteers relieved, 299. equity will not marshal assets m favor of them, 302. what legatees are such, 304. Use of attachment, 18. of citations, 21. War, the bai-ons', 3. break the power of the justi- ciar into several courts, 8. Warrants, there must always be one day intervening between the service and attendance on them, unless, &c., 97; when this rule is dispensed with, 99. oath required of the service of them before answer will be reported insufficient, 100. Waste, when tenant for life, with- out impeachment of it, shall be enjoined from committing it, 189. Westminster, statute of, the 2d, c. 24, IG, 20. Whitsuntide occasioned one of the vacations, 37. Wife and husband accounted but one person in the subpoena, 39. service of subpoena on either good service on both in the exchequer, 41. Wife, when she may make a new defense, and put in a new an- swer to a bill filed against her and her husband after his death, 158. Will, nothing necessary but the tes- tator's having animus testandi, 289. when it must have all the re- quisites appointed by the statute of frauds, 295. what debts a purchaser under it must pay, 313. cannot be overthrown by parol evidence, 329. nuncupative, though not in writing, when good, 333. nuncupative, 336. initial letters of legatees' names in it not a sufficient description, 336. Witness, by the common law, was brought in by subpoena to at- test the truth, 36. Witnesses were anciently examined by the master on interrogato- ries, 90. when first set were to be pro- duced, 114. 380 INDEX. Witnesses, anciently examined by - the judge of tlie court, 115. their charges, 116. examination of them to per- petuate their testimony, 117. method of examining them in perpetuam rei memoriam,l'i 7. when not needful to insert their age in the libel for ex- amination, 118. how to be examined, 126. by whom to be paid, 126. upon a commission must be subpoenaed, 126. to be summoned by the com- missioners, 126. contempt in them not to ap- pear, and attaoliment issues, 126. summoned but not subpoenaed not appearing, court will order them to attend and be examined at their own ex- pense, 127. method of proceeding on a commission to examine, 132. examination of a commission- er as such, how to be, 136. order must be obtained to ex- amine defendant as such, 136; and produced before the commissioners, or at the examiner's office, 137. their examination in chief, 137. if a bill to perpetuate their tes- timony prays relief, it will be dismissed, 137; but the depositions may be used at law, 138. practicers tampering or sub- orning them to stand com- mitted, 141. how to be examined in town, 123, 140. Witnesses, when they cannot be ex- amined without leave of the court, 143. when to be committed for not attending to be examined, 143. their credit, how to be exam- ined, 144; seldom done, 145. Witness, party cannot examine a single one, but may cross-ex- amine upon an attachment for the breach of an injunction, 195. Writing, nobility cited in it, 33. necessary to an agreement con- cerning land, 226. Writs, what made out by the clerk of the crown, 9. Writ of subpoena, when first in- vented, and by whom, 17. attachment, 18. commission of rebellion, 18. sequestration, 18. Writs, register for them, 19. Writ of subpoena to rejoin or hear judgment, mistakes in it cured by appearance, 28. defendant had four days to ap- pear- in, after the return of it, 31. what mistakes will vitiate it, 38. of ne exeat regno, 199. of execution of decree not al- lowed till it be signed and enroUed, 162, 168 ; if a party be served with it, and does not attend to be examined, it is a motion of course to have him committed, 1G3. of the decree and report, when and by whom to be made, 167.