ORDINANCES IN CHANCERY. of their short note to draw up some more full re- 40. The registers, upon sending of their draught unto the counsel of the parties, are not to respect the interlineations, or alterations, of the said counsel, be the said counsel never so great, farther, than to put them in remembrance of that which was truly delivered in court, and so to conceive the order, upon their oath and duty, without any farther respect. 41. The registers are to be careful in the penning and drawing up of decrees, and special matters of difficulty and weight; and, therefore, when they present the same to the lord chancellor, they ought to give him understanding which are such decrees of weight, that they may be read and reviewed before his lordship sign them. 42. The decrees granted at the rolls are to be presented to his lordship, with the orders whereupon they are drawn, within two or three days after every term. 43. Injunctions for possession, or for stay of suits after verdict, are to be presented to his lordship, together with the orders whereupon they go forth, that his lordship may take consideration of the order before he sign them. 44. Where any order upon the special nature of the case shall be made against any of these general rules, there the register shall plainly and expressly set down the particulars, reasons, and grounds, moving the court to vary from the general use. 45. No reference upon a demurrer, or question touching the jurisdiction of the court, shall be made to the masters of the chancery; but such demurrers shall be heard and ruled in court, or by the lord chancellor himself. 46. No order shall be made for the confirming or ratifying of any report without day first given, by the space of a sevennight at the least, to speak to it in court. 47. No reference shall be made to any masters of the court, or any other commissioners to hear and determine, where the cause is gone so far as to examination of witnesses, except it be in special causes of parties near in blood, or of extreme poverty, or by consent and general reference of the estate of the cause, except it be by consent of the parties to be sparingly granted. 48. No report shall be respected in court, which exceedeth the warrant of the order of reference. 49. The masters of the court are required not to certify the state of any cause, as if they would make breviate of the evidence on both sides, which doth little ease the court, but with some opinion; or, otherwise, in case they think it too doubtful to give opinion, and therefore make such special certificate, the cause is to go on to a judicial hearing, without respect had to the same. 50. Matters of account, unless it be in very prepared by reference, with this difference, neverweighty causes, are not fit for the court, but to be theless, that the cause comes first to a hearing; and upon the entrance into a hearing, they may receive some direction, and be turned over to have the accounts considered, except both parties, before a hearing, do consent to a reference of the examination of the accounts, to make it more ready for a hearing. nation of court rolls, upon customs and copies, of an answer, without showing of some particular ant's answer, there needeth no farther hearing of hearing of the cause, that the plaintiff had not 54. In all suits where it shall appear, upon the unto the defendant his utmost costs, to be assess"probabilem causam litigandi," he shall pay ed by the court. shall be found of an immoderate length, both the 55. If any bill, answer, replication, or rejoinder party and the counsel under whose hand it passeth shall be fined. or other pleadings, or any interrogatory, any matter 56. If there be contained in any bill, answer, libellous or slanderous against any that is not party to the suit, or against such as are parties to tion of the settled authorities of any of his majesty's the suit, upon matters impertinent, or in derogacourt; such bills, answers, pleadings, or interrogatories shall be taken off the file and suppressed, or ignominy, as shall be thought fit, for the abuse and the parties severally punished by commitment of the court; and the counsellors at law, who have set their hands, shall likewise receive reproof or punishment, if cause be. charge the suit shall be heard first upon every day 57. Demurrers and pleas which tend to disof orders, that the subject may know whether he shall need farther attendance or no. ive, contained in the bill itself, and no foreign 58. A demurrer is properly upon matter defectcharge or stay the suit, as that the cause hath been matter; but a plea is of foreign matter to disformerly dismissed, or that the plaintiff is outlawed, or excommunicated; or there is another bill depending for the same cause, or the like: and such plea may be put in without oath, in case where the matter of the plea appear upon record; but if it be any thing that doth not appear upon the commissioners, or else in divers rolls, whererecord, the plea must be upon oath. of each one shall be so subscribed. 59. No plea of outlawry shall be allowed without pleading the record "sub pede sigilli ;" nor plea of excommunication, without the seal of the ordinary. 60. Where any suit appeareth upon the bill to be of the natures which are regularly to be dismissed according to the fifteenth ordinance, such matter is to be set forth by way of demurrer. 61. Where an answer shall be certified insufficient, the defendant is to pay costs: and if a second answer be returned insufficient, in the points before certified insufficient, then double costs, and upon the third treble costs, and upon the fourth quadruple costs, and then to be committed also until he hath made a perfect answer, and to be examined upon interrogatories touching the points defective in his answer; but if any answer be certified sufficient, the plaintiff is to pay costs. 62. No insufficient answer can be taken hold of after replication put in, because it is admitted sufficient by the replication. 63. An answer to a matter charged as the defendant's own fact must be direct, without saying it is to his remembrance, or as he believeth, if it be laid down within seven years before; and if the defendant deny the fact, he must traverse it directly, and not by way of negative pregnant; as if a fact be laid to be done with divers circumstances, the defendant may not traverse it literally as it is laid in the bill, but must traverse the point of substance: so if he be charged with the receipt of one hundred pounds, he must traverse that he hath not received a hundred pounds, or any part thereof; and if he have received part, he must set forth what part. 64. If a hearing be prayed upon bill and answer, the answer must be admitted to be true in all points, and a decree ought not to be made, but upon hearing the answer read in court. 65. Where no counsel appears for the defendant at the hearing, and the process appears to have been served, the answer of such defendant is to be read in court. 66. No new matter is to be contained in any replication, except it be to avoid matter set forth in the defendant's answer. 67. All copies in chancery shall contain fifteen lines in every sheet thereof, written orderly and unwastefully, unto which shall be subscribed the name of the principal clerk of the office where it is written, or his deputy, for whom he will answer, for which only subscription no fee at all shall be taken. 68. All commissions for examination of witnesses shall be "super interr. inclusis" only, and no return of depositions into the court shall be received, but such only as shall be either compromised in one roll, subscribed with the name of 69. If both parties join in commission, and upon warning given the defendant bring his commissioners, but produceth no witnesses, nor ministereth interrogatories, but after seek a new commission, the same shall not be granted: but, nevertheless, upon some extraordinary excuse of the defendant's default, he may have liberty granted by special order to examine his witnesses in court upon the former interrogatories, giving the plaintiff or his attorney notice, that he may examine also if he will. 70. The defendant is not to be examined upon interrogatories, except it be in very special cases, by express order of the court, to sift out some fraud or practice pregnantly appearing to the court, or otherwise upon offer of the plaintiff to be concluded by the answer of the defendant without any liberty to disprove such answer, or to impeach him after a perjury. 71. Decrees in other courts may be read upon hearing without the warrant of any special order: but no depositions taken in any other court are to be read but by special order; and regularly the court granteth no order for reading of depositions, except it be between the same parties, and upon the same title and cause of suit. 72. No examination is to be had of the credit of any witness but by special order, which is sparingly to be granted. 73. Witnesses shall not be examined "in perpetuam rei memoriam," except it be upon the ground of a bill first put in, and answer thereunto made, and the defendant or his attorney made acquainted with the names of the witnesses that the plaintiff would have examined, and so publication to be of such witnesses; with this restraint, nevertheless, that no benefit shall be taken of the depositions of such witnesses, in case they may be brought "viva voce" upon the trial, but only to be used in case of death before the trial, or age, or impotency, or absence out of the realm at the trial. 74. No witnesses shall be examined after publication, except it be by consent, or by special order, "ad informandam conscientiam judicis," and then to be brought close sealed up to the court to peruse or publish, as the court shall think good. 75. No affidavit shall be taken or admitted by any master of the chancery, tending to the proof or disproof of the title, or matter in question, or touching the merits of the cause; neither shall any such matter be colourably inserted in any affidavit for serving of process. 76. No affidavit shall be taken against affidavit, as far as the masters of the chancery can have knowledge; and if any such be taken, the latter affidavit shall not be used nor read in court, 77. In case of contempts grounded upon force or ill words, upon serving of process, or upon words of scandal of the court, proved by affidavit, the party is forthwith to stand committed; but, for other contempts against the orders or decrees of the court, an attachment goes forth: first, upon an affidavit made, and then the party is to be examined upon interrogatories, and his examination referred; and if, upon his examination, he confess matter of contempt, he is to be committed; if not, the adverse party may examine witnesses to prove the contempt: and, therefore, if the contempt appear, the party is to be committed; but, if not, or if the party that pursues the contempt do fail in putting in interrogatories, or other prosecution, or fail in the proof of the contempt, then the party charged with the contempt, is to be discharged with good costs. 78. They that are in contempt, specially so far as proclamation of rebellion, are not to be heard, neither in that suit, nor any other, except the court of special grace suspend the contempt. 79. Imprisonment upon contempt for matters past may be discharged of grace, after sufficient punishment, or otherwise dispensed with: but, if the imprisonment be for not performance of any order of the court in force, they ought not to be discharged except they first obey, but the contempt may be suspended for a time. 80. Injunctions, sequestration, dismissions, retainers upon dismissions, or final orders, are not to be granted upon petitions. 81. No former order made in court is to be altered, crossed, or explained upon any petition; but such orders may be stayed upon petition for a small stay, until the matter may be moved in court. 82. No commission for examination of witnesses shall be discharged; nor no examinations or depositions shall be suppressed upon petition, except it be upon point of course of the court first referred to the clerks, and certificate thereupon. 83. No demurrer shall be overruled upon petition. 84. No "scire facias" shall be awarded upon recognisances not enrolled, nor upon recognisances enrolled, unless it be upon examination of the record with the writ; nor no recognisance shall be enrolled after the year, except it be upon special order from the lord chancellor. 85. No writ of "ne exeat regnum," prohibition, consultation, statute of Northampton, "certiorari” special, or "procedendo" special, or "certiorari" or "procedendo" general, more than once in the same cause; "habeas corpus," or "corpus cum causa, vi laica removend," or restitution thereupon, "de coronatore et viridario eligendo," in case of a moving "de homine repleg. assiz." or special patent, "de ballivo amovend', certiorari super præsentationibus fact. coram commissariis sewar'," or "ad quod dampnum," shall pass with out warrant under the lord chancellor's hand, and signed by him, save such writs " ad quod dampnum," as shall be signed by Master Attorney. 86. Writs of privilege are to be reduced to a better rule, both for the number of persons that shall be privileged, and for the case of the privilege: and as for the number, it shall be set down by schedule: for the case, it is to be understood, that besides persons privileged as attendants upon the court, suitors and witnesses are only to have privilege "eundo, redeundo, et morando," for their necessary attendance, and not otherwise; and that such writ of privilege dischargeth only an arrest upon the first process, but yet, where at such times of necessary attendance the party is taken in execution, it is a contempt to the court, and accordingly to be punished. 87. No "supplicavit" for the good behaviour shall be granted, but upon articles grounded upon the oath of two at the least, or certificate upon any one justice of assize, or two justices of the peace, with affidavit that it is their hands, or by order of the Star Chamber, or chancery, or other of the king's courts. 88. No recognisance of the good behaviour, or the peace, taken in the country, and certified into the petty bag, shall be filed in the year without warrant from the lord chancellor. 89. Writs of "ne exeat regnum" are properly to be granted according to the suggestion of the writ, in respect of attempts prejudicial to the king and state, in which case the lord chancellor will grant them upon prayer of any of the principal secretaries without cause showing, or upon such information as his lordship shall think of weight: but otherwise also they may be granted, according to the practice of long time used, in case of interlopers in trade, great bankrupts, in whose estate many subjects are interested, or other cases that concern multitudes of the king's subjects, also in cases of duels, and divers others. 90. All writs, certificates, and whatsoever other process "ret. coram Rege in Canc." shall be brought into the chapel of the rolls, within convenient time after the return thereof, and shall be there filed upon their proper files and bundles as they ought to be; except the depositions of witnesses, which may remain with any of the six clerks by the space of one year next after the cause shall be determined by decree, or otherwise be dismissed. 91. All injunctions shall be enrolled, or the transcript filed, to the end that, if occasion be, the court may take order to award writs of "scire facias" thereupon, as in ancient time hath been used. 92. All days given by the court to sheriffs to return their writs, or bring in their prisoners upon writs of privilege, or otherwise between party and party, shall be filed, either in the register's office, or in the petty-bag respectively; and all recogni sances taken to the king's use, or unto the court, | the commissioners himself, to the end they may be shall be duly enrolled in convenient time, with persons of convenient quality, having regard to the clerks of the enrollment, and calendars made the weight of the cause, and the dignity of the of them, and the calendars every Michaelmas court from whence the appeal is. term to be presented to the lord chancellor. 93. In case of suits upon the commissions for charitable uses, to avoid charge, there shall need no bill, but only exceptions to the decree, and answer forthwith to be made thereunto; and thereupon, and upon sight of the inquisition, and the decree brought unto the lord chancellor by the clerk of the petty-bag, his lordship, upon perusal thereof, will give order under his hand for an absolute decree to be drawn up. 94. Upon suit for the commission of sewers, the names of those that are desired to be commissioners are to be presented to the lord chancellor in writing; then his lordship will send the names of some privy counsellor, lieutenant of the shire, or justices of assize, being resident in the parts for which the commission is prayed, to consider of them, that they be not put in for private respects; and upon the return of such opinion, his lordship will give farther order for the commission to pass. 95. No new commission of sewers shall be granted while the first is in force, except it be upon discovery of abuse or fault in the first commissioners, or otherwise upon some great or weighty ground. 98. Any man shall be admitted to defend "in forma pauperis," upon oath, but for plaintiff's they are ordinarily to be referred to the court of requests, or to the provincial councils, if the case arise in those jurisdictions, or to some gentlemen in the country, except it be in some special cases of commiseration, or potency of the adverse party. 99. Licenses to collect for losses by fire or water are not to be granted, but upon good certificate; and not for decays of suretyship or debt, or any other casualties whatsoever; and they are rarely to be renewed; and they are to be directed ever unto the county where the loss did arise, if it were by fire, and the counties that abut upon it, as the case shall require; and if it were by sea, then unto the county where the port is, from whence the ship went, and to some sea-counties adjoining. 100. No exemplification shall be made of letters patents, "inter alia," with omission of the general words; nor of records made void or cancelled; nor of the decrees of this court not enrolled; nor of depositions by parcel and fractions, omitting the residue of the depositions in court, to which the hand of the examiner is not subscribed; nor of records of the court not being enrolled or filed; be duly certified to this court, and orderly filed here; nor of any records upon the sight and examination of any copy in paper, but upon sight and examination of the original. 96. No commission of bankrupt shall be granted but upon petition first exhibited to the lord chancel-nor of records of any other court, before the same lor, together with names presented, of which his lordship will take consideration, and always mingle some learned in the law with the rest; yet so as care be taken that the same parties be not too often used in commissions; and likewise care is to be taken that bond with good surety be entered into, in 2001. at least, to prove him a bankrupt. 101. And because time and experience may discover some of these rules to be inconvenient, and some other to be fit to be added; therefore 97. No commission of delegates in any cause his lordship intendeth in any such case from time of weight shall be awarded, but upon petition to time to publish any such revocations or addipreferred to the lord chancellor, who will name tions. AN EXPOSTULATION TO THE LORD CHIEF JUSTICE COKE. MY VERY GOOD LORD, silence." There is a time when the words of a Though it be true, that "he who considereth poor simple man may profit; and that poor man the wind and the rain, shall neither sow nor reap;" in "The Preacher," which delivered the city by yet, "there is a season for every action," and so his wisdom, found that without this opportunity "there is a time to speak, and a time to keep the owner both of wisdom and eloquence lose but EXPOSTULATION TO LORD COKE. wander, as you often delight to do, you wander indeed, and give never such satisfaction as the curious time requires. This is not caused by any natural effect, but first for want of election, when you, having a large and fruitful mind, should not so much labour what to speak, as to find what to leave unspoken: rich soils are often to be weeded. would be observed; speech must be either sweet Secondly, You cloy your auditory when you or short. their labour, and cannot charm the deaf adder. I while you speak in your own element, the law, God, therefore, before his Son that bringeth no man ordinarily equals you; but when you mercy, sent his servant, the trumpeter of repentance, to level every high hill, to prepare the way before him, making it smooth and straight: and as it is in spiritual things, where Christ never comes before his waymaker hath laid even the heart with sorrow and repentance, since self-conceited and proud persons think themselves too good and too wise to learn of their inferiors, and therefore need not the physician, so, in the rules of earthly wisdom, it is not possible for nature to attain any mediocrity of perfection, before she be humbled by knowing herself and her own ignorance. Not only knowledge, but also every other gift, which we call the gifts of fortune, have power to puff up earth: afflictions only level these mole hills of pride, plough the heart, and make it fit for wisdom to sow her seed, and for grace to bring forth her increase. Happy is that man, therefore, both in regard of heavenly and earthly wisdom, that is thus wounded to be cured, thus broken to be made straight; thus made acquainted with his own imperfections, that he may be perfected. Supposing this to be the time of your affliction, that which I have propounded to myself is, by taking this seasonable advantage, like a true friend, though far unworthy to be counted so, to show you your true shape in a glass; and that not in a false one to flatter you, nor yet in one that should make you seem worse than you are, and so offend you; but in one made by the reflection of your own words and actions; from whose light proceeds the voice of the people, which is often not unfitly called the voice of God. But, therein, since I have purposed a truth, I must entreat liberty to be plain, a liberty that at this time I know not whether or no I may use safely, I am sure at other times I could not; yet, of this resolve yourself, it proceedeth from love and a true desire to do you good; that you knowing the general opinion, may not altogether neglect or contemn it, but mend what you find amiss in your self, and retain what your judgment shall approve; for to this end shall truth be delivered as naked as if yourself were to be anatomized by the hand of opinion. All men can see their own profit, that part of the wallet hangs before. A true friend (whose worthy office I would perform, since, I fear, both yourself and all great men want such, being themselves true friends to few or none) is first to show the other, and which is from your eyes. First, therefore, behold your errors. course you delight to speak too much, not to hear In disother men; this, some say, becomes a pleader, not a judge; for by this sometimes your affections are entangled with a love of your own arguments, though they be the weaker; and rejecting of those, which, when your affections were settled, your own judgment would allow for strongest. Thus, and books especially human; and have no exThirdly, You converse with books, not men, cellent choice with men, who are the best books. for a man of action and employment you seldom converse with, and then but with your underlings; not freely, but as a schoolmaster with his scholars, ever to teach, never to learn: but if sometimes you would in your familiar discourse hear others, and make election of such as know what they speak, you should know many of these tales you tell to be but ordinary; and many other things, ties, to be but stale. As in your pleadings you which you delight to repeat and serve in for novelwere wont to insult over misery, and to inveigh bitterly at the persons, which bred you many enemies, whose poison yet swelleth, and the effects now appear, so are you still wont to be a little careless in this point, to praise or disgrace upon slight grounds, and that sometimes untruly; so that your reproofs or commendations are for the most part neglected and contemned; when the censure of a judge, coming slow but sure, should be a brand to the guilty, and a crown to the virtuous. out respect of the person's dignity or your own: You will jest at any man in public, withthis disgraceth your gravity, more than it can advance the opinion of your wit; and so do all actions which we see you do directly with a touch of vainglory, having no respect to the true end. You make the law to lean too much to your opinion, whereby you show yourself to be a legal tyrant, striking with that weapon where you please, since you are able to turn the edge any way for thus the wise master of the law gives warning to young students, that they should be wary, lest, while they hope to be instructed by your integrity and knowledge, they should be deceived with your skill armed with authority. Your too much love of the world is too much seen, when, having the living of a thousand, you relieve few or none: the hand that has taken so bowels of compassion, as if you thought all too much, can it give so little? Herein you show no little for yourself; or that God hath given you all that you have, if you think wealth to be his gift, I mean that you get well, for I know sure the rest is not, only to that end you should still gather more, and never be satisfied; but try how much you would gather, to account for all at the great |