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THE LORD CHANCELLOR BACON,
FOR THE BETTER AND MORE REGULAR ADMINISTRATION OF
JUSTICE IN THE CHANCERY.
TO BE DAILY OBSERVED
VING THE PREROGATIVE OF THE COURT.
No decree shall be reversed, altered, or explained, being once Decrees. under the great seal, but upon bill of review : and no bill of review shall be admitted, except it contain either error in law, appearing in the body of the decree without farther examination of matters in fact, or some new matter which hath risen in time after the decree, and not any new proof which might have been used when the decree was made : nevertheless upon new proof, that is come to light after the decree made, and could not possibly have been used at the time when the decree passed, a bill of review may be grounded by the special license of the court, and not otherwise.
2. In case of miscasting, being a matter demonstrative, a decree may be explained and reconciled by an order, without a bill of review; not understanding, by miscasting, any pretended misrating or misvaluing, but only error in the auditing or numbering.
3. No bill of review shall be admitted, or any other new bill to change matter decreel, except the decree be first obeyed and performed: as, if it be for land, that the possession be yielded; if it be for money, that the money be paid ; if it be for evidences, that the evidences be brought in; and so in other cases which stand upon the strength of the decree alone.
4. But if any act be decreed to be done which extinguisheth
I In some it is only."
the parties' right at the common law, as making of assurance, or release, acknowledging satisfaction, cancelling of bonds or evidences, and the like; those parts of the decree are to be spared until the bill of review be determined; but such sparing is to be warranted by public order made in court.
5. No bill of review shall be put in, except the party that prefers it enter into recognisance with sureties for satisfying of costs and damages for the delay, if it be found against him.
6. No decrees shall be made, upon pretence of equity, against the express provision of an act of parliament: nevertheless if the construction of such act of parliament hath for a time gone one way in general opinion and reputation, and after by a later judgment hath been controlled, then relief may be given upon matter of equity for cases arising before the said judgment; because the subject was in no default.
7. Imprisonment for breach of a decree is in nature of an execution; and therefore the custody ought to be strait, and the party not to have any liberty to go abroad, but by special licence of the lord chancellor ; but no close imprisonment is to be, but by express order for wilful and extraordinary contempts and disobedience, as hath been used. - 8. In case of enormous and obstinate disobedience in breach of a decree, an injunction is to be granted sub pæna of a sum; and upon affidavit, or other sufficient proof of persisting in contempt, fines are to be pronounced by the lord chancellor in open court, and the same to be estreated down into the hanaper, if cause be, by a special order.
9. In case of a decree made for the possession of land, a writ of execution goes forth; and if that be disobeyed, then process of contempt according to the course of the court against the person, unto a commission of rebellion: and then a serjeant at arms by special warrant: and in case the serjeant at arms cannot find him, or be resisted, or upon the coming in of the party, and his commitment, if he persist in disobedience, an injunction is to be granted for the possession; and in case also that be disobeyed, then a commission to the sheriff' to put him into possession.
10. When the party is committed for the breach of a decree, he is not to be enlarged until the decree be fully performed, in all things which are to be clone presently. But if there be other parts of the decree to be performed at days or times to come, then he may be enlarged by order of the court upon recognisance, with sureties to be put in for the performance thereof de futuro; otherwise not.
11. Where causes come to a hearing in court, no decree bindeth any person who was not served with process ad audiendum judicium, according to the course of the court, or did appear gratis in person in court.
12. No decree bindeth any that cometh in bona fide by conveyance from the defendant before the bill exhibited, and is made no party, neither by bill nor the order: but where he comes in pendente lite, and while the suit is in full prosecution, and without any colour of allowance or privity of the court, there regularly the decree bindeth; but if there were any intermission of suit, or the court made acquainted with the conveyance, the court is to give order upon the special matter according to justice.
13. Where causes are dismissed upon full hearing, and the Dismissions. dismission signed by the lord chancellor, such causes shall not be retained again, nor new bill exhibited, except it be upon new matter, like to the case of the bill of review.
14. In case of all other dismissions, which are not upon hearing of the cause, if any new bill be brought, the dismission is to be pleaded; and after reference and report of the contents of both suits, and consideration taken of the former orders and dismission, the court shall rule the retaining or dismissing of the new bill, according to justice and the nature of the casc.
15. All suits grounded upon wills nuncupative, leases parol, or upon long leases that tend to the defeating of the king's tenures; or for the establishing of perpetuitics; or grounded upon remainders put into the crown, to defeat purchasers; or for brokage or rewards to make marriages; or for bargains at play and wagers; or for bargains for offices contrary to the statute of 5 and 6 Ed. VI.; or for contracts upon usury or simony, are regularly to be dismissed upon motion, if they be the sole effect of the bill, and if there be no special circumstances to move the court to allow their proceedings : and all suits under the value of ten pounds are regularly to be dismissed. V. postea $ 60.
16. Dismissions are properly to be prayed, and had, either
upon hearing, or upon plea unto the bill, when the cause comes first into court; but dismissions are not to be prayed after the parties have been at charge of examination, except it be upon special cause.
17. If the plaintiff discontinue the prosecution, after all the defendants have answered, above the space of one whole term, the cause is to be dismissed of course without any motion; but after replication put in, no cause is to be dismissed without motion and order of the court.
Election of suits.
18. Double vexation is not to be admitted; but if the party sue for the same cause at the common law and in chancery, he is to have a day given to make his election where he will proceed, and in default of making such election to be dismissed.
19. Where causes are removed by special certiorari upon a bill containing matter of equity, the plaintiff is, upon receipt of his writ, to put in bond to prove his suggestions within fourtcen days after the receipt; which if he do not prove, then upon certificate from either of the examiners, presented to the lord chancellor, the cause shall be be dismissed with costs, and a procedendo to be granted.
20. No injunction of any nature shall be granted, revived, dissolved, or stayed upon any private petition.
21. No injunction to stay suits at the common law shall be granted upon priority of suit only, or upon surmise of the plaintiff's bill only; but upon matter confessed in the defendant's answer, or matter of record, or writing plainly appearing, or when the defendant is in contempt for not answering, or that the debt desired to be stayed appeareth to be old, and hath slept long, or the creditor or the debtor hath been di ad some good time before the suit brought.
22. Where the defendant appears not, but sits an attachment; or when he doth appear, and departs without answer, and is under attachment for not answering; or when he takes oath that he cannot answer without sight of evidences in the country; or where after answer he sues at common law by attorney, and absents himself beyond sea; in these cases an injunction is to be granted for the stay oí all suits at the common law, until the party answer or spear in person in court and the court