borough v a b a commission by consent to prove the receipt of rend fine and  wood sale the suit be for certain rend fine and wood sale receive by the  defendant testator during the plaintiffs minority it appear that if the  plaintiff have make good proof he be to be relieve therefore a commission be  award by consent borough plaintiff a b defendant year Elizabeth caryi er p  caryi the king order and decree in chancery for a rule TO be observe by the  chancellor in that court exemplify and enrol for a perpetual record there year  James by the grace of God c whereas our right trusty and wellbeloved sir  Francis Bacon knight our counsellor and attorneygeneral receive a letter from  our chancellor of England date the that of march a dom write by our express  commandment direct he and require he and the rest of our learned counsel to  peruse such precedent as shall be produce unto they from time of king Henry  the seven and since of complaint make in the chancery there to be relieve  accord to equity and conscience after judgement in the court of the commonlaws  in case wherein the judge of the commonlaw can not relieve they and thereupon  to certify we of the truth of that they shall find and of their opinion  concern the caryi same which letter follow in these word master attorney his  majesty be inform that there be many precedent in the court of chancery in the  time of king Henry and continual since that such as complain there to be  relieve accord to equity and conscience after judgement in the court of the  commonlaw in case where the judge of the commonlaw can not relieve they be  bind by their oath to observe the strict rule of the law be Willing to  understand whether there be such precedent as he be inform of and therefore  have command I to let you know that his will and pleasure be that you call to  assist you his majesty sergeant and solicitor and to peruse such precedent of  this kind as shall be produce unto you and thereupon to certify his majesty of  the truth of that you shall find and of your opinion concern the same and foe  your better direction therein I have send you here enclose a note in write  deliver unto I mention some such precedent in king Henry the seven time and  since and I be tell caryi that there be the like in former time his majesty  expect your proceed in this with as much speed as convenient you may and so I  rest Your very assure love friend t Ellesmere canc at York house that of Mars  and whereas our attorneygeneral and the rest of our learned counsel do  thereupon return unto we their certificate subscribe with all their hand  accord to our commandment and direction give they by the say letter which  certificate follow in these word accord to your majesty commandment we have  advice consider of the note deliver unto we of precedent of complain and  proceed in chancery after judgement in commonlaw and also have see and peruse  the original out of which the same note be abstract upon all which we do find  and observe the point follow we find that the same note be full verify and  maintain by the original caryi caryi we find that there have be a strong  current of practice of proceed in chancery after judgement and many time after  execution continue from the beginning of Henry the seven reign unto the time  of the Lord chancellor that now be both in the reign separatin of the several  king and in the time of the several chancellor whereof diverse be great  learned man in the law it be in case where there be no remedy for the subject  by the strict course of the commonlaw unto which the judge be swear we find  that these proceed in chancery have be after judgement in action of several  nature as well real as personal we find it have be after judgement in your  majesty several court the king bench common plea justice in oyer c we find it  have be after judgement obtain upon verdict demurrer and where writ of error  have be bring we find in many of the case that the judgement be express  mention in the bill in the chancery themselves caryi to have be give and  relief pray thereupon sometime for stay of execution sometime after execution  of which kind we find a great number in king Henry the seven time caryi er p  we find the matter in equity lie in such bill in most of the case to have be  matter precedent before the judgement and not matter of agreement after we  find in the say case not only the bill prefer but motion order injunction and  decree thereupon for the discharge and release of the judgement or abide the  possession thereupon obtain and sometime for the mean profit and the release  of the cost c we find in some of the case in this very point that judgement  have be give have be stand upon by the defendant and allege by they by way of  demurrer and overrule we find that the judge themselves in their own court  when there appear unto they matter of equity because they by their oath and  office can not stay the judgement except it be for some small time have direct  the party caryi to seek relief in chancery we find that this have not only be  in the time of the several chancellor but by the judge themselves and that  without difficulty when they sit in chancery in the vacancy or absence of the  chancellor we find the hand of sundry principal counsellor at law whereof  diverse of they be now judge and some in chief place in bill of this kind last  here be offer to have be show unto we many other precedent whereof we hear  some read and find they to be of like nature with those contain in the note  Francis bacon randell crew henry Montague henry Yelverton and whereas also our  say attorney receive one other letter from our say chancellor with a case  there enclose write likewise by our express commandment date the that of march  direct and require he and the rest of our learned counsel together with the  attorney of our dear son the prince to confer together upon the say cause and  to consider advice of all the part thereof and thereupon to peruse caryi all  the statute of praemunire or proviso and all other statute as they shall  conceive to be necessary to be consider of for the resolve the question  propound in that case and thereupon to report unto we their opinion in write  concern the same which letter and case there enclose follow in these word  concern master attorney his majesty have peruse this case enclose and have  command I to send it to you and his will and pleasure be that you call unto  you Mr sergeant Montague Mr sergeant crew Mr solicitor and Mr Walter the  prince attorney and that you confer together thereupon and consider advice and  deliberate of all the part thereof and thereupon to peruse all the statute of  praemunire or proviso and all other such statute as you shall conceive to be  necessary to be consider of for the resolve the question propound in this case  this his majesty will have be do with mature deliberation and yet with as much  speed as convenient you can and when you have sufficient inform caryi  yourselves therein then to report to he your opinion in write and so I commit  you to God and rest Your very love friend t Ellesmere canc at York house the  that of march a have judgement and execution in the king bench or common plea  against b in a action of debt of one thousand pound and in a ejection strong  of the manor of d b complain in the chancery to be relieve against those  judgement accord to conscience and equity allow the judgement to be lawful and  good by the rigour and strict rule of the commonlaws and the matter in  conscience and equity such as the judge of the commonlaw be no judge in equity  but bind by heir oath to do the law can give any remedy or relief for the same  either by error or attaint or by any other mean question whether the chancery  may relieve b in this or such like case or else leave he utter remediless and  undo and if the chancery be restrain by any statute of praemunire caryi c then  by what statute or by what word in any statute be the chancery so restrain and  conscience and equity banish exclude and damned caryi er p and whereas accord  to our say commandment our say learned counsel and the attorney of our dear  son the prince return unto we a certificate of their opinion upon the say  statute under all their several hand concern the same case which certificate  follow in these word accord to your majesty commandment we have deliberate  advice of the case send unto we by the Lord chancellor and of the statute as  well those of praemunire as other as far as we take it may concern the case  and for our better information therein we have think fit to send for and  peruse the original record themselves remain in the tower of London of those  statute not only appear upon the roll of parliament with the king answer which  be the warrant to the roll of parliament we have also take into consideration  as well book law as diverse other act of parliament which may give light caryi  unto the statute whereupon the question proper grow together with such ancient  record and precedent as we can find as well those which maintain the authority  of the chancery as those which seem to impeach the same and upon the whole  matter we be all of opinion that the chancery may give relief to the case in  question and that no statute of praemunire c or other statute restrains the  same and because we know not what use your majesty will be please to make of  this our opinion either for the time present or future we be Willing to give  some reason of the same not think fit to trouble your majesty with all those  thing whereupon we have ground ourselves select out some principal thing which  move we to be of this opinion to the end this same may be a full object of  your majesty princely judgement whereunto we always submit ourselves and first  we must lie for a sure foundation that which be contain in our former  certificate concern the continual practice by the space now of six score year  in the time of king caryi Henry the that king Henry the that king Edward the  that queen mary and queen Elizabeth of this authority and that in the time  when the same authority be manage not only by the bishop which may be think  less skilful or less affectionate towards the law of the land but also diverse  great lawyer which can not but know and honour the law as the mean of their  advancement sir Thomas more and the Lord Audli the Lord rich sir Nicholas  Bacon sir Thomas Bromley and sir John puckering and further that most of the  late judge of the kingdom either as judge when they sit in chancery by  commission or as counsellor at law when they set their hand to bill have by  their judgement and counsel uphold the same authority and therefore for as  much as it be a true ground that good law interpreter custom especial when the  practice or custom passes not among vulgar person but among the most high and  scient magistrate of the kingdom and when also the practice of the same shall  lie under so heavy a pain as the praemunire this be to we a principal and  implicit satisfaction caryi and those statute ought not to be construe to  extend to this case and this of itself we know be of far more force to move  your majesty than any opinion of we because king be fit to inform king and  chancellor to teach chancellor and judge to teach judge but further out of our  own science and profession we have think fit to add these further reason and  proof very brief because in case of so ancient a possession of jurisdiction we  hold it not fit to amplify the statute upon which the question grow be  principal two whereof one be a statute of praemunire and the other be a  statute of simple prohibition that of praemunire be the statute of Edward c  and the statute of simple prohibition be the statute of Henry c there be  diverse other statute of both kind but the question will rest principal upon  those two as we conceive it the entrance in seldom discourse fol b for the  statute of Edward it can in our opinion extend unto the chancery for these  reason first out of the mischief which the statute provide and recite  videlicet caryi that such suit and plead against which the statute be provide  be in prejudice and disinherison of the king and his crown which can be apply  to the chancery for the king can be disinherit of jurisdiction but either b a  foreigner or by his subject but never by his own court out of the remedy which  the statute point videlicet that the offender shall be warn within two month  to be before the king and his counsel or in his chancery or before the king  justice of the one bench or of the other c by caryi er p which word it be  opposite in itself that the chancery shall give both the offence and the  remedy out of the penalty which be not only severe but hasty namely that the  offender shall be put out of the king protection which penalty altogether  savour of adhere to foreign jurisdiction and will never have be inflict upon a  excess only of jurisdiction in any of the king court as the court of chancery  be out of the statute precedent and subsequent e c and r c which be of the  same nature caryi and can be apply but to foreign court for the word alibi or  elsewhere be never use but where Rome be name special before the disjunctive  in this statute which only give the colour videlicet that they which draw any  out of the realm in plea whereof the cognizance pertain to the king court or  of thing whereof judgement be give in the king court or which do sue in any  other court to defeat or impeach the judgement give in the king court this  last disjunction we say which must go further than court out of the realm  which be full provide for by the former branch have sufficient matter and  effect to work upon in respect of such court which though they be total within  the realm yet in jurisdiction be subordinate to the foreigner such as be the  legate court the delegate court and in general all the ecclesiastical court  within the realm at that time as it be express construe in the judge Edward  fol in this the sight of the record of the petition do clear the doubt caryi  where the subject supplicate to the king to ordain remedy against those which  pursue in other court than his own against judgement give in his court which  explain the word other to be other than the king court with this agree notable  the book of entry which translate the word in other court not in alian curian  but in another curian this statute of fivepercent tax seven Edward be in  corroboration of the commonlaw as itself recite we do not find in the register  any precedent of the writ of ad jura regius which be frame upon chief case  that be afterward make penal by the praemunire but only against the  ecclesiastical court last we have not find any precedent at all of any  conviction upon the statute of praemunire of this nature for suit in chancery  but only two or three bill of indictment prefer send nothing ind go for sale  for aught appear to we for the statute of Henry that we doubt be make against  proceed within the realm and not against foreign and therefore have no penalty  annex nevertheless we conceive that it extend caryi not to the chancery in the  case deliver for these reason first this statute recite where the party be  make to come upon grievous pain sometime before the king himself sometime  before the king counsel and sometime in the parliament to answer thereof anew  c where it appear that the chancery be not name which can not have be forget  but be leave out upon great reason because the chancery be a court of ordinary  justice for matter of equity and the statute mean only to restrain  extraordinary commission and such like proceed this appear full by view and  compare the two petition which be make the same parliament of Henry place  immediate the one before the other the first which be reject by the king and  the second whereupon this statute be make whereof the first be to restrain the  ordinary proceed of justice that be to say in the chancery by name in the  exchequer and before the king counsel by process of privy seal unto which the  king make a royal and prudent answer in caryi these word the king will charge  his officer to be more spare to send for his subject by such process than  heretofore they have be but notwithstanding it be not his mind that the  officer shall so far obtain but that they may call his subject before they in  matter and cause necessary as it have be do in the time of his good progenitor  and then immediate follow the petition whereupon the act now in question be  make unto which the king give his assent and wherein no mention be make at all  of the chancery or exchequer if the chancery shall be understand to be within  the statute yet the statute extend not to this case for the word be that the  king subject be drive to answer thereof anew which must be understand when the  same matter former judge be put in issue or question again but when the cause  be call into the chancery only upon point of equity there as the point of  equity be never in question in the caryi er p commonlaw court so the point of  law or fact as it concern the law be never in question in the chancery so  caryi the same thing be not twice in question or be answer anew for the  chancery do supply the law and not cross it it appear to our understanding by  the cause of error and attaint in the same statute what jurisdiction it be  that the statute mean to restrain videlicet such jurisdiction as do assume to  reverse and undo the judgement as error or attaint do which the chancery never  do but leaves the judgement in peace and only meddle with the corrupt  conscience of the party for if the chancery shall assume to reverse the  judgement in the point adjudge it be void as appear Edward fol we find no  precedent of any proceed to conviction or judgement upon any indictment frame  or round upon this statute no more than upon the statute of praemunire and the  late indictment be contra to visit to cause to stand not mention the  particular statute last it be a great mischief to force the subject in all  case to seek remedy in equity before he know whether the law will help he or  no which caryi often time he can do till after judgement and therefore he be  to seek his salve proper when he have his hurt there be diverse other thing of  weight which we have see and consider of whereupon we have ground our opinion  but we go no further upon that we have see but because matter of precedent be  great considerable in this case and that we have be attend by the clerk of the  chancery with the precedent of that court and have not be yet attend by any  officer of the king bench with any precedent of judgement if it shall please  your majesty a faithful report of they we have do of the other all which c  Francis bacon randall crew John walter henry Montague henry Yelverton now  forasmuch as mercy and justice be the true support of our royal throne and  that it proper belong to we in our princely office to take care and provide  that our subject have equal and indifferent justice minister caryi to they and  that where their case deserve to be relieve in course of equity by suit in our  court of chancery they shall not be abandon and expose to perish under the  rigour and extremity of our law we in our princely judgement have well weigh  and with mature deliberation consider of the say several report of our learned  counsel and of all the part of they do approve ratify and confirm as well the  practice of our court of chancery express in the first certificate as their  opinion for the law upon the statute mention in their latter certificate the  same have relation to the case send they by our say chancellor and do will and  command that our chancellor or keeper of the great seal for the time be shall  not hereafter desist unto our subject upon their several complaint now or  hereafter to be make such relief in equity notwithstanding any former proceed  at the commonlaw against they as shall stand with true merit and justice of  their case and with the former ancient and continue practice and proceed of  our chancery and for that it appertain caryi to our princely care and office  only to judge over all our judge and to discern and determine such difference  as at a time may or shall arise between our several court touch the  jurisdiction and the same to settle and decide as we in our princely wisdom  shall find to stand most with our honour and the example of our royal  progenitor in the best time and the general weal and good of our people for  which we be to answer unto God who have place we over they our will and  pleasure be that our whole proceed herein by the decree former set down be  enrol in our court of chancery there to remain of record for the better  extinguish of the like question or difference that may arise in future time  per Self king Francis bacon henry Yelverton Decimus octavo Julii year r king c  choice case in chancery er p choice case in chancery report choice case in  chancery