wyfe, whech Johan & Johan after azenst my will & wetynge pot my land to ferme, and delyvered my mevable good the valewe of xx marke where hem leste; & thus they kepe my dede & the dentre wt my mevable good unto myne undoynge; also whech am undo for brusinge in service of our liege lorde, & in service of yt worthy Princesse my lady of Clarence & ever wolde yef my lemys might serve worthy prince sone. At reverence of God, and of that pereless Princes his moder, take this matre at hert of alms and charitie. MARGARET APPILGARTH V. THOMAS SERGEANTSON. Temp. Henry VI. (1439). Calendars of Proceedings in Chancery, I, xli. (This is the plaintiff's bill.)

To the right reverent Fadre in God, the Bisshop of Bathe, Chaunceller of England.

Besecheth mekely Margaret Appilgarth of York wydewe, that where Thomas Sergeantson of the same, at divers times spak to yor saide besecher ful sadly and hertly in hir conceit, and sought upon hir to have hir to wyfe, desiring to have of hir certain golde to the some of xxxvj li. for costes to bee made of their mariage, & to emploie in marchandise to his encrese & profit as to hir husbande. Whereuppon she havyng ful byleve & trust in his trouthe & langage, nor desiring of him eeny contract of matrymoyne, delivered him the saide some at diverse tymes; aftre the which liveree furthwith he nat willing to relivere the saide some to yor saide bisechere hathe take to wyfe an othre woman, in grete deceit, hurt, & uttre undooyng of hir, without yor gracieux help & socor in this partie. Please it to yor good grace to considre the premisses, and that yor saide bisechere no remedy hath by the comone lawe to get ageine the saide some; & ther upon to graunte a writ ageins the said Thomas to appere afore you at a certaine day upon a certaine peyne by you to bee lymit, to bee examined upon the premisses; & ther upon make him to doo as good feith & consciens wol in this partie. And she shall pray God for you.

ANONYMOUS CASE, COURT OF COMMON PLEAS (1465). Y. B. 4 E. IV., 8, 9. (Digby's translation.)

(Action of trespass quare clausum fregit. The defendant pleaded that plaintiff held the land to his use. Plaintiff demurred.) Wherefore should the de

Catesby (counsel for defendant). fendant not avail himself of this matter, when it follows by reason that the defendant enfeoffed the plaintiff to the use of the defendant, and so that the plaintiff is only in the land to the use of the defendant

and the defendant made the feoffment to the plaintiff in trust and confidence? And the plaintiff suffered the defendant to occupy the land, so that by reason that the defendant occupied the land at his will, this proves that the defendant shall have the advantage of this feoffment in trust, in order to justify his occupation of the land by this cause, &c.

Moile (J). This is a good ground of defence in Chancery, for the defendant there shall aver the intent and purpose upon such a feoffment, for in the Chancery a man shall have remedy according to conscience upon the intent of such a feoffment, but here by the course of the common law in the Common Pleas or King's Bench it is otherwise, for the feoffee shall have the land; and the feoffor shall not justify contrary to his own feoffment, that the said feoff ment was made in confidence, or the contrary.

Catesby. The law of Chancery is the common law of the land, and there the defendant shall have advantage of this matter and feoffment; wherefore then shall he not have it in the same manner here?

Moile (J.) That cannot be so here in this court, as I have already said, for the common law of the land is different from the law of Chancery on this point.

Extracts from A REPLICATION OF A SERJAUNTE AT THE LAWES OF ENGLAND TO CERTAINE POINTES ALLEAGED BY A STUDENT OF THE SAID LAWES OF ENGLAND. Written temp. Henry VIII. in answer to certain points in the contemporary treatise called Doctor and Student. (Hargrave's Law Tracts, 323.)

[In Doctor and Student the student had explained that where a bond had been given and paid, but no release had been taken, though the bond was enforceable at law, the obligor might prevent suit upon it and obtain cancellation by a subpoena in chancery. To this the sergeant takes exception.]

I mervaile moche what authorite the chancellor hath to make such a writ in the Kinge's name, and howe he dare presume to make soche a writ to let the Kinge's subjects to sue his lawes, the which the kinge himselfe cannot do rightewiselye; for he is sworne the contrarie, and it is saide hoc possumus quod de jure possumus. Also the king's judges of this realme, that bee appointed to minyster his lawes of his realme be sworne to minister his lawes of the realme indifferentlye to the kinge's subjects; and so is not the chancellor. Also the serjaunts at the lawe be sworne to see the king's subjects

For the lawe

to be justifyed by the lawes of this realme determinable by the king's judges and not by my lord chancellor. Yet this notwithstand-. inge, if the kinge's subjects, upon a surmised bill put into the chauncerie, shal be prohibited by a subpoena to sue accordinge to the lawes of the realme, and be compelled to make aunsweare before my lord chauncellor, than shall the lawe of the realme be set as voyde and taken as a thing of none effecte, and the king's subjects shall be ordered by the discretion of the chauncellor and by no lawe, contrarie to all good reason and all good policy. And so me seemeth, that such a sute by a subpoena is not onlye against the law of the realme, but also against the lawe of reason. Also me seemeth, that it is not confoarmable to the lawe of God. of God is not contrary in itself, that is to say, one in one place, and contrary in another place, if it be well perceyved and understood, as ye can tell, Mr. Doctour; but this lawe is one in one courte contrarie in another court. And so me seemeth, that it is not onlie againste the lawe of reason, but also against the lawe of God. Also me seemeth, that this suite by a subpoena is againste the common well of the realme. For the common well of everie realme is to have a good lawe, so that the subjects of the realme maie be justified by the same, and the more plaine and open that the lawe is, and the more knowledge and understanding that the subject hath of the lawe, the better it is for the common well of the realme; and the more uncertaine that the lawe is in any realme, the lesse and the worse it is for the common well of the realme. But if the subjects of any realme shall be compelled to leave the lawe of the realme, and to be ordered by the discretion of one man, what thinge may be more unknowen or more uncertaine? But if this manner of suite by a subpoena be maintayned, as you Mr. Student wold have it, in what uncertaintie shall the king's subjects stande, whan they shall be put from the lawe of the realme, and be compelled to be ordered by the discretion and conscience of one man! And namelie for as moch as conscience is a thinge of great uncertaintie; for some men thinke that if they treade upon two strawes that lye acrosse, that they ofende in conscience, and some man thinketh that if he lake money, and another hath too moche, that he may take part of his with conscience; and so divers men divers conscience; for everie man knoweth not what conscience is so well as you Mr. Doctour. Student. Howe is it than, that the chancellours of England have used this?

Serjaunte. Verelie I thincke for lacke of knowledge of the goodness of the lawes of the realme; for moste commonly the chancelours of England have been spiritual men, that have had but superficial knowledge in the lawes of the realme; and whan soch a byll hath been made unto them, that soche a man should have greate wronge to be compelled to paie two times for one thinge, the chancellour, not knowinge the goodness of the common lawe, neyther the inconvenience that mighte ensue by the saide writ of subpoena, hath temerouslye directed a subpoena to the plaintiff in the kinge's name, commandinge him to cease his suite that he hath before the king's justices, and to make aunsweare before him in the chauncerie: and he regardinge no lawe, but trustinge to his owne wit and wisdom, giveth judgment as it pleaseth himselfe, and thinketh, that his judgment being in soche authoritie is farre better and more reasonable than judgments that be given by the king's justices according to the common lawe of the realme. In my conceite in this case I may liken my lord chaunceler, which is not learned in the lawes of the realme, to him, that stands in the Vale of White-horse farre from the horse and holdeth the horse; and the horse seemeth and appeereth to him a goodly horse and well proportioned in every poinct, and that if he come neere to the place wher the horse is he can perceave no horse nor proportion of any horse. Even so it fareth by my lord chauncelor that is not learned in the lawes of the realme; for whan such a bill is put unto him, it appeereth to him to be a matter of great conscience and requireth reformation; and the matter in the bill appeereth so to him, because he is farre from the understandinge and the knowledge of the lawe of the realme and the goodness thereof; but if he draw neere to the knowledge and understandinge of the common law of the realme, so that he maie come to the pecfecte knowledge and goodnes of it, he shall well perceive that the matter contayned in the bill put to him in the chauncerie is no matter to be refourmed there, and namelie in soche wise as is used. Moreover, Mr. Student, I marvaile moche, that ye say that men that have wronge maye be holpen in many cases by a subpoena, in so moche as you have in your Natura Brevium sevrall writts and divers natures for the reformation of everie wronge that is donne and committed contrarye to the lawes of the realme; and amonge all your writs that you have in your Natura Brevium, ye have none there called subpoena, neyther yet the nature of him declared there, as ye have of all the writs specified in the saide booke. Wherefore

me seemeth it standeth not with your studie, neither yet with your learninge of the lawes of the realme, that any man that is wronged should have his remedie by a subpoena. If a subpoena had been a writ ordained by the lawe of the realme to reforme a wronge, as other writs in the saide booke be, he shold have bin set in the booke of Natura Brevium, and the nature of him declared there, and for the reformation of what wronge it layeth, as it is in the writs contayned in the saide booke; and for as moche as it is not so, it is a writ abused in my mynde contrarie to the common lawe of the realme, and contrary to reason, and all good conscience, and yet is coloured by the pretence of conscience.

Extracts from COKE'S FOURTH INSTITUTE.

In the parliament holden 13 R. 2 (1390) the commons petitioned to the king that neither the chancellor nor other counsellor doe make any order against the common law, nor that any judgment be given without due processe of law. Whereunto the king's answer was, The usages heretofore shall stand, so as the king's royalty be saved.

In the parliament holden in 17 R. 2 (1394), it is enacted at petition of the commons, that forasmuch as people were compelled to come before the king's council, or in chancery, by writs grounded. upon untrue suggestions, that the chancelor for the time being presently after that such suggestions be duly found and proved untrue, shall have power to ordain and award damages according to his discretion to him who is so travelled unduly as is aforesaid.

[Lord Coke now quotes or cites three similar petitions of the commons in the reigns of Henry IV. and Henry V., and proceeds:]

The commons petitioned that no writs or privy seals be sued out of the chancery, exchequer, or other places to any man to appear at a day upon a pain, either before the king and his councell, or in any other place, contrary to the ordinary course of the common law; whereunto the king answered that such writs should not be granted without necessity.

Amongst the petitions of the commons you shall find this, That all writs of subpoena and certis de causis, going out of the chancery and the exchequer may be enrolled, and not granted of matters. determinable at the common law, on pain the plaintiff doe pay by