Earl of Oxfords Case

equity an trust
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  ~agd~len ollege;e, 9 H. 8, seised in Fee of the o Chr~st's Church, and the Covent Garden, without AIdgate, London, eont seven Acres, demised them for sevent~-two ears, rendr~ng 40 per Ann. for the ~ctor~, nd 9 for the Garden. And 17 Elk. (fifty Yeam of the said Lease being expired) the Queen at the Suit of the said Gollege licensed them to alien, which they did, and then received for the ~ctory 525 per Ann. and 15 €or the Garden. It being her ~ajesty~s ntent, That the College should be advan~ed ~at~y n Profit, by having the Rectory to them and their Suc~sso~ 23 discharged of the Lease for Years, w5ch in Present was worth to them but 50 per Ann. the utmost Rent ; he same N~S ccord~ng~y rformed by a an- veyance to her ~ajest~, nd from her ~ajesty o Spinola, ant he Rectory, from Spinola to the Goliege, after vhich Spinola and the Earl of Oxford his Assignee, and his ~nder-~~ants, ave built upon the ~ard~n 30 Houses, and themin ~to~~e510,~00, hich Assi~ee nd his ~nder-te~an~ ave Bonds and ~eu~t~ iven €or the ~ajoyment hereof, to the Sum of ~20,000. Note ; The Co~ege s hereby advanced 1700 more than they shodd have been, if the former Lease had conti This Conveyance having Furc~ase~ rom a Thing of li a ge~era~ ase wherein Peps resting secure on its Pa~sing hro' The resent ~aste~ f the Col1 Title both in Law and ~q~ity, 31 seded a Leaease thereof for three Years to one ~arxen, who thereupon brought an ~jec~ment gainst one John Smith, for Trial of the Title in R. R. whexein a Special Yer&ct w~bs had ; nd while that de~~ded n Arg~i~ethe Lease ended, and so no Possession could be a~arded or the ~lain~~, or Fruit had of his Suit. Yet hc pro~ed~ o have the ~pin~on f the Judges to know the Law (which N&S a ~o~untary ct of his), 0 the Intent, if the Law were with him, he ~ig~t egin a new Suit at Law, and spare to ; nd if the Law were against him, that then he might proceed in the Judges of that Gourt having de- Iivered their ~pi~ons ga~~t fore any J~dg~ent ntred upon the lf, the Earl and Mr. ~~od, or nd their Lessees, preferr~d heir Bill ia ~h~n~ry nd then ~~dgment m entred, Q~d ~~~w il~~~~~ er ~~~~~~ the ~on~e~ance o be void by the ~tat~te f 13 Eliz. and that they evi Parcel of the re misses by Judg~ent t Law ; which Plea and ~~~~rreere ~e€e~~ by Order to Sir John Tidal and bfr, ~ool~dge, ho re~~d, 41 That they tho~ght it fit the Cause should proceed to Wearing, ~ot~thstand~ng he Plea and Demurrer and ~terwards n ~efa~lt f an A~wex, n Attach~ent as awarded a~nst he defend an^, where~pon hey were attsch'd, and a Cq Cmp return'd, and by Order of the 22d of Ootob. 13 Jac. 1 116151, they were committed to the Reet for their ~onte~~~ n re€using to ans-lver; and do now stand bound over to answer their ~~ntemp~, hey still refusing to answer: of one o he 130 Housm, whereof To which Bill in ~~ia~~r~ he Defenda~t ut in a Plea and Denm ulfi  486 THE EARL OF OXFORD’S CASE I CHAN. REP. 5. And now this Term it was argued, That the Defendants thus stand in^ in Contempt, 1. The Law of God speaks for the Plaintiff. Deut. 28. 2. And Equity and good Consci~nce peak wholly for him. 3. Nor does the Law of the Land speak against him. But that and Eq~ity ught to join Hand in Band, in moderating and restraining all Extremities and Hardships. By the Law of God, He that, builds a House ought to dwell in it; and he that plants a Vineyard ought to gather the Grqes thereof nd it w s a Cmse upon the Wicked, that they should build Houses and not dwell in them, and plant Vineyards and not gather the Grapes thereof. Deut. 28. v. 30. [fj] And yet here in this Gase, such is the Conscience of the Doctor, the Defendant, That he would have the Houses, Gardens and Orchards, which he neither built nor planted : But the Chance~o~ ave always corrected such corrupt Consciences, and caused them to render quid pro guo or the Common Law it self will admit no Con- tra& to be good without paid pro quo, or Land to pass without a valuable Consideration, and therefore Equity must see that a pro~rt~onable a~~~action fx As in the Case of Peterson vers. Bickmanj the Husband made a Lease of the Wife’s Land, and the Lessee being ignorant of the defe~ible itle built upon the Land, and was at great Charge therein he ~~~nd ied, and the M7ife avoided the Lease at Law, but was compelled in Equity to yield a Recornpence for the Building and Better- ing of the Land. For it was so much the more worth unto her : And wheresoe~er one hath a Benefit, the Law will compel him to give a Recompence, as if Cestui que use sell the Land to one that hath no Notice of the Use, and dieth ; by Reason that he had the Benefit of the Sale, his Executors were ordered to answer the Value of the Land out of his &&ate, as ap~ea~t~ y a Judgm~~t-~ol~ f 34 H. 6. 161 And (his Lordship) the Plaintiff in this Case only desires to be satisfied of the true Value of the new 3u~~ding nd P~anti~g ince the Conve~~nce, nd ~nvenient A~~o~an~ or the Purchase. And Equity speaks as the Law of God speaks. But you would silence Equity. 1st. 3e~~e ou have a Judgment at Law. 2dly. Because that Judgment is upon ;t Statute-Law. To which I answer, Arst, As a Right in Law cannot die, no more can Equity in Chancery die, and therefore nullus receda-at a C~~~1~a-r~~ w r~~~~o E. 4, 11. a. Therefore the ~~~ancery s aIway~ pen, and a~~hough he Tsrrn be ~jour~ed he Chancery is DO ; for Conscience and Equity is always ready to render to every one their Due, and 9 E. 4, 11, a. The Chancery is only removable at the Will of the King and Chancellor; and by 2’7 E. 3 15. The Chancellor must give Account to none but only to the King and ~~rlia~ent. The Cause why there is a Chancery is, for that & ens Actions are so divers and jn~n~te, hat it is impossibl~ to make any general Law which may aptly meet with every particular Act, and not fail in some Circ~s~n~~. The 0%~ f the Chancellor is to correct E73 Mens Consciences for Frauds, Breach of Trusts, ~rongs nd Oppre~ions, f what Nature soever they b nd to soften and mollify the Extremity of the Law, which is called ~~~r ~ w. And for the Judgment, &c,, Law and Equity are distinct, both in their Courts, their Judges, and the Rules of Justice ; and yet they both aim at one and the same End, which is, to do Right ; as Justice and XeJrcy differ in their EEects and Opera- tions, yet both join in the ~an~estat~on f God’s Glory. But in this Case, upon the Matter there is no Judgment, but only a ~~eonti~uance of the Suit, which gives no Possession; and altho’ to prosecute Law and Equity to- gether be a Veration; yet voluntarily to attempt the Law in a doubtful Case, and after to resort to Equity, is neither strange nor unr~~onable. But take it M a Judgment to all Intents hen answer, That in this Case there is no Opp~~tion o the Judg~ent e~t~er ill the Truth ox Justice of the Judgment be examined in this Court, nor any ~~cumstance epend- ing thereupon; but the same is justified and approv’d; and therefore a Judgment JS ao Let to exam~ne t in Equity, so a8 all the Truth of the J~d~~~ c., be not^ examin’d. [a] No Possession is esta~~is~~ y the King’s Writ after that any J~ is sought to be i~~pe~h~; or when the P~~~nt~ff y his Lessee seek~ng Relief at the &c., may be sequ~tred ntil Answer.  1 C€tAX. l q. TRE EARL OF OXPORD’EJ CASE 4817 Common Law is barred, then is his Time to seek Relief in Chancery, when the inst him, Doctor and Stu~ent, ol. 16. A Serjeant is sworn to to L&w. tbat is, according to the Law of God, the Law of the Land; and upon both the Laws of God and Reason, IS ground^ t t Rule, via To do as one woutd be done unto. And therefore where one is bound in an Obl~gat~on o pay ~oney, ayeth it and takes no Acquittance, by the Com~on aw he shall be co~pel~ed o pay the Noney again. But when it appeareth, th& the Plaintiff will recover at Law, the Scrjeant may advise the Defendant to take a Subpcltna in Chancery, notwithstanding his Oath. So 1 H. 7, 14. If be deliver an Ac uittanee without Seal, or the &heyis paid within a short Time after the Day, or if 9 ose the A~uitt~nce, f ~~~d~ente had in any of these Cases the Party may resort to Equity. 22 E. 4, and 7 H. 1, 11. Also, after Jud~ent n those Cases, if he Party have a Release he may have [ I an Audi~~ ~re~a hich is a Latin Bill in Equity, if the other Party’s Conse~ence be so large as to demand a double Satisfaction. So if the Statute be eptred into by Duress or ~en~e, ho~~h he Party be in ~x~ut~on, et he may avoid it by Duress of I~prison~~nt, 8 E. 4; Fit%. Hat. Bre. 104, L. 5, Ed. 4 ; Audita Querela, 21. AQd yet it is a ~~dg~ent por) Recosd, and so of a Judgnient by Co~e~ion. nd S~tisfae- tion acknowle~ed y a Letter of Attorney which is lost, or cannot be psodqced. And in the Cm of Earning vers. Casto~, Midi. 3 Jac. in B. R. on an A~d~ta ~~re~a rought p r ~~~~~ ~~ Gurim, If a Judgment be given upon an usurious contract^ and it is Part of the Agree~ent o have a Judgment, the Defendant may avoid such Judgment by an Audita Querela, or by a Scire Facias, brought upon the same, So if a Judg~ent e had against an Infant by Covin, as if an Infant be inveigled to be Bail for one in any Court at ~‘estminster, e may have an ~~~a u r~~a o avoid the same, TTia. 7 Jac., ~ark~~m. em. Turner, and 8 H. 6,10. So if Jud~ent be had by Covin or Co~lu~~on g~nst n Executor to defraud the C~~itors, f it be pleaded in Bar, the Covin and ~o~usion ay be averred at f1Q] Law by ~epli~tion, and the Jud~ent rustrat~ hereby, 3 E. 6, 36. And nQte ; Every ~ut~~wry s a Judgment, yet the Party may have Remedy in Conscience against hlrn that caused him to be outfaw’d ~vithout ust Cause, Dmt. I tud. fib. 2 c. 21 ; 21 N 7, 7; 9 N 6, 20. So if one neglect to inrol his Deed of ~arga~n nd Sale, being his onIy ~ss~ran~, as in Jaques and Huntleg’s Case in this Coart, 13 Junii 2599, and the Bargainor brings an Ejectiow firmm against him, and hath Ju~ent, he Bargainee may resort to Chancery, and there be reliev’d, if not for the Land, yet for the Money paid. And in Morgan and Parry’s Case, Pssh, 2 Elk A Woman had an Eatate in a Rouse for her Life di~unishable f Waste; and yet she was enjoined not to commit Waste in the House, ~ontrary o the Case of Lewis Boles, Lib. 11. re f not because of the Prejudice to him in Ecmainder ?) By all which Cases it app~retli, hat when a ~~udg~ie~t s obtaj~ied y Oppre~on, Wrong and a hard Conmience, the Chancellor will frustrate and set it aside, not fos any error or Defect n the Jud~ent, ut for the hard Con~ie~~ fthe Party; and that in such Cases the Judges Ell] also play the ChaDcellors; and that these are not thin the Statute 4 E. 4, ap. 23. hi eh is, That after a ~Jud~i~e~t iven in the Court of our Sovereign Lord the King, the Parties and their Rem shall be in Peace, until the ~Jud~ent e ~ndone y ~t~int r Error. But secondly, It iS objected, That this is a ~J~d~~e~t pon a ~tatute-~a~r. To which f an8wer, It has ever been the Endea~our f all Parlia~~nts o meet with the corrupt Consciences of Men a8 much as mi ht be, and to supply the Defects of the Law therein, and if this Cause were eshibitef to the Par~i~~c~t, t would soon be osdcrcd and determined by Equity; and the Lord Chancellor is, by his Place ander hrs ~ajesty, o supply that Power until it msy be h,ad, in all ~fatte~s f Metm and ~~u~, etween Party and Party nd the Lord Chancellor do& not except to the Statute or the Law ~~~ud~ent~, pon the S~~tute, ut taketh h~~sel~ ound to obey that Statute according to 8 W. and the Judgment thereupon may be just, and the College in this Case may have a goo T’itle in Law, and the ~udg~en~ et standeth in Force. It seemet~i by the Lord Coke’s %?port, fol, 118, in Dr. ~~~ia~’s ase, That S%tutes are not 80 sacred as that the ~quity Zg] of them may not be exarokd. For  488 THE EARL OF OXFORD’S CAME 1 CE T. REP. 13. be saith, That in many Gases the Common Law hath such a Prerogative, as that it can controd Acts of P~~ament, nd adjudge them void; as if they arc against Go~mon i~ht, r Reason, or Re~ugna~t, r ~m~ssib~e o be performed, and for that he vouches 8 E. 3, 30; 33 E. 3; Cessavit, 41,42; Nat, Brev, 209; Plowd. 110; 27 H. 6 ; Annu~ty, 1 1 Elk Rot. 303. And yet our Books are, That the Acts and Statutes of Parliament ought to be revers’d by Parliament (only~~ nd nut other- de, Rro. Tit. Error, 65, &c., and 7 W. 6, 28; 21 E, 4, 46; 29 E. 3, 24, and upon that Rwason the Lord Chancellom, since the Device of the Action, to be brought by Parsons upon the Statute of 3 Ed. 6, have enjoyned the Stay thereof. And the Judges themselv~ o play the Chancellors Parts (upon Statutes, making Construction of them according to ~~u~ty, arying from the Rules and Grounds of Law and enlarging then1 pro bono p,b ico, gainst the Letter and Intent of the Hakers, whexeof our Books have many ~undr~s f Cases, 15 E. 7, and 14 E. ?,I4 ; 42 E. 3, 6, &c. Flrill you then have Equity suppress^ in all Cases, wherein a Judg- ment at Law, or upn Statute, is had 1 (133 The Use of the Chancery has been in all Ages to examine E~uity n all Cases, saving ~ainst he King’s Prerogative, as 35 E, 6, 27; 11 E. 4, 16; and Doctor and ~tudent, ib. 2 cap. 5, 16. then you must have a Special Stat~~te o exeept t.he C~an~llor. or general Statutes do extend to the particu~ar TJsa cs of all the great Equity. In Chancery upon a Recognizance, a Capias may be awarded, and the Precedents of that Court, shall close up the Mouths of the Judges of the Common Law, notwith- s~anding he Statute of Magna- Charta, mp. 29. Quod nullus liber homo capiatur aut i~pr~sonetur isi per legale Judic~urn arium suoru~ el per Legem Terra. And so t was ~~udg~ n Clement Parson’s Case, 21 Elk. in the Bxchequer, which you may see in 8 Coke, 142, and 25 Eliz. in ~a~in nd Bye’s Cme, and in Sac. in Corn. Banco, Eigham’s Case, and Kihvay’s Case vouched to be adjudged, 9 Co. 29. Vide Doctor and Student, 306 a, and every Court at ~~tminster ught to take Notice of the Usages and ust toms of the Rest of the Courts at ~~t~~nster, vhich arc as a Law to those ~ou~s~ nd of which the Common Law takes Notice. 2 Co. 53, 65, 503, 4; 11 E. 4, 2. [IQ The ~tatute f 5 EEz. of Perjury ~recteth ow Perjury shall be unished, saving the ~uthority f the Star-chamber et for Perjury committed in &ancery, either in an Affidavit, cr an Answer, e. If such Perjury appew to the Chancellor, the Party may be punished awarding to his Direction. Also, WO xchequer Man hath Privilege against a Subpmna, for Matters between Party and Party, where the King’s Interest cometh not in Questio~i, 0 Eliz. Cutts c~~tr~ eter Goodwin et a2”, and yet their Privilege hath several Statut~ hat give ~tren~th he~eu~to ut the Use snd ~r~~e~ts f the Chancery axe not altered by those Laws. And if a Statute Staple be extended, which by he Statute’is a Judg~ent f it seff. and the ~xecution hereof is directed by the Statute; yet it hnth been ustiaI in all Ages to moderate the hasd Consc~e~1c~ f the Conuz~, nd if they have been satis~ed with their Costs and Damages, after the of the full Value of the Land, the Land hath been di~charged y a Decrec of Equ ~~rdly, he Law of the Land speiiks not a~~nst his. For by 9 ed. 4, 16. The Chancellor sits in Chancery according to an absolute and uncontrolable Power, and is to judge [15J according to that which is alledged and proved ; but the Judges of the Common Law are to judge according to a strict and ordinary (or limited) Power. As 7 E. 7 fa. 10. A had Lands extended to him in ancient Demesne upon a Statute Mcrcl~ant, B p~irchased he Lands, and had a Recovery by Su~cranc~ n the Cotirt of ancient Demesne with Voucher, and entred, and ousted A. A brought a ~ubp~na, nd it WBS holden, That A could not falsify the Recovery at Law, and therefore he should be restored to the Possession, by the Chancery, for he had not any Remedy by the Common Law. Where note, That notwiths~ndin~ t double Judg- ment, yet the Judges directed them to the Chancery. And the S~tute f 4 E. 4, mp. 2 was never made nor in~‘end~ o r~tx~n he Power of the Chaneery in ~a~ers f quity, but to restrain the Chan~~lor nd the Judges of the Common Law, only in mat~rs neerly de~er~inable y Law, in legal ourts at ~estm~nster, specia~Iy f the Chancery, and especial y for Matters of
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