~agd~l en College;e, 39 H.

8, seised in Fee of the of Chr~st's Church, and

the Covent Garden, without AIdgate, London, eont seven Acres, demised them
for sevent~-two Years, rendr~ng E40 per Ann. for the ~c t o r ~, and $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 ~ctor y
525 per Ann. and $15 or the Garden. It being her ~aj esty~s Intent, That the
College should be advan~ed g ~at ~y in Profit, by having the Rectory to them and their
S uc~sso~ 123 discharged of the Lease for Years, w5ch in Present was worth to them
but $50 per Ann. the utmost Rent ; the same N ~S accord~ng~y erformed by a an-
veyance to her ~aj est~, and from her ~aj esty to Spinola, ant the Rectory, from
Spinola to the Goliege, after vhich Spinola and the Earl of Oxford his Assignee, and
his ~nder- ~~ants, have built upon the ~a r d ~n 130 Houses, and themin ~ t o ~ ~ e d
510,~00, which Assi ~ee and his ~nder - te~an~ have Bonds and ~ e u ~ t ~ given or the
~aj oyment thereof, to the Sum of ~20,000.
Note ; The Co~ege is hereby advanced $1700 more than they shodd have been,
if the former Lease had conti
This Conveyance having
Furc~ase~ from a Thing of li
a ge~era~ Case wherein Peps
resting secure on its Pa~sing thro'
The resent ~a s t e ~ of the Col1
Title both in Law and ~q~i t y , 131 seded a Leaeasethereof for three Years to one ~arxen,
who thereupon brought an ~j ec~ment against one J ohn Smith, for Trial of the Title
in R. R. whexein a Special Yer&ct w~bs had ; and while that de~~ded in A r g ~i ~e ~~
the Lease ended, and so no Possession could be a~arded for the ~l a i n ~~, nor Fruit
had of his Suit.
Yet hc p r o ~e d ~ to have the ~pi n~on of the J udges to know the Law (which N&S
a ~o~untary Act of his), $0 the Intent, if the Law were with him, he ~ i g ~ t begin a
new Suit at Law, and spare to ; and if the Law were against him,
that then he might proceed in the J udges of that Gourt having de-
Iivered their ~p i ~o n s a g a ~~t fore any J ~dg~ent entred upon the %lf,
the Earl and Mr. ~ ~ o d , for nd their Lessees, preferr~d their Bill ia
~ h ~ n ~ r y ; and then ~~dgment wm entred, Q ~ d ~ ~ ~ ~ w s w i l ~ ~ ~ ~ ~ per ~~~~~~.
the ~on~e~ance to be void by the ~t at ~t e of 13 Eliz. and that they evi
Parcel of the re misses by J udg~ent at Law ; which Pleaand ~ ~ ~ ~ r r e ~ were ~ e e ~ ~ e ~
by Order to Sir J ohn Ti dal and bfr, ~ool ~dge, who r e ~ ~ d , 141 That they tho~ght
it fit the Cause should proceed to Wearing, ~ot~thstand~ng the Plea and Demurrer ;
and ~terwards in ~ef a~l t of an A~wex, an Attach~ent was awarded a ~n s t the
defend an^, where~pon they were attsch'd, and a Cq& C m p return'd, and by
Order of the 22d of Ootob. 13 J ac. 1 116151, they were committed to the Reet for their
~ o n t e ~ ~ ~ in reusing to ans-lver; and do now stand bound over to answer their
~~n t emp ~, they still refusing to answer:
of one o P the 130 Housm, whereof
To which Bill in ~ ~ i a ~ ~ r ~ the Defenda~t put in a Plea and Denm
ulfi
486 THE EARL OF OXFORDS 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 speak wholly for him.
3. Nor does the Law of the Land speak against him. But that and Eq~i ty ought
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 ; and it was 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~ have always corrected such corrupt Consciences, and
caused them to render quid pro guo ; for 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~onabl e ~a~~~act i on fx?
As in the Case of Peterson vers. Bickmanj the Husband made a Lease of the Wifes
Land, and the Lessee being ignorant of the defe~ible Title built upon the Land, and
was at great Charge therein ; the ~ ~ ~ n d died, and the M7ifeavoided 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 a p ~e a ~t ~ by a J udgm~~t- ~ol ~ of 34 H. 6.
161 And (his Lordship) the Plaintiff in this Case only desires to besatisfied of the
true Value of the new 3u~~di ng and P~anti ~g since the Conve~~nce, and ~nveni ent
A ~ ~ o ~ a n ~ for the Purchase.
And Equity speaks as the Law of God speaks. But you would silence Equity.
1st. 3 e ~ ~ e you have a J udgment at Law.
2dly. Because that J udgment 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 ~ ~ siw r ~ ~ ~ ~ o j 4 E. 4, 11. a. Therefore the
~~~ancer y is aIway~open, and a~~hough the Tsrrn be ~j our ~ed the 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 27 E. 3, 15. The Chancellor must give Account to none but only to the King
and ~~r l i a~ent .
The Cause why there is a Chancery is, for that &$ens Actions are so divers and
j n~n~te, That it is impossibl~to make any general Law which may aptly meet with
every particular Act, and not fail in some C i r c ~s ~n ~~.
The 0 % ~ of the Chancellor is to correct E73Mens Consciences for Frauds, Breach
of Trusts, ~rongs and Oppre~ions, of what Nature soever they b, and to soften and
mollify the Extremity of the Law, which is called ~ ~ ~ r n ~ ~ Jw.
And for the J udgment, &c,, Law and Equity are distinct, both in their Courts,
their J udges, and the Rules of J ustice ; and yet they both aim at one and the same
End, which is, to do Right ; as J ustice and XeJrcy differ in their EEects and Opera-
tions, yet both join in the ~an~estat~on of Gods Glory.
But in this Case, upon the Matter there is no J udgment, 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~~onabl e.
But take it M a J udgment to all Intents ; then X answer,
That in this Case there is no Opp~~ti on to the J udg~ent ; ne~t~er will the Truth
ox J ustice of the J udgment be examined in this Court, nor any ~~cumstance depend-
ing thereupon; but the same is justified and approvd; and therefore a J udgment JS
ao Let to exam~ne it in Equity, so a8 all the Truth of the J ~ d ~ ~ ~ ~ , &c., be not^
examind.
[a] No Possession is e s t a ~~i s ~~ by the Kings Writ after that any J ~ ~ ~ ~ t is
sought to be i ~ ~ p e ~ h ~ ; for when the P ~~~n t ~f f by his Lessee seek~ng Relief at the
&c., may be sequ~tred until Answer.
1 CtAX. l$q. 9. TRE EARL OF OXPORDEJ CASE 4817
Common Law is barred, then is his Time to seek Relief in Chancery, when the
inst him, Doctor and Stu~ent, fol. 16. A Serjeant is sworn to
to L&w. tbat is, according to the Law of God, the Law of
the Land; and upon both the Laws of God and Reason, IS
ground^t&t Rule, via To do as one woutd be done unto.
And therefore where one is bound in an Obl~gat~on to pay ~oney, payeth it and
takes no Acquittance, by the Com~on Law he shall be co~pel ~ed to pay the Noney
again. But when it appeareth, th& the Plaintiff will recover at Law, the Scrjeant
may advise the Defendant to take a Subpcltna in Chancery, notwithstanding his Oath.
So 1 H. 7, 14. If be deliver an Ac uittanee without Seal, or the &hey is paid
within a short Time after the Day, or if 5 9 lose the A~ui tt~nce, if ~ ~ ~ d ~ e n t be had
in any of these Cases the Party may resort to Equity. 22 E. 4, and 7 H. 1, 11.
Also, after J ud~ent in those Cases, if the Party have a Release he may have
[$I an A u d i ~ ~ ~ ~ r e ~ a , which i s a Latin Bill in Equity, if the other Partys Conse~ence
be so large as to demand a double Satisfaction. So if the Statute be eptred into by
Duress or ~e n ~e , t h o ~~h the Party be in ~x ~u t ~o n , yet he may avoid it by Duress
of I ~pr i son~~nt, 18 E. 4; Fit%. Hat. Bre. 104, L. 5, Ed. 4 ; Audita Querela, 21. AQd
yet it is a ~~d g ~e n t upor) Recosd, and so of a J udgnient by Co~e~i on. and S~tisfae-
tion acknowle~ed by a Letter of Attorney which is lost, or cannot be psodqced.
And in the Cm of Earning vers. Casto~, Midi. 3 J ac. in B. R. on an A ~ d ~ t a
~ ~ r e ~ a brought p$r ~~~~~0~~ Gurim, If a J udgment be given upon an usurious
contract^and it is Part of the Agree~ent to have a J udgment, the Defendant may
avoid such J udgment by an Audita Querela, or by a Scire Facias, brought upon the
same,
So if a J udg~ent be had against an Infant by Covin, as if an Infant be inveigled
to be Bail for one in any Court at ~estminster, he may have an A ~ ~ ~ a ~ u $ r ~ ~ a to
avoid the same, TTia. 7 J ac., ~a r k ~~m. vem. Turner, and 8 H. 6,10. So if J ud~ent
be had by Covin or Co~l u~~on ag~nst an Executor to defraud the C~~i tors, if it be
pleaded in Bar, the Covin and ~o~usi on may be averred at f1Q] Law by ~epl i ~ti on,
and the J ud~ent f rustrat~ thereby, 3 E. 6, 36. And nQte ; Every ~u t ~~wr y is a
J udgment, yet the Party may have Remedy in Conscience against hlrn that caused
him to be outfawd ~vithout just Cause, Dmt. I% Stud. fib. 2, c. 21 ; 21 N. 7, 7; 9 N.
6, 20.
So if one neglect to inrol his Deed of ~ar ga~n and Sale, being his onIy ~s s ~r a n ~,
as in J aques and Huntlegs Case in this Coart, 13 J unii 2599, and the Bargainor brings
an Ejectiow firmm against him, and hath J u ~e n t , the Bargainee may resort to
Chancery, and there be relievd, if not for the Land, yet for the Money paid.
And in Morgan and Parrys Case, Pssh, 21 El k A Woman had an Eatate in a
Rouse for her Life di~unishable of Waste; and yet she was enjoined not to commit
Waste in the House, ~ontrary to the Case of Lewis Boles, Lib. 11. re, If not
because of the Prejudice to him in Ecmainder ?)
By all which Cases it app~retli, That when a ~~udg~i e~t is obtaj~ied by Oppre~on,
Wrong and a hard Conmience, the Chancellor will frustrate and set it aside, not fos
any error or Defect i n the J ud~ent, but for the hard C o n ~i e ~~ of the Party; and
that in such Cases the J udges Ell] also play the ChaDcellors; and that these are not
thin the Statute 4 E. 4, cap. 23. hi eh is, That after a ~J u d ~i ~e~t given in the
Court of our Sovereign Lord the King, the Parties and their Rem shall be in Peace,
until the ~J ud~ent be ~ndone by ~t ~i n t or Error.
But secondly, It iS objected, That this is a ~ J ~ d ~ ~ e ~ t upon a ~tatute- ~a~r.
To which f an8wer, It has ever been the Endea~our of all Parl i a~~nts to 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 P ar ~i ~~c ~t , it would soon
be osdcrcd and determined by Equity; and the Lord Chancellor i s, by his Place ander
hrs ~aj esty, to supply that Power until it msy be h,ad, in all ~f atte~s of Me t m and
~ ~ u ~ , between Party and Party ; and the Lord Chancellor do& not except to the
Statute or the Law ~~~u d ~e n t ~, upon the S~~tute, but taketh h ~~s e l ~ bound to obey
that Statute according to 8 W. 4, and the J udgment thereupon may be just, and
the College in this Case may have a good Title in Law, and the ~u d g ~e n ~ yet standeth
in Force.
It seemet~i by the Lord Cokes %?port, fol, 118, in Dr. ~ ~ ~ i a ~ s Case, That
S%tutes are not 80 sacred as that the ~qui ty [Zg] of them may not be exarokd. For
488 THE EARL OF OXFORDS 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, and adjudge them void; as if they arc against
Go~mon Ri ~ht, or Reason, or Re~ugna~t, or ~m~ssi b~e to 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, 41 ; 21 El k Rot. 303. And yet our Books are, That the Acts
and Statutes of Parliament ought to be reversd by Parliament (onl y~~ and nut other-
d e, 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 J udges themselv~ do play the Chancellors Parts (upon Statutes, making
Construction of them according to ~~u ~t y , varying from the Rules and Grounds of
Law, and enlarging then1 pro bono p,b&ico, against the Letter and Intent of the
Hakers, whexeof our Books have many ~u n d r ~s of Cases, 15 E. 7, and 14 E. ?,I 4 ;
42 E. 3, 6, &c. Flrill you then have Equity suppress^in all Cases, wherein a J udg-
ment at Law, or upn Statute, is had 1
(133 The Use of the Chancery has been in all Ages to examine E~ui ty in all Cases,
saving ~ai nst the Kings Prerogative, as 35 E, 6, 27; 11E. 4, 16; and Doctor and
~tudent, lib. 2, cap. 5, 16. then you must have a Special Stat~~te to exeept t.he
C~an~l l or. For 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 J udges of the Common Law, notwith-
s~anding the Statute of Magna- Charta, mp. 29. Quod nullus liber homo capiatur aut
i ~pr~sonetur nisi per legale J udic~urn Parium suoru~ vel per Legem Terra. And so
it was ~ ~ u d g ~ in Clement Parsons Case, 21 Elk. in the Bxchequer, which you may
see in 8 Coke, 142, and 25 Eliz. in ~ a ~ i n and Byes Cme, and in 7 Sac. in Corn. Banco,
Eighams Case, and Kihvays Case vouched to be adjudged, 9 Co. 29. Vi de Doctor
and Student, 306 a, and every Court at ~~tmi nster ought to take Notice of the
Usages and ust toms of the Rest of the Courts at ~~t ~~n s t e r , tvhich arc as a Law to
those ~ o u ~ s ~ and of which the Common Law takes Notice. 2 Co. 53, 65, 503, 4; 11
E. 4, 2.
[IQ The ~tatute of 5 EEz. of Perjury ~recteth how Perjury shall be unished,
saving the ~uthori ty of the Star-chamber ; yet 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 Exchequer Man hath Privilege against a Subpmna, for Matters between
Party and Party, where the Kings Interest cometh not in Questio~i, 20 Eliz. Cutts
c ~ ~ t r ~ Peter Goodwin et a2, and yet their Privilege hath several Statut~ that give
~tr en~th the~eu~to ; but the Use snd ~ r ~ ~ e ~ t s of the Chancery axe not altered by
those Laws.
And if a Statute Staple be extended, which by $he Statuteis a J udg~ent of it seff.
and the ~xecution thereof is directed by the Statute; yet it hnth been ustiaI in all
Ages to moderate the hasd Consc~e~1c~ of the Conuz~, and 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 by a Decrec of Equ
~~r d l y , The Law of the Land speiiks not a ~~n s t this.
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 J udges 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 the Lands, and had a Recovery by Su~cranc~ in the
Cotirt of ancient Demesne with Voucher, and entred, and ousted A. A brought a
~ubp~na, and 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 notwi ths~ndi n~ ;t double J udg-
ment, yet the J udges directed them to the Chancery.
And the S~tute of 4 E. 4, mp. 2 was never made nor i n~ end~ to r ~t x ~n the
Power of the Chaneery in ~a ~e r s of quity, but to restrain the Chan~~l or and the
J udges of the Common Law, only in mat~rs rneerly de~er~i nabl e by Law, in legal
Courts at ~estm~nster, especia~Iy of the Chancery, and especial f y for Matters of
1 CHAN. REP. 16. THE EARL OF OXFORDS CASE 489
Pr~e~di ngs, and not in eq~table, and that they should be coastant and certain in
their own J udgments, and not play Fa& and Loose. For by 37R. 6,13, and divers
other Authorities; no Writ of Error or A t~i nt lieth when the Suit is by Subpmna,
and the Party only seeks to Equity for the Equity of his Cause.
And therefore J udgments by Default, c;Jonfession, &a, and not by Verdict, are not
w~thin this Law, so as to bind the J udges in their legal Proceedings; rn 5 E. 4, 38.
In Debt upon an Ob~igation against A, B, C, and D, J udgment by Default is had
against A and B. C demurs, and D pleads to Issue, and by the [IS] Opinion of the
;Sud es :t Supersedeas was awarded, & hoc causa Conscientim, for that the J udgment
wasty Default.
In the next Place it is considerable, how far the Statute of 27 E. 3, cap. 1, doth
extend, to check the Power of the Chancery in this Case. Now the proper Exposition
of this Statute is from those Statutes that were the Foundatio~ thereof, and where-
upon this ~~t u t e was built, it being not ~nt r ~uct i v~ of New Law; but declarative
A ~ ~ i ~ ~ ~ Juris.
The precedent Statutes, which do explilin this Statute, are 32 E, I, made at Carlisle
4 Ed. 3, e. 6, in Con~r~ati on thereof, 25 E. 3, cap. 22, and 25 E. 2, cap. 1, of Provi-
sions of Benefices, these being in Time before 27 E. 3, and 38 E. 3, which comes after
and recites the Statute of 25 E. 3, and this Statute of 27 E. 3, and confirms them with
Additions for further Remedies, they being all linkd together in one Chain, which is
further apparent by the Recitals in the Law, and by the re amble thereof, which doth
manifest the Minds of the Law-makers, and do naturally explain the Laws, that they
do all extend to Ecclesiastical J urisdiction and Conuzmnce, and not to Temporal; and
the same is more apparent by other subsequent Laws in several Kings Reigns
following,
But for the Temporal Courts, and the Support of their J udgments, there are only
two Statutes, viz. Westminster 2, cap. 5, and 4 $3. 4, cap. 23, which are already
answerd.
Vi& the ~gument for the A ut~~o~ty and J uris~etion of the Court of Chancery,
at the End of this Volume, where these two Statutes are explained.
[See S. C. with full notes, Wh. & T. L. C. 7th ed. vol. i, p. 730.1