~ a g d ~ l College;e,

en
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~-twoYears, rendr~ngE40 per Ann. for the ~ c t o rand
~ , $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 ~ c t o r y
525 per Ann. and $15 or the Garden. It being her ~ a j e s t y ~Intent,
s
That the
College should be advan~edg ~ a t in
~ yProfit, by having the Rectory to them and their
S u c ~ s s 123
o ~discharged of the Lease for Years, w5ch in Present was worth to them
erformed by a a n but $50 per Ann. the utmost Rent ; the same N ~ Saccord~ng~y
veyance to her ~ a j e s t and
~ , from her ~ a j e s t yto Spinola, a n t the Rectory, from
Spinola to the Goliege, after vhich Spinola and the Earl of Oxford his Assignee, and
his ~ n d e r - ~ ~ a nhave
t s , built upon the ~ a r d ~130
n Houses, and themin ~ t o ~ ~ e
510,~00,which A s s i ~ e eand his ~ n d e r - t e ~ have
a n ~Bonds and ~ e ugiven
~ or
t the
~
~ajoymentthereof, to the Sum of ~20,000.
Note ; The Co~egeis hereby advanced $1700 more than they shodd have been,
if the former Lease had conti
This Conveyance having
F u r c ~ a s from
e ~ a Thing of li
a g e ~ e r Case
a ~ wherein Peps
resting secure on its Pa~singthro'
The resent ~ a s t of
e ~the Col1
of one o the 130 Housm, whereof
Title both in Law and ~ q ~ i t131
y ,seded a Leaease thereof for three Years to one ~ a r x e n ,
who thereupon brought an ~ j e c ~ m e nagainst
t
one John Smith, for Trial of the Title
e dA r g ~ i ~ e ~
in R. R. whexein a Special Yer&ct w~bshad ; and while that d e ~ ~ d in
the Lease ended, and so no Possession could be a ~ a r d e dfor the ~ l a i nnor
~ ~Fruit
,
had of his Suit.
Yet hc p r o ~ e to
d ~have the ~ p i n ~ of
o nthe Judges to know the Law (which N&S
a ~ o ~ u n t aAct
r y of his), $0 the Intent, if the Law were with him, he ~ i gbegin
~ ta
; and if the Law were against him,
new Suit at Law, and spare to
the Judges of that Gourt having dethat then he might proceed in
Iivered their ~ p i ~ o an gs a ~ ~ t
fore any J ~ d g ~ eentred
n t upon the %lf,
the Earl and Mr. ~ ~ o for
d ,
nd their Lessees, preferr~dtheir Bill ia
~ h ~ n; ~
andr then
y ~ ~ d g m ewm
n t entred, Q ~ ~ d ~ w i~ l per
~ ~~~~~~~.
w~ ~ s ~ ~
To which Bill in ~ ~ ithe aDefenda~t
~ ~ put
r in~ a Plea and Denm
the ~ o n ~ e ~ ato
n cbee void by the ~ t a t ~oft e13 Eliz. and that they evi
Parcel of the re misses by J u d g ~ e nat
t Law ; which Plea and ~ ~ ~were~~ e r er ~ ~e
by Order to Sir John Tidal and bfr, ~ o o l ~ d gwho
e , r e ~ ~141d That
, they t h o ~ g h t
it fit the Cause should proceed to Wearing, ~ o t ~ t h s t a n d the
~ n gPlea and Demurrer ;
and ~terwardsin ~ e f a ~ofl tan A ~ w e x an
, Attach~entwas awarded a ~ n sthe
t
defend an^, where~ponthey were attsch'd, and a Cq& C m p return'd, and by
Order of the 22d of Ootob. 13 Jac. 1116151, they were committed to the Reet for their
~ o n t ine reusing
~ ~ ~to ans-lver; and do now stand bound over to answer their
~ ~ n t e mthey
p ~ still
, refusing to answer:

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,
&c., may be sequ~treduntil Answer.
1. The Law of God speaks for the Plaintiff. Deut. 28.
2. And Equity and good Consci~ncespeak wholly for him.
3. Nor does the Law of the Land speak against him. But that and E q ~ i t yought
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 G r q e s 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 C h a n c e ~ ohave
~ always corrected such corrupt Consciences, and
caused them to render quid pro guo ; for the Common Law it self will admit no Contra& to be good without paid pro quo, or Land to pass without a valuable Consideration,
~ a ~ ~ ~ a cfx?t i o n
and therefore Equity must see that a pro~rt~onable
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~ibleTitle built upon the Land, and
~ died, and
~ thenM7ife avoided
d
the Lease at
was at great Charge therein ; the ~
Law, but was compelled in Equity to yield a Recornpence for the Building and Bettering 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
~ at J~u d g m ~ ~ t -of~ 34
o l H.
~ 6.
Land out of his &&ate, as a p ~ e a by
161And (his Lordship) the Plaintiff in this Case only desires to be satisfied of the
true Value of the new 3 u ~ ~ d i nand
g P ~ a n t i ~since
g the Conve~~nce,
and ~ n v e n i e n t
A ~ ~ o for
~ the
a nPurchase.
~
And Equity speaks as the Law of God speaks. But you would silence Equity.
1st. 3 e ~ you
~ have
e 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
~ ar - ~r ~~ 4
~ E.
~ 4~
, 11.o a. j Therefore the
therefore nullus receda-at a- C ~ ~ ~ 1siw
~ ~ ~ a n cise aIway~
ry
open, and a ~ ~ h o u gthe
h Tsrrn be ~ j o u r ~ the
e d 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 ~ e n t .
The Cause why there is a Chancery is, for that &$ens Actions are so divers and
j n ~ n ~ tThat
e , 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 E73 Mens Consciences for Frauds, Breach
of Trusts, ~ r o n g and
s Oppre~ions,of what Nature soever they b,and to soften and
~ Jw. ~
r
n
~
mollify the Extremity of the Law, which is called ~
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 Operations, yet both join in the ~ a n ~ e s t a t of
~ oGods
n
Glory.
But in this Case, upon the Matter there is no Judgment, but only a ~ ~ e o n t i ~ u a n c e
of the Suit, which gives no Possession; and altho to prosecute Law and Equity together be a Veration; yet voluntarily to attempt the Law in a doubtful Case, and
after to resort to Equity, is neither strange nor u n r ~ ~ o n a b l e .
But take it M a Judgment to all Intents ; then X answer,
That in this Case there is no O p p ~ ~ t i to
o nthe J u d g ~ e n ;
t n e ~ t ~will
e r the Truth
ox Justice of the Judgment be examined in this Court, nor any ~ ~ c u m s t a n dependce
ing thereupon; but the same is justified and approvd; and therefore a Judgment JS
a o Let to exam~neit in Equity, so a8 all the Truth of the J
~
d&c., ~be not^
~
~
examind.
[a] No Possession is e s t a ~ ~byi sthe
~ ~Kings Writ after that any J
~is
~
sought to be i ~ ~ p e for
~ when
h ~ ;the P ~ ~ ~ nbyt ~
hisf Lessee
f
seek~ngRelief at the

1CtAX. 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 ~ o n e ypayeth
,
it and
takes no Acquittance, by the C o m ~ o nLaw he shall be c o ~ p e l ~ etod 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 if5 9 lose the A ~ u i t t ~ n cife ~, ~ ~ dbe~hade n t
in any of these Cases the Party may resort to Equity. 22 E. 4,and 7 H. 1, 11.
Also, after J u d ~ e n in
t those Cases, ifthe Party have a Release he may have
[$I an A u d i ~ ~~ r ewhich
~ a ,i s a Latin Bill in Equity, if the other Partys Conse~ence
be so large as to demand a double Satisfaction. So if the Statute be eptred into by
Duress or ~ e n ~t eh o, ~ the
~ hParty be in ~ x ~ u t ~yet
o nhe
, may avoid it by Duress
of I ~ p r i s o n ~ ~18n E.
t , 4; Fit%.Hat. Bre. 104, L. 5, Ed. 4 ; Audita Querela, 21. AQd
yet it i s a ~ ~ d g ~upor)
e n Recosd,
t
and so of a Judgnient by C o ~ e ~ i oand
n . S~tisfaetion acknowle~edby a Letter of Attorney which i s lost, or cannot be psodqced.
And in the Cm of Earning vers. Casto~,Midi. 3 Jac. in B. R. on an A ~ d ~ t a
~ ~ r brought
e ~ a p$r ~~~~~0~~ Gurim, If a Judgment be given upon an usurious
contract^ and it is Part of the Agree~entto 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 J u d g ~ e n be
t 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
~ ~ u~$ rto~ ~ aa
avoid the same, TTia. 7 Jac., ~ a r k ~ vem.
~ mTurner,
.
and 8 H. 6,10. So if J u d ~ e n t
be had by Covin or C o ~ l u ~ ~aogn~ n s tan Executor to defraud the C ~ ~ i t o rifsit, be
pleaded in Bar, the Covin and ~ o ~ u s i omay
n be averred at f1Q] Law by ~ e p l i ~ t i o n ,
and the J u d ~ e n ft r u s t r a t ~thereby, 3 E. 6, 36. And nQte; Every ~ u t ~ ~ is
war y
Judgment, yet the Party may have Remedy in Conscience against hlrn that caused
him to be outfawd ~vithoutjust 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 ~ a r g a and
~ n Sale, being his onIy ~ s s ~ r a n ~ ,
as in Jaques and Huntlegs Case in this Coart, 13 Junii 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, P s s h , 2 1 Elk A Woman had an Eatate in a
Rouse for her Life di~unishableof Waste; and yet she was enjoined not to commit
Waste in the House, ~ontraryto 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 ~ ~ u d g ~isi obtaj~ied
e ~ t by O p p r e ~ o n ,
Wrong and a hard Conmience, the Chancellor will frustrate and set it aside, not fos
any error or Defect in the J u d ~ e n tbut
, for the hard C o n ~ i ofe the
~ ~Party; and
that in such Cases the Judges 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 given
~ e ~ in
t the
Court of our Sovereign Lord the King, the Parties and their R e m shall be in Peace,
until the ~ J u d ~ ebe
n ~t n d o n eby ~ t ~ iornError.
t
But secondly, It iS objected, That this is a ~ J ~ dupon
~ a~ ~ tea t~u t et - ~ a ~ r .
To which f an8wer, It has ever been the Endea~ourof all P a r l i a ~ ~ nto
t s meet
with the corrupt Consciences of Men a8 much as mi ht be, and t o supply the Defects
of the Law therein, and if this Cause were eshibitef to the P a r ~ i ~ ~
it cwould
~ t , soon
be osdcrcd and determined by Equity; and the Lord Chancellor is, by his Place ander
hrs ~ a j e s t yto
, supply that Power until it msy be h,ad, in all ~ f a t t e of
~ sM e t m and
~
~between
u Party
~ and
, Party ; and the Lord Chancellor do& not except to the
e n the
t ~ S,~ ~ t u tbut
e , taketh h ~ ~ sbound
e l ~ to obey
Statute or the Law ~ ~ ~ u d ~upon
that Statute according to 8 W.4, and the Judgment thereupon may be just, and
the College in this Case may have a good Title in Law, and the ~ u d g ~ yet
e nstandeth
~
in Force.
It seemet~iby the Lord Cokes %?port, fol, 118, in Dr. ~ ~ ~ iCase,
a ~That
s
y of them may not be exarokd. For
S%tutes are not 80 sacred as that the ~ q u i t [Zg]

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 ~ ~ a m e nand
t , adjudge them void; as if they arc against
t , ~ m ~ s s i bto~be
e performed, and for
G o ~ m o nR i ~ h t or
, Reason, or R e ~ u g n a ~or
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 E l k Rot. 303. And yet our Books are, That the Acts
and Statutes of Parliament ought to be reversd by Parliament (only~~
and nut otherd 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 Judges themselv~do play the Chancellors Parts (upon Statutes, making
Construction of them according to ~ ~ u ~varying
t y , 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 of~ Cases,
s
15 E. 7, and 1 4 E. ? , I 4 ;
42 E. 3, 6, &c. Flrill you then have Equity suppress^ in all Cases, wherein a Judgment at Law, or u p n Statute, is had 1
(133 The Use of the Chancery has been in all Ages to examine E ~ u i t yin all Cases,
saving ~ a i n sthe
t Kings Prerogative, as 35 E, 6, 27; 11 E. 4,16; and Doctor and
t e exeept t.he
~tudent,lib. 2 , cap. 5, 16. then you must have a Special S t a t ~ ~ to
C ~ a n ~ l l o rFor
. general Statutes do extend to the particu~arTJsa cs of all the great
Courts at ~ e s t m ~ n s t e especia~Iy
r,
of the Chancery, and especial y for Matters of
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, notwiths~andingthe Statute of Magna- Charta, mp. 29. Quod nullus liber homo capiatur aut
i ~ p r ~ s o n e tnisi
u r per legale Judic~urnParium s u o r u ~vel per Legem Terra. And so
it was ~ ~ u in dClement
g ~ Parsons Case, 21 Elk. in the Bxchequer, which you may
see in 8 Coke, 142, and 25 Eliz. in ~ a ~and
i Byes
n
Cme, and in 7 Sac. in Corn. Banco,
Eighams Case, and Kihvays Case vouched to be adjudged, 9 Co. 29. Vide Doctor
er
to take Notice of the
and Student, 306 a, and every Court at ~ ~ t m i n s t ought
Usages and ust toms of the Rest of the Courts at ~ ~ t ~ ~ n tvhich
s t e arc
r , as a Law to
~ of
s which
~
the Common Law takes Notice. 2 Co. 53, 65, 503, 4; 11
those ~ o u and
E. 4,2.
[IQ The ~ t a t u t eof 5 EEz. of Perjury ~ r e c t e t hhow Perjury shall be unished,
saving the ~ u t h o r i t yof 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 ~ ~Peter
t r Goodwin
~
et a2, and yet their Privilege hath several S t a t u t ~that give
~ t r e n ~tthhe ~ e u ~;t obut the Use snd ~ r ~ ~of the
e ~Chancery
t s axe not altered by
those Laws.
t it seff.
And if a Statute Staple be extended, which by $he Statuteis a J u d g ~ e nof
and the ~xecutionthereof is directed by the Statute; yet it hnth been ustiaI in all
Ages to moderate the hasd Consc~e~1c~
of the C o n u z ~and
, if they have been satis~ed
of the full Value of the Land, the Land
with their Costs and Damages, after the
hath been di~chargedby a Decrec of Equ
st
~ ~ r d lThe
y , Law of the Land speiiks not a ~ ~ nthis.
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~irchasedthe Lands, and had a Recovery by S u ~ c r a n cin~the
Cotirt of ancient Demesne with Voucher, and entred, and ousted A. A brought a
~ u b p ~ nand
a , 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 n o t w i t h s ~ n d i n;t~double Judgment, yet the Judges directed them to the Chancery.
And the S ~ t u t of
e 4 E. 4,mp. 2 was never made nor i n ~ e n dto~r ~ t x the
~ n
o r the
Power of the Chaneery in ~ a ~ eofr s quity, but to restrain the C h a n ~ ~ l and
Judges of the Common Law, only in m a t ~ r srneerly de~er~inable
by Law, in legal

1 CHAN. REP. 16.

THE EARL OF OXFORDS CASE

489

P r ~ e ~ d i n gand
s , not in eq~table,and that they should be coastant and certain in
their own Judgments, and not play Fa& and Loose. For by 37 R. 6,13,and divers
other Authorities; no Writ of Error or A t ~ i n lieth
t
when the Suit is by Subpmna,
and the Party only seeks to Equity for the Equity of his Cause.
And therefore Judgments by Default, c;Jonfession,&a, and not by Verdict, are not
w~thinthis Law, so as to bind the Judges in their legal Proceedings; rn 5 E. 4, 38.
In Debt upon an Ob~igationagainst A, B, C , and D, Judgment 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 Judgment
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~ Law; but declarative
upon this ~ ~ t uwas
t e built, it being not ~ n t r ~ u c t ofi vNew
A
~Juris.~
i
~
~
~
The precedent Statutes, which do explilin this Statute, are 32 E, I, made at Carlisle
4 Ed. 3, e. 6, in C o n ~ r ~ a t i othereof,
n
25 E. 3, cap. 22, and 25 E. 2, cap. 1, of Provisions 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 Jurisdiction 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 Judgments, there are only
two Statutes, viz. Westminster 2, cap. 5, and 4 $3. 4, cap. 23, which are already
answerd.
Vi& the ~ g u m e nfor
t the A u t ~ ~ oand
~ t yJuris~etionof 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