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The Doctor and Student (1518)
Christopher St. Germain
In what manner a man shall be holpen by equity in the laws of England
First, It is to be understood, there be in many cases divers exceptions from the general grounds of the law of the realm by other reasonable grounds of the same law, whereby a man shall be holpen in the common law. As it is of this general ground, that it is not lawful for any man to enter upon a descent; yet the reasonableness of the law excepteth from that ground an infant that hath right, and hath suffered such a descent, and him also that maketh continual claim, and suffereth them to enter, notwithstanding the descent. And of that exception they shall have advantage in the Common law. And so it is likewise of divers statutes; as of the statute whereby it is prohibited that certain particular tenants shall do no waste, yet if a lease for term of years be made to an infant that is within years of discretion, as of the age of five or six years, and a stranger do waste, in this case this infant shall not be punished for the waste, for he is excepted and excused by the law of reason. And a woman covert, to whom such a lease is made after the coverture, shall be also discharged of waste after her husband’s death, by a reasonable maxim and custom of the realm. And also for reparations to be made upon the same ground, it is lawful for such particular tenants to cut down trees upon the same ground to make reparations. But the cause there, as I suppose, is, for that the mind of the makers of the said statute shall be taken to be, that that case should be excepted. And in all these cases the parties shall be holpen in the same court, and by the common law. And thus it appeareth, that sometime a man may be excepted from the rigor of a maxim of the law by another maxim of the law; and sometime from the rigor of a statute by the law of reason, and sometime by the intent of the makers of the statute. But yet it is to be understood, that most commonly where any thing is excepted from the general customs or maxims of the laws of the realm by the law of reason, the party must have his remedy by a writ that is called subpoena, if a subpoena lie in the case. But where a subpoena lieth, and where not, it is not our intent to treat of at this time. And in some cases there is no remedy for such an equity by way of compulsion, but all remedy therein must be committed to the conscience of the party.
Doct. But in case where a subpoena lieth, to whom shall it be directed, whether to the judge or the party?
Stud. It shall never be directed to the judge, but to the party plaintiff, or to his attorney; and thereupon an injunction commanding them by the same, under a certain pain therein to be contained that he proceed no farther at the common law till it be determined in the king’s chancery, whether the plaintiff had title in conscience to recover, or not: and when the plaintiff, by reason of such an injunction, ceaseth to ask any farther process, the judges will in like wise cease to make any farther process in that behalf.
Doct. Is there any mention made in the law of England of any such equities?
Stud. Of this term equity, to the intent that is spoken of here, there is no mention made in the law of England: but of an equity derived upon certain statutes mention is made many times, and often in the law of England; but that equity is all of another effect than this. But of the effect of this equity that we now speak of, mention is made many times: for it is ofttimes argued in the law of England, where a subpoena lieth, and where not, and daily bills be made by men learned in the law of this realm to have subpoenas. And it is not prohibited by the law, but that they may well do it, so that they make them not but in case where they ought to be made, and not for vexation of the party, but according to the truth of the matter. And the law will in many cases, that there shall be such remedy in the chancery upon divers things grounded upon such equities, and then the lord chancellor must order his conscience after the rules and grounds of the law of the realm; insomuch that it had not been inconvenient to have assigned such remedy in the chancery upon such equities for the seventh ground of the law of England. But forasmuch as no record remaineth in the king’s court of no such bill, ne of the writ of subpoena or injunction that is used thereupon; therefore it is not set as for a special ground of the law, but as a thing that is suffered by the law.
Doct. Then sith the parties ought of right in many cases to be holpen in the chancery upon such equities; it seemeth that if it were ordained by statute, that there should be no remedy upon such equities in the chancery, nor in none other place, but that every matter should be ordained only by the rules and grounds of the common law, that the statute were against right and conscience.
Stud. I think the same: but I suppose there is no such statute.
Doct. There is a statute of that effect, as I have heard say, wherein I would gladly hear thy opinion.
Stud. Shew me that statute, and I shall with good-will say as me thinketh therein.