depositions smelt of practice, and upon motion ought to [112 a] be suppressed, and therefore ought not here to be al lowed. Because the originals of those depositions at York were all gone, and there were also no exemplifications of them but in the hands of the defendants, so that the king must fight with weapons assigned him by parties adversary. That this very point had been, by the late queen's commandment, very carefully examined in chancery, 28 Eliz. only upon petition, without bill and answer, between Francis Dacres the petitioner, and the earl of Arundel and his countess, and the lord William Howard and his lady, defendants, as they are now, wherein all the interrogatories were appointed to be perused by the chief justice, and the examinations made not by the examiner, but by certain doctors of law; at which time divers of these witnesses that had been examined 8 Eliz. were examined. Those depositions were little questioned by the defendant's counsel, but were clearly allowed and read by the court, though they were without bill and answer; for they were by special direction in that cause, for expedition. They were with such careful proceedings and reverend persons as before. They were by consent of parties, and the then defendants examined very many witnesses therein. But out of this curiosity it was enforced, that the other depositions taken, no man knows how, were then either not known, or not regarded, nor ought now to be allowed. 5, 6. 7. 8. 9. taken in the council at of freehold But the great and main reason that they were not allowed to be read here, was, because the court where Depositions they were taken was not holden competent, in a case of court of the this nature, and for depositions to be read in other courts. York in case And we all held it dangerous to give a precedent in refused in this court with such assistance, and in such a case. though it did not appear whether their instructions then bare it, yet the reformations of late prove, that it was not allowable. And chancery. 254 KENT VS. HALL. DON DIEGO, &c. vs. BINGLEY. [1136] KENT VS. HALL. Issue not joined aright. 1 596. 1 Cr. 593. 5 Co. 43. a. A repleader will be awarded after a verdict on an immaterial issue. (1) BETWEEN Kent and Hall, Mich. 42 and 43 Eliz. Rot. Roll. 204. 3 Cr. 908. in debt upon an obligation upon condition to pay ten pounds ten shillings, the defendant pleads payment of ten pounds, secundum formam conditionis; surque issue, and verdict for the plaintiff; and yet repleader was awarded. See a like in quare impedit between Danby and the archbishop of York, Hill. 7 Jac. Regis, Rot. 901 and 902. Justice Warberton reported a case of one Armsey, when dower was brought against the feoffee of the hus3 Cr. 367. Mo. band, who pleaded detinue of charters, (which is no plea but for the heir,) whereupon issue was taken, and the verdict for the defendant, and judgment given for the defendant, and error brought upon it; but he could not tell what became of it. Issue insuffi cient. Ant. 69. Post. 320. 867. Amendment by putting the sheriff's sur After verdict it was moved that the habeas corpus was returned Barthol. Miles, Vic. & Michael, which was the turn. Post. 130. sheriff's surname omitted. And it was amended by rule. Yelv. 110. 1 Cr. 528. Noy. 72. name to a re 2 Cro. 445. 1 Ro. 295. (1) Vide ante 52, Foster v. Jackson, n. (4.) Chancery. Ant. 78. Saund. 2, 260. con. Ant. 11. DON DIEGO, &c. vs. BINGLEY. A foreign ambassador is not, ex officio, a procurator for the individual subjects of his sovereign, and cannot, without a special appointment by them, prosecute a suit in chancery, in their behalf. DON DIEGO SERVIENTI de Acuna, the Spanish ambassador, exhibited his bill in chancery against Sir Richard Bingley, upon the case supra, as procurator general for all the king of Spain's subjects, and laid the goods to belong to the subjects of his master generally, without naming any persons certain, and then laid the spoil at sea there, &c. [114] how he may The defendant demurred upon the bill, and it was referred to my brother Nichols and myself, scil. the demurrer, by my lord chancellor. We heard serjeant Mountague for the ambassador, and serjeant Crew and Hutton for the defendant; and we were of opinion that the ambassador was not to be answered to this bill, for (to omit that a procurator ought to sue in the name of his principal) no Ambassador, man can make a procurator for me but myself; therefore deal as a prothe king cannot make a procurator for all, or any of his curator, or not. subjects, without their allowance; that is, for the part of the plaintiff. Again, on the part of the defendant, the ambassador, neither by release, nor sentence can discharge him against the principal, from whom he hath no procuration. Again, the office of an ambassador doth not include a procuration private, but public, for the king; nor for any several subject, otherwise than as it concerns the king and his public ministers to protect them, and procure their protection in foreign kingdoms, in the nature of an office and negotiation of state; and therefore they may and ought to mediate, prosecute, and defend for them, or any one of them at the council table, which is as it were a court of state. But when they come to settled courts, which do and must observe essential forms of proceedings, scil. processus legitimos, then they must be ruled by them, and not confound all rules; except some precedents could be found in chancery. But we made no report, because we advised another course, whereunto both parties consented. And we the judges of the Common Pleas, where this cause depended, by prohibition appointed a suit by consent in chancery, only to examine witnesses, and then we to determine the cause, as judges of our own court arbitrarily, not by warrant of any order of chancery. And so large a bill being founded only upon our order and consent of parties, we made a final order, whereof the main was, that two hundred pounds was to be paid to the ambassador, he giving security of a much greater sum (because the ambassador had made a high estimate,—and indeed the goods, not allowing just defalcations of spoils, [114 a] salvage and other things, were two thousand and six hundred pounds, or two thousand and seven hundred pounds) to secure the defendant against all proprietaries, and other claims. Vide supra. Star Chamber. Breviates to juries. Vaugh. 125, 152. BRADSHAW vs. SALMON. A bill, in the star chamber, does not lie against a jury, for giving excessive damages. Depositions taken in other courts are not admitted in the Star Chamber. IN the star chamber between Bradshaw and Salmon, in an action of covenant, the same Salmon had upon the trial delivered breviates to the jury, by means whereof two hundred marks damages were given against Bradshaw, now the plaintiff, when it appeared that there was no cause of damage in effect, but only somewhat must be given, because the issue, by not pleading the truth in form, was passed against him; and though the plaintiff in this case had an ordinary remedy in law, by attaint for excessive damages; yet, for the difficulty of proceeding in attaint, the court gave him one hundred and sixty pounds Bill cannot lie damages here. Note, that the jury were not defendants, which yet they might have been here, in respect of the briefs received. But I hold that a bill against them, only for giving of excessive damages, could not lie. against a jury for giving excessive damages. Anonymous. admits no for- In a suit in the star chamber, witnesses were examined to prove what was deposed concerning a will in the ecclesiastical court. But because depositions are not allowed in star chamber taken in other courts, they were rejected as a crafty device to induce depositions against the rule. [115] HOSKINS' CASE. Of tithes and consultations. [115 a] SIR THOMAS SHERLEY'S CASE The effect &c. of cap. utlagatum. GRANVILE & ALLEN'S CASE. Upon the defendants' refusal to answer interrogatories in the star chamber, the court ordered them o be put in irons and so more and more clogged till they answered. FLOWER'S CASE. The buying of a title, to be paid for if recovered, but not otherwise, is champerty; and the prosecuting of a suit on such title, is maintenance. Star chamber. Champerty, B. bought, but ONE Blanche Flower bought a title thus; that if he Ro. 2 Abr. 111. could recover it he should pay two hundred pounds, 7. Maintenance otherwise nothing. And now he was sued in the star of a title chamber for the buying, and maintenance of suits after; nothing to be the buying was laid upon the statute of 32 H. 8. but out he recovered. of time, scil. after the year. So for that part he could not be questioned. The maintenance the defendant's counsel said was lawful, because he had taken the state of the land, so he maintained his own cause: yet he was sentenced for that point. For it was said, that till he had recovered it was not in effect and truth his, because he was to pay nothing if he recovered not. And it was not meant unto him to be given him freely. So all the while he maintained the title at the peril of the owner. Besides, this being a mere devise and fraud, and practised by a soliciter to transfer to himself another man's title, to follow upon a casual match, was to be met withal in time. Quare, if this will lie upon the statutes at the common law courts. (1) (1) An agreement between an attorney and his client that the attorney shall receive for professional services a certain proportion of the sum which may be recovered in a suit, though pending in another state, comes within the description of champerty. 1 Pick. 415, Thurston v. Percival. Champerty is an offence at common law, and is presumed to paid without [116] |