PROPOSALS  
Humbly Offered to the Consideration of the King's most Excellent Majesty, and of the Lords and Commons in Parliament: By Wa. Williams of the Middle Temple, Barrister at Law, in order to Regulate Proceed in Courts of Equity, by Act of Parliament.  
EVERY thing appears the more visible, when compared with what is most contrary to it; and I humbly conceive it may be a help to discover, in part, what is fit to be Altered and Releived against, in Proceed in Courts of Equity; by comparing the present Practice with the Primitive; which I think are very Contrary to each other in many Particulars, of which I shall mention a few.  
In Rolls' Reports, 1st. Part, Fol. 330, and 331. In the Case of Vawdry and Pannell. 
The old way of Relief against mistaken Decrees in Equity.  It is said, That in the 42d. and 43d. of Queen Elizabeth, it was Resolved, by all the Ju●●●● of England under th●s● 〈◊〉 ●hat a Decree was made in the High Court of Chancery, the Queen, upon Petition to her, might refer it to Justices (but not to any other) to Examine and Reverse the Decree, if there were Cause, and that the than Lord Chancellor did agreed to that Resolution: And this, I think, a very good Authority.  
In Rolls' Reports, Part 2d. Fol. 434. In the Cause of Hudson against Midleton. It is said, That in Time passed the Chancellor used to sand for the Judges, to know when Equity was to be Admitted against the Common Law, and when not; for, as is there said, the Common Law was not to be altered for every Pancy, and that it was difficult to know when Equity is to take Place against the Common Law.  
That Men well skilled and knowing in the Common Law, are fit to Correct the Errors of Courts of Equity: I humbly conceive this may be a Reason. The Common and Statute Laws are the main Rules and Measures of Right and Wrong; and therefore when a Question arises, Whether Equity shall Control the Common-Law, great Regard aught to be had to the Meaning and Intent of the Law, not to go point blank against it; and it is evident, none can have such effectual Regard to the Common Law, but such as well know and understand it: So that, as I conceive, it is a sort of legal Equity, an Equity qualified by Law, and not the Common, Natural, and seeming Equity of such as are not skilled in the Law is to take place in Judicature: And though the Judges of the Common Law, when they Judge in a Course of Law, are tied to Rules of Law, and observe them strictly, to prevent the Confusion that might be, if Law and Equity did run in one Channel; yet when they Judge in a Course of Equity, and are at Liberty so to do, I humbly Conceive they are the fit to Judge when Eqvity is to Overrule, or Supply the Law, by so much as they are the more knowing in the Law.  
There are several Instances of References by Queen Elizabeth, King James the 1st. and King Charles the 1st. upon Complaint of mistaken Decrees, and those were thought Times of good Administration of Justice, and free from Complaints against Proceed in Equity, for aught as I can found: And when Monarchy was Restored in King Charles the 2d. after a long Discontinuance, that Course was proposed to be Revived, but it was than, and hath been since said, That the King could not Legally grant such References: But that Matter would never be admitted to be Debated before him, nor since.  
If a Man supposeth himself Injured by a Judgement in the Kings-Bench, Common-Pleat, or Exchequer, 
Relief against erroneous Judgements at Law, to be had at all times.  in the Law Proceed there; and in a Cause Originally Commenced in one of those Courts, he hath an immediate Remedy, without waiting for a Parliament, and he may stop Execution on such Judgement, by bringing a Writ of Error; so that he is not liable to be forced out of the Possession of his Land or Money by the Judgement of any one of those Courts, without the Concurrence of another Court; and this is not looked upon to be any Reflection upon the Judges of the Court where the first Judgement was given.  
In like manner it is as to Decrees and Sentences in the Ecclesiastical Courts and Court of the Admiralty, upon which a Man may have an immediate Appeal; and unless the Court Appealed to, doth concur with the Court that made the Decree or Sentence complained of, such Decree or Sentence is of no effect; And therefore I humbly conceive there should be an immediate Appeal in the Intervals of Parliament from the Courts of Equity as to Equity, as there is from other Courts of Law as to Law, indeed it may be that Writs of Error and Appeals may be brought oftentimes for delay; but that delay is Recompensed with Costs of Suit, if the Judgement or Sentence be affirmed and it is evident, that. That Course keeps things in so good Order in those Courts, where Writs of Error and Appeals do lie, that we rarely meet with a Judgement of any of those Courts Reversed in Parliament in point of Judgement only.  
The having of an Appeal to Parliament from a Decree in Equity, may often hap too late: 
Appeals to Parliament, not to be always had when Occasion Requires.  For if a Man be forced to obey a mistaken Decree in the Interval of Parliament, when a Parliament comes, he hath a hard Game to play that hath been forced to part with his Weapons, his Money; to his Adversary, and knows not where to get more; and perhaps before the mistaken Decree be Reversed, the Party that got the Money by such Decree may be dead without Assets', or run out of reach; and though Parliaments have sat pretty often of late, yet in time of Peace they may not sit so often.  
Some will say there is not so much need of an immediate Appeal from a Court of Equity in the Intervals of Parliament: because a Man, if he apprehends himself injured by a Decree in Equity, may Re-hear his Cause; and after that he may have a Bill of Review.  
In Answer to which, I say it is true, Re hear may be had in Courts of Equity; 
As to Rehearings in the same Court where the mistaken Decree was made.  But I have heard it said by a Court of Equity, That though Bills of Review were Matter of Right, yet Rehearing were Matter of Favour only; and I have known some Causes have been often Reheard, and other Causes that I thought deserved it, could not obtain that Favour of being once Reheard; and a Re-hearing is not to be had after the Decree is Regularly signed and enrolled, though it be ever so erroneous or mistaken: So that if a Re-hearing be had at all, it is, for the most part, before the Party or Parties that made the supposed mistaken Decree: And though it is not to be denied, but a Man may altar his Opinion upon a Re-hearing; yet it was once the Opinion of the Commons in Parliament, as appears on the Roll, 21 E. 3. Nu. 26. (according to Cotten's Abridgement,) That it is not likely a Man will have a good Conceit against his own Opinion; and that was given as a Reason by the Commons in their Petition, That erroneous Judgements in the Exchequer should be Redressed in the King's Bench, the Court of Exchequer before that time making as if they would rectify their own Errors: And the King's Answer to that Petition was, That he would grant Commissions to examine and correct the Errors of the Exchequer: but that did not satisfy; and after several attempts it was Enacted, 31 E 3. cap. 12. That the Chancellor and Treasurer calling such Judges and Sages of the Law to their assistance as they should think fit should upon Complaint correct the Errors of the Exchequer, and that was without Limitation, as to Judgements given before the Statute as well as after, though a Writ of Error lay than from Exchequer Judgements to Parliament.  
As to Bills of Review in former time, 
As to Bills of Review.  (as is said in rolls Abridgement, tit. Chancery, fo. 182.) if a Chancellor Erred in Conscience upon the Matter of Fact proved before him; that is, as I take it, if he made a Decree contrary to the Proofs in the Cause, or without good Proofs, there might have been a Review upon that Matter of Fact, because there needed no new Examinations; but it might be re-viewed upon the first Depositions, and that was usual, as is there said: and I have seen some Precedents, wherein the Deposieions taken in the Original Cause, have been Read at the Hearing upon the Bill of Review: But since that the Case is altered, and the Depositions in the Original Cause have been denied to be looked into upon a Bill of Review; and I think the Practice is so still, unless it is very lately altered: So that if a Decree be made ever so contrary to the Proofs in the Cause or without any Proofs, there's no remedy against such a Decree by Bill of Review, all Bills of Review being of late confined and restrained to Error in Law, as they call it, appearing on the Face of the Decree as it is drawn up without regarding the Proofs: and besides, before a Bill of Review is admitted to be brought, the Decree must be performed, if it be for the Payment of Money, unless the Party that is to pay it will swear he is not able to pay it, or tender himself to Prison, till the Cause on the Review be determined: and the bringing of a Bill of Review is very chargeable to the Client, for it must recite all the first Bill; and the Answer and Plead, and all the Orders in the Cause,  

The First Proposal.  For which Reasons, amongst others that might be named, I humbly propose, First, That instead of Rehearing and Bills of Review in the same Court where the supposed mistaken Decree was made, that if a Man shall think himself injured by any Decree or Decretal Order hereafter to be made, or wherein the Proofs and Merits of the Cause have been denied to be looked into, or considered on a Bill of Review the Judges of the King's Bench and Common-Pleas, or such other People as the Parliament shall think fit may re-hear such Cause once and no more, upon the full Merits and Depositions, notwithstanding any enrolment of such Decree, or any Proceed thereupon had.  

The Second Proposal.  And forasmuch as it gives a great Opportunity for Revenge, and is a great Encouragement to vexatious Men to Commence causeless Suits, or Suits upon slight Grounds in Equity, and to withstand just Demands by all the Delays and Devices imaginable that Courts of Equity do not always give unto the Party prevailing his reasonable and necessary Costs, and oftentimes they have no Costs at all; so that they often pay dear for their Equity that have it: Whereas, as I humbly conceive, if it were a certain standing Rule, That he that is in the Wrong in a Cause in Equity, should pay the other Party his full, reasonable and necessary Costs, Men would be very careful upon what Grounds they would Commence Suits in Equity, and never do it but when they thought they had good Cause; and in all Cases both sides would be desirous to come to a speedy Determination, for tear of the great Costs that a tedious Suit might occasion, when they know it will all fall on the one or the other in the End: And therefore I humbly propose further, That it be Enacted, that the Party in the Wrong in all Suits in Equity, shall pay the other side his full, reasonable and necessary Costs, without which he could not well prosecute or defend the Suit.  

The Third Proposal.  And whereas it is one of the most useful things amongst the Proceed of Courts of Equity, to compel Discovery by Answers upon Oath of Matters concealed; and for that it hath, and may often hap, that by means of such Concealment, the Right to an Estate may seem to be in the Party that so conceals; and in such Cases it is usual for the Party that hath a seeming Right, during such concealment to Exhibit a Bill in a Court of Equity, to compel him that hath the real, but concealed and undiscovered Right, to release to the Party concealing; and in such Cases it is usual for him against whom such Bill is Exhibited, to Exhibit a Cross Bill for a discovery: And if he that so conceals, puts in an imperfect, or a shifting evasive Answer, and by the negligence or fraud of an Agent or Solicitor Exceptions are not taken to such Answer, the concealed Matter by that means lies undiscovered until after a Decree passeth otherwise than it might or should have done, if the concealed Matter had been discovered; in such Cases (according to the Opinion of some Judges in Equity) the Party that had right to such discovery hath no remedy either by a new Bill or otherwise, to compel the Party guilty of such Concealment, and answering so imperfectly, to make a perfect Answer, or to be relieved against such Concealment; which if it were so, since most Men in such Matters depend upon Agents and Solicitors: It may be in many Cases in the Power of a Solicitor, by Confederating against his Client, and not taking Exceptions to such insufficient Answers, to cell away any Man's Right, which may be a thing of general Mischief: Wherhfore I humbly propose further, that it may be declared by Act of Parliament, That if any person is or shall be aggrieved by such imperfect Answer or Concealment, that he may be Relieved in Courts of Equity in such Cases by a new Bill, notwithstanding any former Decree or forced Obedience thereto.  
I found it Objected, That if Remedy aught to be provided in the Cases abovementioned, such Remedy aught to extend but to Decrees hereafter to be made, and not to Decrees already made.  
To which I Answer, 
Whether the Remedy proposed aught to extend to any passed Decrees.  That I conceive it as reasonable to provide Remedy by Act of Parliament against Injuries passed, as to come, especially in Cases where an old Law or Course of Justice or Equity hath been denied; and if it was a regular Course for a Subject injured by a Decree in Chancery, or other Court of Equity; to have the Proofs and Merits of the Original Cause looked into upon a Bill of Review, as it hath formerly been practised, and that hath been denied to any, I humbly conceive it very consistent with Equity and Justice, that such should be provided for by Act of Parliament.  
The Statute of 31 E. 3 cap. 12. that gives the Chancellor and Treasurer, and others therein named, Power to rectify erroneous Judgements in the Exchequer, though it was a remedy purely new, and not to revive an old remedy, or instead of an old remedy; yet the remedy provided by that Statute extends to all Judgements in the Exchequer, as well such as were before the Statute as after, and that without any limitation of time; and I cannot see any reason that passed mistaken Decrees in Courts of Equity should be more favoured than past mistaken Judgements in Courts of Law; and I hope they shall not.  
By the Year-Book, 27 H. 8 fo. 15. it is set down for a Rule, That a Decree in Chancery shall not bind the Right, it being but an Order made by the Court for the present, which, upon good Cause shown, may be altered: Of which Rule it is observable, that it is without Limitation of time, when ever good Cause may be shown, a mistaken Decree aught to be altered.  
A great Argument used against following this Old Rule is, That if a Decree in Equity were not to be final, there would be no end of Suits: But though a Man may try his Title, as often as he will, by Ejectment at Common Law; yet we see Controversies at Law have an End; and if there were no hopes that Erroneous Decrees in Equity should be final, there would not be much Struggling to obtain them; and than, perhaps, there would not be so many Suits as there are.