Volume 25, Page 229 View pdf image (33K) |
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Proceedings of the Council of Maryland, 1707. 229
not be granted by any Court but the Chancery in Vacation Lib. C. B. time and by the other Courts in Terme time and on a Motion for the Same Shewing the reasons to the Court why it should be granted. 2dly That an habeas Corpus grounded on said Statute may be returnable Imediately before the Judge or Judges that grant the same in Vacation time and such Judge or Judges may Judge of the Returne of such Writt and thereon bayle or remand the party to prison at discretion But an habeas Corpus at the Comon Law which was in use before the said Statute and still is to be returned to the Court in Terme time that all the Judges of such Court and not one only may Judge of such Returne and according thereto bayle or remand the party as to them it shall seem meet Not only by Approved English Authoritys former practice and presidents of Yor predessrs in this province and p. 98 the failure of Justice (if otherwise) on Bill petition or Suppli- cavit to Yor Exncy in Chancery by the wife on such reasons as to you it shall seem meet may allow her maintenance untill Cohabitation
First by approved English Authoritys. Your Exncys power in the Court of Chancery is Extraordi nary and unlimitted in Cases of Equity bound to no rules certain thô unto discretion and is the fountain by which Jus tice is conveyed to the people on their necessitys and Com- plaints, i Hugh 398, and if any person supposes a wrong by the Decree of the Court of Chancery his only way is to peti tion the King in Parliament as in the Case of Sr Moyle Finch and the Earle of Worcester. That as Yor Excellencys power being so great and so much of Equity in the present Case Yor Exncys Jurisdiction and Authority in allowing Seperate maintenance seems to me uncontroulable knowing no reason why Yor EXnCY may not in the Court of Chancery here by decree force such allowance as well as the Court of Chancery in England which Tothill fol: 93: 94: 97 treating of the Court of Chanry in England says the wife may alone sue the husbd therein and Force him to give her Alymony and tht the Chancellr took Cognizance of such Case lately and plainly appears in the Case between Whorewood and whorewood Chan Repts 20: Vol: pag: and to go to the Iudgmt of the Iudges of the Comon Law in the Case of Manby and Scott in Sidfn 124, most of the Iudges of England were of opinion that the wife was not destitute of remedy in having necessarys for her maintenance of her husband, but might have it by the Comon Law of England in Chancery by Suplicavit as well as by the Comon Law.
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Volume 25, Page 229 View pdf image (33K) |
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