Gorges Edmond Howard.

A treatise of the Exchequer and revenue of Ireland, Volume 2 online

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* In the cafe of Qnin. v. Widenham, in this court. Hill i773» a motion was made
on behalf of the plaintifiF in the a€tion that a <v€nditioni exponas (hould ifliue to the
flieriffs of the city of Limerick to fell fome terms for years, which the defendant
after outlawry was found by inquifition to be pofleiTed of. But the motion was re-
fufed. And it was faid by the deputy fecond remembrancer, which the court ac-
quiefced in, that fuch writ did not ifTue here» but in cafe of goods. He likewife
infifted on what feemed to him to be more material, that the office would lofe its
profits upon the cuftodiam^ injunction, ^c*

f See Bunb. 71. where the court refufed to order a venditwni exponast where a
term was found upon an inquifition taken upon an extent ; but granted an injun^on
to put the Ciown into poffef&on«


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feeraed to be the unanimous opinion of the court, not to

permit the mortgagee to traverfe the inquifition j but the

matter was compromifed, before the court determined it,

' However this feems to be the general * ufage of the courts

A bill was brought to be relieved againft a judgment in Plea of a pur-
ejcdment, which was obtained by virtue of a purchafe f^clffaic d^^
under a venditioni exponas of a term of years, upon an out- lowed.
lawry of the plaintiff, who infifted his title was a fee, and
not a term for years ; to which the defendant pleaded the

* However eftablifhed ibts pradicp may be, it feeoas sot clearly reconcileable
with the principles of law or juftice. The determination in the cafe of the King
V. Baden, Sho. Ca Pari, (fo much relied on) by which a prior judgment creditor is
f oftponed to a iiibrequeBC one, who obtains a cuftodiam of thetronufori lands, feems
10 be a fufiictent ftreech of (he prero^tive in favour of the party. But the cafe of
a mortgagee is much ftronger. A conufee of a judgment has no intereft in the land
until he fues an elegit, wherefls the mortgagee has a legal and beneficial eftate, natfl
redemption. Why then the court ihould aflume a difcretioeary, if not an arbitrary
power, in precluding a fair creditor from exercifing that right which every fubjed
has by law, of traverfiog or pleading to a falfe office found for the Crowa, by
which his property is affe£ted{ why a bond, or even fimple coatrad creditor, who
lends his money upon the general credit of the borrower, &a11 by a partial preference
be fuffered to tru(i the mortgagee out of the Engle pledge, upon which he relied for
his fecurity, or why that prerogative of the Crown, which (hould never be made
ufe of in aid of the fubjed, but for the advancement of juftice, (hall in this indance
be perverted to the defeating the end of juftioe, feeais to require ftroager reafons,
than are ufuallynirged in fupport of the pra^ice^ a pradice whioh feems to involve
thofe abfurdities, that the pledge of the mortgagee is not perfedly fecure until the
death of the mortgagor i and that the mortgagee is to take care not only that the
mortgaged lands are free from incumbrances at the time of his advancing his money,
but likewife that the mortgagor contrad no debt afterwards. As to the diftindtion
between a mortgagee in gnd out of pofleffion, it feems to be an uielefs one. Its
well known no mortgagee chu(es to enter iato poCeffion^ otherwife tbin by receiving
bis intereft«

But ^hat appears to be no fmsll additional grtevasoe, is that thoie determinations x

are made in a fuaimary manner Upoa motioa,"wbcreby the party aggrieved is deprived
of any redrefs by writ of errror. In the cafe of the King v. Baden the party had
Ijbwty to plead and the matter was determined upon demurrer, and a writ of error
was brou^^t in the Exchequer chamber.


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40 Of the exchequer and

purchafc under the outlawry 5,. and it waa allowed. Gilb.
rep. 184.

Upon an out- A. who wa« tenant to be B. being outlawed at tbe fuit
iS^l^^r ^^^» ^^^ goods were feized by procefs on the outlawry, but
/!/« the land- ftili remained in the fherifPs hands j it was nuwed in the
as'toa/tt^'a Exchequer, upon the flat. 8 Ann, c. 14. that the landlord
Kflt. might be fatisfied one year in arrear, out of the money in

the fheriflf's hands; and the court ordered it accordingly;

becaufe the capias utlagatum was in this cafe to be conh-

dered only as a -private execution, and only auxiliary to

the party.. Bunb. 1 94.

Liberty given A. was outlawcd^ and by an inquifition taken thereon,,
inquifition^/" ^^ waft found that he was poffeffed of a term for years in
after a wn- jure uxorij ; after his deceafe a venditioni exponas iffued,
and the term ' ^nd the term was fold. The widow moved that (he might
^^^ be at liberty to plead to the inquifition, which was granted ^

although it was obje£led on behalf of H. the purchafer,,
that he had purchafed under the fandion of the court, had'
fince brought an ejedlment which wa« defended by her^
that fbe had brought a writ of error, and alfo a bill in.
Chancery relating to this matter: but, per curiam^ though
ihe has been wrong advifed, we will not deprive her of the
liberty of pleading no w« Bunb. 220.

Where landi lathe cafc of Tyrrcll v. Reynolds, in this court, Mich.

Vujifd^a^ "* ^759> it was determined, that whexe lands are mcu/hdiam^

cjeamentcan- a party (hall not bring an ejedlment againft them, without

withouM^ve l^ave of the court of Exchequer ^ and one John Taylor,

ot the court, who in this cafe had brought fuch an eje6lment, was not

only ordered not to difturb the plaintiff the cuftodec, but

to pay him all the cofts of his applications upon thisocca-

fion, or an attachment to iffue againft him. And on this


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motion tha c»ieof;Thorqton and Nudigal^^ in this coUrt^
Mich* 1747* was citeis-in which Cafe, it apjjcariftg that
Mti. DaiAer, the perfioavirho iippiicd for IcifTe to bring the
ejectment, had a fnortgage of part df the iaoils in eu/i^ism^
prior to the judgm^t and the patlawry on whit:h*tho
cuftodiam was obtained ; as alfo a mortgage of others of tb«
lands therein, fubfequent to the judgment ; the order was
oonfined tolhe lands in the prior iBortgagc only;

And note, wden fuch application is made to the cotirt Aid \t m«ft
pf Exchaiuer, for leave to bring an ejcament, it muft be -J^t^^JiS' ^
brought in that court.

^^VTiere the lands of a leftee are granted in cujlodiam^ Under tcnanu
and his tenants pay their rents to the head landlord, they ^w^' w^^^'
ftall not be attached for not paying them to the cuftodec paytbetrrcnti
upon the order on the injunction; becaufe the debt of tho hJ^idiord. -
letfce ought not to deprive the landlord of his rent. So
agreed by the court in the ca(e of Carc&ichael v« Stuart^

Ny> 1773-

Id the Cafe of Tuite againft Tuite, in this court, July 15, Temnti mty
1^773, a motion was made to attach tenants for paying p*7*Jo«trc&^
fents to a joihtiire widow, by fetflement long prior to the
cujiodiam and injundlion, who had been alfo in poffeffioa
by receipt of the rents ^ but the court refufed it with cofts.

A. was oirtlawed at the fiait of anothet perfon, and lands Diffeifce mtj
in his poffeflion extended \ a third perfon that claimed a ^?^^j^^|fj
title to them brought an ejedment for them, and pleaded notwithftand-
fo the ittquifitiott ; arid an injunaiort was prayed for the |^|,;J^ "^****
ILiag to ftay proceedings at law ; but it was denied ; be-
caufe, although a ptrfbd outlawed cannot after the extent
|j*e*ent or avoid the King's title by alienation ; yet the

Vol. II. G outlawry

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outlawry gives, no fuch privilege to the poffefGbn of a dif*
fcifor, bi!it that thediHeifee may enter ^nd bring his ejc£l-
ment ; for by the outlawry the KtAg has a title onty to the
profits, and no tntereft in the land. But it was ordered
that the plea to the inquifition ihould be tried firft.
Hard. 176.

Rule, loth Ordered b^ the court, that tn- all outlawries in trefpafV

Jul/, 1685. as much rent be referved to his Majefty as the King's filver
IBall amount unto, if the fame (hall be made appear to
. have been for debt, in regard the King^s Majefty would
be defrauded of the King's filver. And where the out-
lawry is really for trefpafs, then his Majefty to have the
mcfne profits until fuch otitlawry be referved ♦•

Kute, iftFcK A complaint being made to the court this day, that Roth
17* !• Jones, Efq; having by a former order of this court, taken on

the chief remembrancer's fide, licence to bring an ejcd-
merit againft a cUftodce, brought and commenced the faid
ejedment out of this court, contrary to the intentibn' and
anticnt ufage thereof; it is thereupon this day ordered, by
the court, that in all cafes where any perfon or perfon*
fliall at any time hereafter have any leave or licence to.
bring or commence any fuit in ejedlment againft any cuf-
todee or cuftodees of the Crown, for recovery of any lands^
tenements, or other things granted in cujlodiam to him, or
them, fuch ejedlment iball be brought or commenced in

* This rule feems not to be itty fateUigrbly penned *, bowever^ the confifint courfk
•ow is to TtCtiyt five fhillings on ail cuftodiamt for debt, and ten (Killings where it is
for trefpafs, and the damages uncertain ; though, upon the firiftcll fearUiy I can*
AOt find aoj tule nade for that purpoic fiace th« al>oire r«lc.


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thifi cdurt, and no where elfe ; and that this order be, and
is hereby made a fettled and fianding rule of this court.

The coiart taking into tbeir oonfideration the many R«^» »7^
difficulties on tenants, by reaibn of fcveral orders on '' '^
different cuji^diamf of the fame lands and premiiTea,
requiring the tenants to pay their rents to fcveral diffc*
rent cuftodees; it is ordered, that far the' future, no
order be made on the tenants to pay their rents to a fubfe-^
quent cuftodee, without notice firft given to the prior cuf-
todee or oaiiodces of the fame prcmifles.

It was this day oixJored by the. court, that. *ipon the R«i<v m*
^renewal of cujiodiams and iB}un6tions which became ^* *^^
void on the demife of his late MajeAy, all oiders
obtained by the cufiodees on their refpe&ive firft cufiodiams
-do £tand revived:; and that the fame be infected in the
ordera made on the returns of the new injundion*, for the
.tenants to pay their rents and arrears to the xefpedive

- It was ordered by the court, that for the ftiture, upon aU Rule, t^tii
-applications made by coianfel 6n affidavit for fettLng lands •'*"* ''^*'
either in the defendant's own poiTcffion, or lands out of
Icafe, the order taken or >conceived fball not be, in the
-firft inftance, (as has beea heretofore pra6lifed) a {peremp-
tory order, but (hall be a conditional order \ and ferved
^upon the party in the like manner that other conditional
orders ufually are«

Ordered by the court, that for the future, no cuftodiam R«ic, 2^x\
fhairbe renewed upon a hare alTertion or allegation that J*^^»*77*.
the plaintiff is dead; but that it (hall appear to the court
and the officer by a full and fufficient affidavit, fworn and

G z filed

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44 Of the EXCHECIUER asi>^

filed iQ the proper office, that the plaintiff is dead 5 and
either died inteftate, or made a will; and that foch affidavit
fhall afcertain the executor or executors, adminiftrator or
adminiftrators, to fuch plaintiff, before a«y eujhdiam fliall
be renewed^ in any cafe where fuch plaintiff (ball bappeft
to die.

Ontbedemifc On the dcmife of iiis.Ma^y* King^ George the ltd, a
^^i ^^u/Miams ^^^' BXQ^Q if the cuftodiatw wbicii had been granted during
muftberc- his reign^ and the injua(5)ions which iiTued tbeieon, and
were fubiifting at the tin:^e of his deatb> were to be ics-
newed, cither in the cafe of the Crown, or on outlawries
profecuted by fuh)e^ in the King's name ia ctTii cafes.
And the court of Exchequer were unanimoufly of optnioa>
that in both cafes, both the cuftodiams and injwidtoflis
mufl: be renewed. Mr. Prat, tbe Attorney gencc:al cf
England, upon a caic ftated by order oi the ooco^-
milfioners of the revenue oa thefe paiats, was aHb
of the fame opinion. The reaibns givi^ veK, that
as the cujiadiam is a grant during his Majefiy'a pbafuce
the eftate determined by the demife of the late King \
and that it is abiblutely neccflary to reoei^ the (r^fto^
diams^ &c. That the iajuoi^<^ which recites the wjr
todiam^ and is entirely fixuaded on it, and is no more than
an order to tbe iheriff to pcut the cuAodee into the actual
poiTeffion of the lands granted in cuftodUni^ \% alfo abfo-
lutely determined, and muft be renewed;, and that the
fame are not continued, by any words in the Engli/h fiat.
I and 2 Ann, c. 8. For after the lands are takea in axo-
cution, the fuit and all proceedings therein (to which only
the aft relates) are at an end; and fuch execution was not
vacated at common law by the King's dcmife,


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The Attorney geucral of England, in his opinion, fays, Botthcfeirure

that thcfcifurc of the lands is not any ways impeached or byno^mwnV'

^fturbed by the determinatioQ of the£b grams^ which are impeached or

in truth onfy a manner of coltedmg the rents by farming ^*^"'^^^-
the lanid$ to % tcnaatt ioilead of leaving them in the
Acnff^s bamde.

He^ waa alfo pf ppiwoi>i. that thefe Quficdiams would con- And the hiF-
♦inu^femonth«^ unWrfowicr.xcaewcd, by a« equitable ^"^^^jj*^
conftrudion of the faid flatute of Qjieeti Aon; and the months by an
.j;atiier a» tiwrt hw »lway^ Uwi the pra^ice in ;Englandt in ffilJIfof'*'
the cafe of committees of lunaticka eftatea^ who hoidUneii the (lat. of
cuftqdiams by gjrant during; the King's plc^fure. ^

HtaWct faid, if there had* been more <!onb€ in this cafcv

*fce Ihourdfhrhk the pra^Jice^ w'hich has^ been uniform (as

was certified by the proper ofiicers of the court) fince the

death of the Qjiccn, in renewing the cujiodiams^ would be


* It were much to be wiAed that thii procefs of outlawry (with its train of cujh^
iiafHi) which in fome cafes is an ufeful and neceiTary one, were not fo often perverted
to the parpofes of oppreffion and injoftico^ It was originally intended as a puniHi*
nent only for a contumacious, refradory defendant, who paying no regard to the
procefs of the law, juftly forfeits the protedion of it. And therefore the legiflature 1 1 j^^ \^ 0^
bath cautioufly provided, that no writ of exigent Oiall iifue without making out a
proclamation, teded and returnable as the exigent, direSed to the ibcrlff of the
county where the defendant dwells, and containing the effed of the a£tion. And the
Iberiff is required to make three proclamations, viz. one in open court, another at
<^]B|iiioi»Uqiarter ieflions, and one other, at lead one month before the quinto
9xa3us^ at or near the door of the church, or, if there be no church, in the church*
yard of that town or parifli where the defendant dwells, upon a Sunday immediately 5 Ann. 6
after divine fervice. And it is further provided, that no quinto exaSui be returned
by the coroner upon the exigent, until it appear to him by affidavit of two aediUe
witnefles, that fuch proclamations have been made ; which affidavit is to be returned
to the clerk of the outlawries to be filed ; and thut the clerk of the outlawries (hall
not iflue any capias utiagatum upon fuch exigent till fucb affidavit be filed with him»


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46 Op THE E X C H E <1U E R ani>, (Sc.

But thefe ftlutary and neceffkr/ profifiont are daily eladed and evaded tn thit ling*
dom i the proclamations being either hot itoade, dr made in Ibftfivate « manner that
the defendant has no manner of notice of the proceeding.

Then upon the cmpias utUgatum^ which iflues upon the return of the exigent and
proclamation* an inquiGtion is holden, as fecretlj an(l dandeftinely as the proclama-
tions were made. A bailiff*, or fome other creature of the fubflieriflF's or the plain*
tiff's, is fworn to the eftate or lands of the defendant, opon his belief only ; and
thereupon a finding and return made to the court of Common p|^s,.wlMth is eftreated
into the court of Exchequer ; without any notice whatfoever to mortgagees, landlords,
jointreflei, or other innocent incumbrancers i who, notwithftanding, are, by this
feries of fecret tranfa6lions, with which they ha?e nothing to do, driven to the ne«
ceHity of applying to the court, upon every dccafion, for the recovery of their juft
demands i fometimes unfucccfsfully : but at bcft at %n expenee which they can never
jecov^r. And all thb under the fi^ion of the prerogative, where the rights of the
Crowii are in no fort in queftion, and where h is only interpofed in aid of one
creditor to the prejudice of others.

In Aort, the whole proceedbg is fo exceedingly vexatious and oppreflive, as well

to the debtor hhnfelf as to third perfons, as to cry out loudly for the tnterpofition of

^ |he legiflature, if the redrefs of a puUick mifchief fliould be deemed a Uore national

objed than the diminution of the fees of ceruin oiEcerv to y^bom t compenfalioa

feight bf made» if it ihould be thought neccflary.


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( 47 )

A P P E N D I X.;

No. I.

The OATHS of; the, OFFICERS c>f the
Gou>RT of ExcHEQ^UER and fome others, taken
from the red Book of the Exchequer.

, I .Oati|[ o( the Lord, High Tr^asi^i^er.

YbU Ihall Ywcar that you' Ih^U truly and faitUftlly
ferve our Sovereign Lord the King's Majefty, in
the oifHce of Lprd High Treafurer of this realm of Ireland;
and lawfully and rightly £hall you 4o to all-pcbplc, as well
tinto poor as unto richt that have to do ; afore you,^ by
tirtueW the faid office ; and that neither for higlinef? of
riches, nor for hate, ne for eftate of any perfon, nor for
benefit, gift, ne promife, of any perfon that may be made
unto you, ne by art, nor engine, the right of the. King,
nor of none other, you (hall not left norrefpite, contrary
fo the laws of this realm/" The King's debts you fhall not
put in refpite, where they may be levied, but with the
advice of this court. And the King's bufinefs you (hall
fpeed and fu^rther afore all others. You (hall nothing take
of any perfon to' do Wrong, or to delay the right, or for
delivery of the people, that (hall have to do before you;
and there, wh6reyou may underftand [wrong or prejudice
to be done to the King, you ihall put all your power and
diligence to redrcfs it. And if you may^not do it, you


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4« A P P E N p I X.

Nfj^^ feati tcif it to the King's dqnity of this realm, for the.
V'"'y'>*^ time being. And the King's counciU in all things apper-
taining to ihe fakl offic«^ y#u (baU ^^^y ke^pi So j^elp
yQ^ God, 1*1 Jefus Chrid* Am^n^-

Oath of the Chancellor of the Exchequer.

y60 IM ftvear that yoti fliall trdy Wfkithfiiily fervte
«iiif St>vpr&ffi Lord the King's Majefty^ in the offica of
Chancellor of this ^is HigbDefs^s court of EKche^^uer;
and rightly (hall you do unto all perfons, as well unto the
poor as to the rich ; and that neither for highnefs of
riches, neft for Hate, ne ibr efiate of any perfoii, ne for
gif4:^ benefit^ nor promife that^ ihall be nxade imto you,
you ihall sot let nor delay the right of any man that fhall
havfc to do before you, by virtue of your faid oflice,
The Kihg^s fcal of this court incident to your laid office
you Aafr earefuHy and l^ly keep; arid no procclTest
«rrits or other things, fhall you therewith leal, but iqcli
as ihatt be warranted by order, judgment or diredlion ot
the court. Lord Tseafurer, or chief Baron^ or in his
abience of fbmc other baron of this court, except original
proceffes. The K'ing^s cauies you (hall (^eed before any.
other. And^ where you ihall underiland wrong or prcju-!
die? to be cjorxe to the King„ ypu ihall put to your power!
and diligence to redrefs. And, where you may not, you
/hall teU it to the Lord Treafurer, or to the King^a
Majeifty's deputy of this realm, for the time being. The
King,^s council in all things appertaining to your faid
office you fhalt truly keep. And rightly and duly you
fhall do, in all things that belongeth to you to do by
virtue of your faid office. So help you God in Jefu»


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Oath of the Barons*

YE (hall fwear, that well and truly you fhall fcrve the
King our Sovereign Lord in the office of Baron of this
Exchequer; and lawfully ye (hall charge and difcharge
the people that have to account before you. And right
ye (hall do to all people, as well to the poor as to the
rich. And that for highnefs of riches, neither for hatc»
ne for the eftate of any perfon, for benefir, gift, ne pro-
mi(e of any perfon that n>ay be made to you^ or^fhall be
made to yout ne by art nor engine, the right of the King,
nor of none other ye (hall not difturbe,/ ne refpite^ con-
trary to the laws of the land. And the King's debts you
fhall not put in refpite there where they may be goodly
levied. And the King's bufinefs you (ball fpeed afore
all other. And that for gift, wages, nor benefit ye fhall
not conceal the King's profit and advantage, in advantage
of others, nor of yourfelf. And ye (hall nothing take of
any perfon, for to do wrong or delay the right, or for
delivery or delay of the people, that have to do afore
you; but in all that you may you (ball deliver them.
And there where you may underftand wrong or prejudice
to be done to the King, ye (hall put all your power and
diligence to redrefs it. And if you may not you (hall
tell it to the King's Majefty's deputy of this realm of
Ireland for the time being. And the King's counfel ye
ihall keep in all things. So God ye help and all Saints^,
and the Holy Evangelifts.

Vol. II. H Oath

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No. I.


Oath of the Chief or Kind's Remembrancer,

YE fhall fwcar that yc fhall well and truly behave
yourfclf in the office of the King's Majcfty's Remem-
brancer of this his Exchequer in Ireland, during the time
ye fhall occupy the fame. Ye (hall fet forth, from time
to time, all ordinary proceffes upon all fuch records as fhall
remain in your office for the King's profit. And the fame
records ye fhall fafely keep to your power, during all
fuch time as ye fhall be remembrancer in this faid court of
Exchequer, And all other things that appertaineth to
your faid office you fhall do, or caufe to be done, from
time to time, according to your proper knowledge and
difcretion. And further I A. B. &c.

Oath of the Treasurer's or fecond Remembrancer
of the Court of Excheq^uer.

YOU fhall fwear that yon fhall well and tru^y behave
yourfelf in the office of the Treafurer's Remembrancei:
and fecond remembrancer of this his Ma}efty*s Exchequer,
/during the time that you fhall occupy the faid office and
place. You fhall duly and truly fet forth, from time to
tfme, and at all times, all accufltomed proceffes, ordinary
or extraordinary, upon all fuch records as fhall remain
in your faid office, for the King's profit and advantage.
And the fame records you fhall fafely and carefully and
faithfully keep, to your power, during all fuch time as
you fhall remain in the faid office. You (hall rightly and
duly charge every accomptans and all other perfbn* that
have tp do wjth you, for any debt or duty due to the


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King's Majcfty, to his Highnefs's beft benefit or profit. ,_^J;^
And no difchargc (hall you make unto any man, but
according to the due and ordinary courfe of this court, or
by order or diredion of the barons, or fome of ihem. And
that neither for riches, nor for hate, or favor, nc for eftate
of any perfon, nor for benefit, gift, nor promife of any
peVfon, that (hall be made you, ne by art nor engine, the
King*s right you (hall not conceal nor dimini(h. And
nothing (hall you take of any perfon, whereby any wrong
or prejudice may be done to the King. And all things^
that appertain to you to do, by virtue of your faid office,
you (hall rightly and truly do or caufe to be done, from?
time to time, to the utmoft of your power, knowledge^
fkill and difcrction* So help you God in Jcfus Chrift.

Oath of the Auditor of the Exchequer.

YE (hall fwear that you (hall truly fcrve the King our
Sovereign Lord in the office of Auditor of this Exchequer

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