Journal of the House of Lords: Volume 7, 1644. Originally published by His Majesty's Stationery Office, London, 1767-1830.
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DIE Jovis, 10 die Julii.
PRAYERS, by Mr. Corbett.
Ds. Grey de Warke, Speaker.
E. of Thanet's Assessment.
Ordered, That the Business of the Earl of Thanett shall be respited till To-morrow; and then his Counsel is to be heard, before any Determination be made in his Business.
Message to the H. C. for Committees to meet, to receive the French Minister;
A Message was sent to the House of Commons, by Sir Edward Leech and Mr. Page:
To let them know, that whereas To-morrow is appointed for the Committee of Foreign Affairs to give Audience to the French Agent, he desires it be on Saturday next, in the Afternoon; which this House likes of, and desire their Concurrence, that their Committee may meet accordingly.
and about the following Particulars.
2. To put them in Mind of the Petition of Hutchings.
3. To deliver to them the Petition of Doctor Bastwicke, concerning Colonel Huddleston.
4. To desire their Concurrence, in an Ordinance for making Mr. Parker Minister (fn. 1).
E. of Suffolk, versus the Executors of Sir Robert Hitcham.
This Day being appointed to hear the Cause of the Earl of Suffolke, to be relieved against the undue gaining of Two Recoveries in his Minority, and covenous Conveyances, obtained by Sir Rob't Hitcham, for the Manors of Framlingham and Saxted, in the County of Suffolke;
And (fn. 2) the Defendants, instead of making Answer to the Earl's Petition, presented to this House some Exceptions, by Way of Demurrer; alledging the Statute of 4to H. IV. Cap. 23.
The said Exceptions were read, as follow.
(Here enter them.)
And afterwards the Counsel withdrew, and [ (fn. 2) the House] took into Consideration the Business.
And after Debate;
It is Ordered, That the Judges shall consider of the aforesaid Statute, and deliver their Opinions to this (fn. 3) House on Monday next.
Message from the H. C. to appoint Committees to reside with the Scots Army;
A Message was brought from the House of Commons, by Mr. Baynton:
To desire their Lordships to join, in appointing a Committee, to be sent from both Houses, to reside with the Scotts Army, according to the Treaty.
and about Instructions for the Commissioners going to Scotland.
2. To acquaint their Lordships, that they have named Four of their Committee to be of the Quorum, to meet, to draw up Instructions, to be given to the Commissioners that are to go into Scotland; and to desire their Lordships would appoint the Quorum for the Members of this House that are of that Committee.
Ordered, That this House reduces the Quorum to Two Lords.
Commissioners to reside with the Scots Army.
Ordered, That this (fn. 4) House nominates and appoints the Earl of Stamford and the Lord Mountague, to be Commissioners, to reside with the Scotts Army.
The Answer returned was:
That this House hath appointed and named Two Lords, to reside with the Scotch Army; and have reduced the Quorum to Two Lords.
Message from the H. C. with an Ordinance.
A Message was brought from the House of Commons, by Mr. Harbottle Grimston:
To desire Concurrence in an Ordinance for disbursing Monies out of the Excise, for the raising of Five Hundred Horse, for the associated Counties of Essex, Norff. &c. (Here enter it.)
Read, and Agreed to.
The Answer returned:
That this House agrees to the Ordinance now brought up.
Ordered, That this House will hear the Cause bebetween Major Temple and Ludlow; at which Time the Parties and the Serjeant is to attend.
Ordinance for raising 500 Horse, in the associated Counties of Essex, Suffolk, Norfolk, &c.
"Whereas Five Hundred Horse are forthwith to be raised, out of the Eastern Association, to be sent towards the Borders of the said Association; and whereas the Charge of the raising of the said Horse, and maintaining them Four Months, doth amount unto the Sum of Thirteen Thousand Pounds: It is this Day Ordered, by the Lords and Commons assembled in Parliament, That Thomas Foote Esquire, Alderman of the City of London, and the rest of the Commissioners of Excise and new Impost, do pay the said Sum of Thirteen Thousand Pounds unto Thomas Toll Esquire, One of the Aldermen of Lyn, in the County of Norff. or to such other Person or Persons as shall be nominated and appointed by the Committee of the Members of the House of Commons for the said Association, together with the Interest for the same after the Rate of Eight Pounds per Centum, for so long Time as the same, or any Part thereof, shall be forborn, as the same shall follow in Course after the Assignments that are now charged upon the said Excise and new Impost; and shall not, by any other Order or Ordinance of One or both Houses of Parliament, be debarred from satisfying and reimbursing themselves accordingly; and that the Commissioners of Excise shall pay the said Sum of Thirteen Thousand Pounds unto the said Thomas Toll, or to such other Person or Persons to be nominated as aforesaid, for the Use aforesaid, whose Receipt shall be their sufficient Discharge in this Behalf; and that the said Thomas Toll, or such other Person or Persons as shall be nominated as aforesaid, do pay the Money by him so received to such Persons of the several Counties of the said Association as the Standing Committee of the several Counties of that Association respectively, or any Five or more of them, under their Hands in Writing, shall nominate and appoint, according to the Proportions of Horse assessed and set upon the Counties of the said Association, by Order of both Houses of Parliament, bearing Date the 5th of July, 1645."
E. of Suffolk versus the Executors of Sir R. Hitcham.
"The Allegations and several Reasons of Richard Keable, Francis Bacon, Esquires, Two of the Feoffees of Sir Robert Hitcham, the Master and Fellows of Pembrooke Hall in Cambridge, and Edward Alpe, Robert Crane, and Richard Sheppard, Inhabitants of Farmlingham, Dobenham, and Coxall, on the Behalf of the Poor there; which they humbly present to the Consideration of the Right Honourable the Lords assembled in Parliament, wherefore the Right Honourable the Earl of Suff. should have no Relief for any the Matters contained in his Petition, and why the said Defendants should not make any other or further Answer to the Petition.
"These Defendants, in Obedience to your Lordships Order of the 23th of May Instant, for their Defence to the Matters contained in the said Petition, say, That forasmuch as it appears, in and by the said Earl of Suff's own shewing, that Theophilus late Earl of Suffolke, the Petitioner's Father, was Tenant for Life of the Lands and Tenements in the Petition mentioned, with a Remainder to the said now Earl of Suffolke and the Heirs Males of his Body, with divers Remainders over; and also that Two several Common Recoveries were had and suffered thereof, in the Court of Common Pleas, wherein the now Earl of Suff. was Vouchee, appearing by his Guardian and Prochein Amye; and that the same was also warranted by several Privy Seals, procured from the King's Majesty, to the Justices of the Court of Common Pleas; and that the Use of the said Premises were limited to the said Richard Keable, Francis Bacon, and other Trustees for Sir Robert Hitchingham, and their Heirs; and that One or more Writs of Error was brought in the Court of King's Bench, and some Proceedings therein; and for that the said Common Recoveries are the Common Assurances of the Kingdom, and are Judgements upon Record, and for that, by the Laws and Statutes of this Realm, no Judgement ought to be avoided by Petition to the King's Majesty, by Petition in Parliament, upon the Suggestion of any Person, but by a Writ of Error or Attaint, and not otherwise; and for that the said Sir Robert Hitcham and his Trustees were Purchasers of the said Premises for Fourteen Thousand Pounds, being a full and valuable Consideration; and forasmuch as the said Sir Robert Hitcham did, by his last Will and Testament, in Writing, in August, 15° Car. Regis, devise, amongst other Things, the Rents of his Lands, for the Payment of his Debts, for some certain Time; and afterwards did limit and appoint the said Manor and Castle of Farmlingham, with the Lands purchased as aforesaid, to the Masters and Fellows of Pembrooke Hall, in the University of Cambridge, and their Successors, in Trust, for the Building of several Workhouses and Almshouses for the Poor for several Towns in the Will mentioned, and a School-house, and the Maintenance of a Schoolmaster, and for the breeding up of young Children, and the binding of them Apprentices, and for divers other Charitable Uses in the Will expressed:
"And for that, if any Error were in the said Common Recoveries, the said Earl might take his legal Course, for the Reversal or Avoidance thereof; and if no Error be, nor any Way to avoid the same by the due Course of the Common Law, there is not, as these Defendants humbly conceive, any Equity for the said Earl to be relieved, against these Defendants, being the Trustees and Devisees of a Purchaser for a valuable Consideration; the rather for that the same Petition tends to overthrow and destroy several Charitable Uses, which would be very prejudicial to the said College, and the poor People of the several Parishes in the Will mentioned:
"And for that, if any Equity at all were for the said Petitioner to be relieved, the Courts of Equity are open, where the said Earl might have an ordinary Proceeding and all just Relief:
"And for that it is no Way proper, as these Defendants humbly conceive, for the said Earl to exhibit any Original Petition before your Lordships for Relief in Equity, before a Bill, or some other Proceedings, in some inferior Court of Justice; and some Injustice there done, or some Failure of Justice, for Want of Jurisdiction or otherwise:
"And for that no Injustice nor Irregularity is so much as charged or complained of in the said Courts of Common Pleas or King's Bench:
"And for that the Inheritance and Freehold of the Lands and Tenements in Question is endeavoured to be recovered against these Defendants, by a Petition before your Lordships; whereas, by the Laws and Statutes of this Realm, the Title thereof is properly triable, and to be determined, by the due Course of the Common Law, and not otherwise:
"For all these Causes, and for divers other apparent Defects in the said Petition for the Matter and Form thereof; these Defendants humbly conceive, your Lordships will not be pleased to give the said Earl of Suffolke any Relief; and, for the Reasons aforesaid, humbly demand your Lordships Judgement, whether they ought to make any other or further Answer; and are humble Petitioners to be dismissed.