DIE Jovis, 25 die Novembris.
Domini tam Spirituales quam Temporales præsentes
|His Royal Highness the Duke of Yorke.
Epus. Cov. et Litch.
|Sir Orlando Bridgman, Mil. et Bar. Ds. Custos Magni Sigilli.
Robertus Comes de Lyndsey, Magnus Camerarius Angliæ.
Jacobus Comes de Brecon, Senescallus Hospitii Domini Regis
Edwardus Comes de Manchester, Camerarius Hospitii, &c.
Vicecomes Say & Seale.
Vicecomes de Stafford.
|Ds. Arlington, One of the Principal Secretaries of State.
Ds. Berkley de Berkley.
Ds. Gerard de Brand.
Ds. Berkley de Strat.
Ds. Arundell de Trer.
The King and Squibb, in Error.
The Lord Keeper acquainted the House, "That the
Master of the Rolls was attending at the Door, to bring
in a Writ of Error, upon a Judgement given in the
Court of Chancery, in a Cause between Squibb and the
Hereupon the Master of the Rolls brought in the Original Record, and a Transcript thereof; and having laid
the same upon the Lord Keeper' Woolsack, he departed.
Report concerning the Title of E. of Banbury.
The Earl of Essex reported, "That the Committee for
Privileges, in Pursuance of the Order of this House,
have examined the Proceedings concerning the Earl of
"The Order consisted of Two Parts:
"First, why his Lordship's Name was left out of the
List of the Peers; touching which, the Lords Committees
have spoken with Sir Edward Walker, Principal King of
Arms, who delivered in the List; and he produced a
Book out of the Heralds Office, where it appears
that the last William Earl of Banbury died in the
Year 1632, and, having had Two Wives, left no
"Likewise he produced a Roll, being a Procedure of
the King and the Peers to Parliament in 1640, in
which List there is no Mention of the Earl of Banburie's Name among the Peers.
"Upon these Grounds, the said Sir Edward Walker
left out the Name of the Earl of Banbury in his List
given in to this House.
"The Second Part of the Order was, to present to
this House an Account of the former Proceedings in
this House concerning the Earl of Banbury. And the
Lords Committees find that, 6° Junii, 1661, the Earl
of Banbury acquainted this House, by Petition, that
he had not received a Writ of Summons to this Parliament; which Petition was referred to the Consideration of the Committee for Privileges.
"The 15th of the said June, the Committee reported
it to this House, as their Opinion, That Witnesses
might be examined in the Business, and that Mr. Attorney General might be heard on the Behalf of the
"The First of July after, the said Committee reported, That they thought fit that Counsel should be
heard at the Bar; which was ordered accordingly,
and Counsel was heard.
"The Tenth of July, the House re-committed the
Business to the Committee for Privileges. The 19th
of July, the Committee reported, That their Opinion
was, That the Earl of Banbury is, in the Eye of the
Law, Son of the late William Earl of Banbury; and
that the House should therefore advise the King to
send him a Writ to come to Parliament.
"That, the 9th Day of September following, a Bill
was read the First Time in this House, declaring Nicholas called Earl of Banbury to be illegitimate.
"And this being all the Proceedings which the
Committee finds concerning the Earl of Banbury, they leave the Business to the Consideration of the House."
Report concerning Harrison, a Member of H. C. answering in this House, to the Suit of Smithsby's Executors versus Jacob & al.
The Earl of Essex reported another Business from the
Committee for Privileges, referred to them by Order of
this House, dated the 23 of Nov'r Instant, directing
them to consider of the Manner and Way how Notice is
to be given to Richard Harrison Esquire, now a Member
of the House of Commons, that so he may answer to
the Petition of Appeal of Symon Middleton and others,
whereby there may be no Obstructions of Justice. He
acquainted the House, "That the Committee had perused some Precedents, though found none to come
to the very Case; as, that of the Duke of Bucks, 2°
Martii, 1625, where his Grace had an Intimation given
him by some Members of the House of Commons,
that there was a Complaint against him for staying of
a Ship which was freed by the Court of Admiralty;
and his Grace acquainting the House of Peers therewith, their Lordships left it to him to do therein what
he thought fit.
"Another Precedent was in 1641, in the Case of the
Lady Dyer, where Sir Robert Pye, a Member of the
House of Commons, was concerned; yet appeared
before the Committee for Petitions, and consented to
what was ordered, but it doth not appear by what
Way and Means he came."
The House taking this Business into Consideration, as
a Matter of great Concernment for the future, what to
do in Cases of this Nature, made this Order following:
"Whereas a Cause is depending before the Lords in
Parliament, by Way of Appeal from a Decree in
Chancery, upon the Petition of Symon Middleton
and others, wherein Richard Harrison Esquire, now
a Member of the House of Commons, is concerned:
It is ORDERED, by the Lords Spiritual and Temporal
in Parliament assembled, That Intimation be given to
the said Richard Harrison of the said Appeal; and
that he may be heard, to make such Defence as he
shall see Cause."
Grenvile versus Elwes.
Then the House resumed the Debate which was on
Monday last, concerning the Business between Bernard
Grenvile Esquire, and Jeremy Elwes Esquire.
And, after a serious Debate,
The Question being put, "Whether this Cause
be now properly before their Lordships, for
any further Directions to the Court of Chancery?"
It was Resolved in the Affirmative.
Protest against giving any Directions to the Court of Chancery in this Cause.
Memorandum, That, before the putting the abovesaid
Question, these Lords following desired Leave to enter
their Dissents, if the Question was carried in the Affirmative: Which being granted, they did accordingly
enter their Dissents, by subscribing their Names, and annexing their Reasons, as on the other Side (fn. *)
ORDERED, That Monday Morning next is appointed
to consider further of the Business between Bernard
Grenvile Esquire, and Jeremy Elwes Esquire.
E. of Rochester to be brought to the House.
The Gentleman Usher of the Black Rod acquainted
the House, "That the Earl of Rochester is now in his
Whereupon it is ORDERED, That his Lordship shall
be brought to this House To-morrow Morning.
"These Reasons relate to the Protestation on the
other Side (fn. *)
Reasons for the Protest.--Grenvile versus Elwes.
"1. Because, by the Death of Morley, the Suit in
Chancery, wherein this House gave Direction, seems
to us to be abated, and no longer depending there, till
it shall be revived by the ordinary Course of that
"2. Because that Court, if the Cause do yet depend,
have made no final Decree upon the former Direction
of the Lords House.
"3. We know of no Precedent since the First Beginning of Parliament to this Day, nor were any shewed,
that ever, a Decree in Chancery upon Appeal to this
House being reversed, and Directions given for a new
Hearing of the Cause in that Court, the Lords did
resume the Cause, and give further Directions (before
a final Decree), at the Solicitation of either of the
Parties, where the Lord Keeper or Chancellor found
no Difficulty in Proceedings on the First Directions.
"4. To admit an Appeal or new Resort to this House,
by either Party, upon an Interlocutory Decree, or
Decretal Order, as this was, we conceive, would endlessly multiply a Cause, be vexatious and chargeable
to the Subject, and put this House to many Trials and
Judgements in the same Cause, and take that Jurisdic
tion from the Chancery which is proper for them,
videlicet, to mend their own Work upon Bills of
Review or Reversal, if Error or Mistake shall be
found in their First Proceedings or Decrees.
"5. If this Sort of Appeal be allowed to the Plaintiff, the like cannot be denied to the Defendant, and so
toties quoties; for there can be no Limitation, if either
Side apprehend Danger, and resort to their Lordships
for Explanation of the former, or for further Directions, until their Lordships set down a Rule how
often the Plaintiff or Defendant may resort back to
them upon Interlocutory Proceedings.
"6. Though their Lordships have Power, upon Appeal, to reverse any Decree of that Cause; yet, we
humbly conceive, this House will not put the particular Equity into the Conscience or Mouth of the
Judge; but that the general Direction given in this
Cause, to proceed as upon an equitable Mortgage, is
as much as can be done (after the Relief already
given in laying aside the Release and reversing the
Decree given by the late Lord Chancellor) till, after
a final Decree, either Party shall find Cause to appeal.
"7. The further Direction their Lordships are moved
to give in this Cause is in a Point never stirred by the
Plaintiff in his First Appeal, and may, for aught yet
appears to their Lordships, never happen in the Case,
or be made Use of in the Decree of the Court of
Chancery to be made; and therefore very improper
for the Lords to interpose by Anticipation.
"8. This Way of frequent and importunate Application to the Lords in the same Cause, before it be
ripe for Hearing or Judgement, we conceive to be a
dangerous Precedent, and both derogatory and dilatory to the Proceedings of this High Court."
Smithsby's Executors versus Jacob & al.
Whereas, by Order of this House, dated the 23th
Instant, Sir John Jacob Knight, John Crispe and Thomas
Crispe Esquires, Three of the Defendants to the Petition of Symon Middleton, John Blackwell, and others,
were appointed to put in their Answers in Writing
to the Merits of the Cause complained of in the said
Petition, on Friday the 26th Day of this Instant November,
and that this House would hear Counsel on both Parts
thereupon on Monday the 29th Instant:
This House having over-ruled the Plea and Demurrer
of the said Defendants, it is this Day ORDERED, by the
Lords Spiritual and Temporal in Parliament assembled,
That the said Sir John Jacob, John Crispe, and Thomas
Crispe, shall have Time to put in their said Answers till
Thursday the Second Day of December next, at Ten of
the Clock in the Forenoon; and that this House will
hear Counsel at the Bar on both Parts, upon the said
Petition and Answers, on Monday the Sixth Day of December next, at Ten of the Clock in the Forenoon.
Dominus Custos Magni Sigilli declaravit præsens Parliamentum continuandum esse usque in diem Veneris,
26um diem instantis Novembris, hora decima Aurora,
Dominis sic decernentibus.