House of Lords Journal Volume 12: 25 November 1669

DIE Jovis, 25 die Novembris.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

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 King."

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 Banbury.

"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 Children.

"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 King.

"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. 1)

"Essex.
C. Nottingham.
Cardigan.
Anglesey.
J. Bridgewater.
J. Lucas.
Fauconberg.
Halifax."

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 safe Custody."

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. 1)

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 Court.

"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.

Adjourn.

Dominus Custos Magni Sigilli declaravit præsens Parliamentum continuandum esse usque in diem Veneris, 26^um diem instantis Novembris, hora decima Aurora, Dominis sic decernentibus.