House of Lords Journal Volume 14: 9 January 1690

DIE Jovis, 9 die Januarii.

Domini tam Spirituales quam Temporales præsentes fuerunt.

PRAYERS.

D. of Norfolk et al. and Ly. Elizabeth Russel's Bill.

Hodie 3^a vice lecta est Billa, "An Act to discharge the Duke of Norfolk, and the Trustees of Henry late Duke of Norfolk, upon Payment of certain Sums of Money to the Lady Elizabeth Teresa Russell, Wife of Bartholmew Russell Esquire."

The Question being put, "Whether this Bill shall pass for a Law?"

It was Resolved in the Affirmative.

Message to H. C. with it.

A Message was sent to the House of Commons, by Sir Miles Cooke and Sir John Francklyn:

To deliver to them the Bill for discharging the Duke of Norfolke, &c.; and to desire their Concurrence thereunto.

Fountain versus Coke.

After having heard Counsel Two several Days at the Bar, upon the Petition and Appeal of Andrewe Fountaine Esquire, from a Decree made in the Court of Exchequer, the Tenth Day of June, 1678, in a Cause there depending, between Robert Coke Esquire and others Plaintiffs, and the Petitioner Defendant; as also upon the several Answers of Edward Coke Esquire, an Infant under the Age of One and Twenty Years, by the Right Honourable the Lady Anne Coke Widow, his Mother and Guardian, and the Answer of Wm. Guavas Esquire put in thereunto:

(fn. 1) Interlined, per Ordinem 24 Aprilis, 1690.

After due Consideration had of what was offered by Counsel on either Side thereupon, the Lords Spiritual and Temporal in Parliament assembled do order, adjudge, and direct, That the said Edward Coke, by his Guardian, and the said Andrew Fountaine, do, in or before Easter Terme next, proceed to a Trial at Law, at the Bar of Their Majesties Court of Exchequer, by a Jury of the County of Essex, upon these Two Issues; to wit, First, Whether the Sum of Five Thousand Pounds, lent to Sir Robert Holt, or any Part thereof, and what Part, was the Money of John Coke the Testator of the Defendant Guavas, at the Time of the Loan thereof, to the said Sir Robert Holt; and, Secondly, Whether the said John Coke did at any Time, after the said Loan thereof, give the said Sum so lent, or any or what Part thereof, unto the said Appellant Andrew Fountaine [by any other Deed or Writing than by the Releases], in which Issues the said Andrew Fountaine is to be Defendant; and the said Fountaine is forthwith to name an Attorney of that Court, and accept a Declaration, so as the Trial may be had in Easter Terme next as aforesaid. And, to the End that a substantial Jury may be returned, it is further ORDERED and Directed, That the Sheriff of the said County do attend the Master of the Office of Pleas of that Court, with his Freeholders Book; and therein the Master of the said Office of Pleas is to name Forty-eight Persons, whereof each Part is to strike out Twelve, and the remaining Four and Twenty are to be returned of the Jury, for Trial of the Issue before directed: And forasmuch as it hath fully appeared to this House, that the said William Guavas Esquire was, in the Year 1662, retained and employed by the said John Coke, for and as his Receiver of his Rents, Fines, and other Money, and did exercise and continue in that Employment for and during the said Year 1662, and always afterwards during the Life of the said John Coke; and that it will be necessary, in order to the Trial of the Issue aforesaid directed, to make Proof of the same Matter at the said Trial at Law, this House being satisfied with the Proofs already made in the said Cause in the said Particular; it is therefore further ORDERED, That, upon the Trial of the Issues, it shall be admitted that the said William Guavas was, in the Year 1662, retained and employed by the said John Coke, for and as his Receiver of his Rents, Fines, and other Monies, and did exercise and continue in that Employment during the said Year 1662, and always afterwards to the Time of the Death of the said John Coke; and, at the said Trial, the Depositions of such Witnesses taken in this Cause, as are either dead, or not able to travel to the said Court of Exchequer to attend the said Trial, are to be made Use of by either Party: And it is further ORDERED and Adjudged, That if the said Issues directed shall not be tried by the End of Easter Terme next as aforesaid, through the Default of the said Andrew Fountain; or if, upon Trial, it shall be found that the said Money was Mr. Coke's; that then the said Andrew Fountaine's Appeal shall be, and is hereby, dismissed this House; but if it shall be found that the said Money was the said Andrew Fountain's and not Mr. Coke's, that thereupon both Parties shall be at Liberty to resort back to this House, in order to have a final Judgement therein upon the whole Matter: And it is further ORDERED, That the Vellum Book and stitched Papers, produced at the Hearing in the Exchequer, shall be produced at the Trial now ordered.

Coke versus Fountain.

The House being moved, "That a Day may be appointed for hearing the Cause, wherein Edward Coke Esquire is Plaintiff, and Andrewe Fountaine Defendant:"

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That this House will hear the said Cause, by Counsel on both Sides, at the Bar, on Monday the 20th of this present January, at Ten of the Clock in the Forenoon: And it is further ORDERED, That the said Andrew Fountaine do produce, at the said Hearing, the Vellum Book and stitched Papers, which were produced at the Hearing in this House on Tuesday and Wednesday last past.

Report about the Trial of Peers.

ORDERED, That the Report from the Committee for Privileges shall be made To-morrow, at Ten of the Clock in the Forenoon.

Adjourn.

Robertus Atkins, Miles de Balneo, Capitalis Baro de Scaccario, Orator Procerum, declaravit præsens Parliamentum continuandum esse usque in diem Veneris, (videlicet), 10^um diem instantis Januarii, hora decima Aurora, Dominis sic decernentibus.

Hitherto examined by us, this 11th April, 1690,

Craven.
North & Grey.
Herbert.