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<DATE>2014-11-06</DATE>
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<NAME>TCP Staff (Michigan)</NAME>
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<DIV1 TYPE="document">
<PB REF="1">
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<HEADNOTE>
<LIST>
<ITEM><HI>Walter Williams</HI> and <HI>Elizabeth</HI> his Wife late Wife and Executrix of <HI>William Reed,</HI> Deceas'd. <LABEL>Appellants.</LABEL></ITEM>
</LIST>
<LIST>
<ITEM><HI>Richard Reed</HI> the Younger, <LABEL>Defendant.</LABEL></ITEM>
<ITEM>Sir <HI>William Gregory,</HI> <LABEL>Defendant.</LABEL></ITEM>
<ITEM>and <HI>Richard Wyther&s;tone,</HI> <LABEL>Defendant.</LABEL></ITEM>
</LIST>
</HEADNOTE>
<HEAD> The CASE of the <HI>Appellants,</HI> upon the Order of the Lords in Parliament, Dated the 3d. of <HI>January,</HI> 1690. Whereby the &s;aid Appeal was refer'd to the Barons of the <HI>Exchequer,</HI> to be Heard, and Determined.</HEAD>
<P><HI>JOhn Reed</HI> of <HI>Mitton,</HI> E&s;quire, Deceas'd, having Mortgaged the two Meadows in Que&s;tion, (worth 100 <HI>l. per Annum</HI>) to his Si&s;ter <HI>Katherine Reed,</HI> for 99 Years, from the 1&s;t. of <HI>April,</HI> 1612. for &s;ecuring the Payment of 500 <HI>l.</HI> and Intere&s;t at the Rate of 10 <HI>l. per Cent.</HI> as Intere&s;t then was, the &s;aid <HI>John Reed</HI> for 500 <HI>l.</HI> more, by Deed dated the 22d. of <HI>May,</HI> 16 <HI>Jac.</HI> 1. 1618 made the &s;aid term of 99 Years in the Meadows ab&s;olute to <HI>Katherine,</HI> the re&s;idue of which Term, by the Will of the &s;aid <HI>Katherine;</HI> and by &s;everal mean A&s;&s;ignments in pur&s;uance of that Will, and a con&s;tant Po&s;&s;e&s;&s;ion pur&s;uant thereunto, and by the Con&s;ent and Approbation of the Defen|dant, <HI>Richard Reed</HI> the younger, and long after his Pretences (which if true, amount but to a Tru&s;<GAP DESC="illegible" RESP="MURP" EXTENT="1 letter">) came to be ve&s;ted in the Defendants, <HI>Gregory</HI> and <HI>Wyther&s;tone</HI> on the 30th. of <HI>November,</HI> 1674. in Tru&s;t for the &s;aid <HI>William Reed,</HI> as to all the Profits of the &s;aid Meadows, except 20 <HI>l. per An.</HI> which 20 <HI>l. per An.</HI> was given to the Poor of <HI>Breedon,</HI> by the &s;aid <HI>Katherine Reed,</HI> during the &s;aid Term.</P>
<P>In <HI>September,</HI> 1675. the &s;aid <HI>William Reed</HI> (being in Po&s;&s;e&s;&s;ion of the Meadow,) made his la&s;t Will and Te&s;tament in Writing, and thereby gave all his Goods and Chattels, after his Debts and Legacies paid, to the Appellant <HI>Elizabeth</HI> his then Wife, and in <HI>February</HI> following D<GAP DESC="illegible" RESP="MURP" EXTENT="1 letter">ed, whereby the &s;aid <HI>Elizabeth</HI> was intitled to all the Profits of the Meadows, except 20 <HI>l. per. An.</HI> for the re&s;idue of the 99 Years, and depending thereupon, paid 200 <HI>l.</HI> more than all <HI>VVilliam</HI>'s other per|&s;onal E&s;tate, before &s;he heard of any pretence of the Defendants.</P>
<P>But the &s;aid <HI>Gregory</HI> and <HI>VVyther&s;tone</HI> without any direction from the &s;aid <HI>VVilliam Reed</HI> for &s;o doing, in breach of the Tru&s;t repos'd in them, made a Deed of Declaration, that they &s;tood po&s;&s;e&s;s'd of the Meadows for the re&s;idue of the 99 Years from the 1&s;t. of <HI>Novem|ber,</HI> 1679. in Tru&s;t for the Defendant <HI>Reed.</HI></P>
<P>And the Defendant <HI>Reed</HI> having exhibited a Bill in Chancery again&s;t the &s;aid <HI>Elizabeth,</HI> to compel her to A&s;&s;ign all her Intere&s;t in the Mea|dows in Que&s;tion, to him, and &s;he having exhibited a Bill again&s;t him, and the other Defendants, <HI>Gregory</HI> and <HI>VVytherstone,</HI> to compel them to A&s;&s;ign to her; it was Decreed the 26th of <HI>June,</HI> 1680. That the &s;aid <HI>Elizabeth</HI> being then in Po&s;&s;e&s;&s;ion of the Meadows, &s;hould A&s;|&s;ign all their Intere&s;t to the now Defendant <HI>Reed,</HI> and her Bill again&s;t him, and the other Defendants, <HI>Gregory</HI> and <HI>VVyther&s;tone,</HI> to compel them to A&s;&s;ign to her, was di&s;mi&s;s d, and the Appellant, <HI>VValter VVilliams,</HI> and &s;he inter-marrying before &s;he had A&s;&s;ign'd, they were both committed to the Pri&s;on of the <HI>Fleet,</HI> and there forc'd to A&s;|&s;ign all their Intere&s;t in the Meadows to the Defendant <HI>Reed</HI> for no|thing.</P>
<P>From this Decree in 1680. the &s;aid <HI>VValter VVilliams,</HI> and <HI>Eliza|beth</HI> Appeal'd to your Lord&s;hips, and from another Decree made in 1639. which though it was Erroneous, and could never be put in Ex|ecution, yet was partly made a Colour for the Decree in 1680. and the Cau&s;e upon the &s;aid Appeal was appointed to be heard before your Lord&s;hips the 14th. of <HI>November,</HI> 1685. but upon the Defendant <HI>Reed</HI>'s pretending he could not be ready, the Appellant con&s;ented, that the Cau&s;e &s;hould be put off to the 24th. of the &s;aid Month, before which Day, the Parliament was Adjourn'd, or Prorogued, and afterwards Di&s;&s;olv'd, &s;ince which time, the Appellants could not procure the &s;aid Appeal to be brought to Hearing until the 26th. of <HI>March,</HI> 1689.</P>
<P>But the Appellant, <HI>VValter VVilliams,</HI> having Notice &s;ome time be|fore that Day, that the &s;aid Sir <HI>VVilliam Gregory</HI> was cho&s;e a Mem|ber of the Hou&s;e of Commons, he apply'd him&s;elf to the Hou&s;e of Commons, for their Leave to proceed again&s;t the &s;aid Sir <HI>VVilliam Gregory</HI> upon the &s;aid Appeal, but the Hou&s;e of Commons would not give leave, though, as the Appellant was inform'd, the Hou&s;e would have given Leave, if the &s;aid Sir <HI>VVilliam Gregory</HI> would have ask'd it him&s;elf, but that he would not do, though the Appellant inform'd both him and the other Defendant <HI>Reed</HI> &s;everal days before the Hearing, that he dur&s;t not proceed without the Leave of the Hou&s;e of Com|mons, and the Appellant on the &s;aid 26th. of <HI>March,</HI> 1689, by his Council, pray'd your Lord&s;hips, that the Cau&s;e upon the Appeal might be Adjourn'd for a Fortnight, to &s;ee, if in the mean time, he might get the Leave of the Hou&s;e of Commons, or el&s;e, that the Matter might re&s;t until &s;uch time as Sir <HI>VVilliam</HI> were not a Member of the Hou&s;e of Commons, but the Defendant's Council pre&s;s'd your Lord&s;hips to di&s;mi&s;s the &s;aid Appeal, if the Appellants would not then proceed, and to induce your Lord&s;hips thereunto, they affirm'd, that Sir <HI>VVil|liam Gregory</HI> had releas'd to the Defendant <HI>Reed,</HI> and that therefore there wa<GAP DESC="illegible" RESP="MURP" EXTENT="1 letter"> no nece&s;&s;ity for the Appellants to proceed again&s;t Sir <HI>VVil|liam Gregory,</HI> though in Truth, Sir <HI>VVilliam</HI> had not then releas'd, as him&s;elf afterwards confe&s;s'd, though he had made a Declaration con|trary to the Tru&s;t repos'd in him, and if he had releas'd, that did not b<GAP DESC="illegible" RESP="MURP" EXTENT="1 letter">r the Appellant's from their Appeal again&s;t him, but h<GAP DESC="illegible" RESP="MURP" EXTENT="1 letter">d been a further aggravation again&s;t him, as being a further breach of Tru&s;t; yet neverthele&s;s they prevailed with your Lord&s;hips to di&s;mi&s;s the &s;aid Appeal, becau&s;e the Appellants dur&s;t not then adventure to proceed without the leave of the Commons.</P>
<P>Afterwards, upon the Appellants repre&s;enting to your Lord&s;hips what great differences formerly hapned between both Hou&s;es in the Ca&s;e of <HI>Sherley</HI> and <HI>Fagg;</HI> for <HI>Sherley</HI>'s proceeding in an Appeal again&s;t <HI>Fagg,</HI> then a Member, without the leave of the Commons; and that it might have been made u&s;e of to have rai&s;ed the like differences again, in ca&s;e the Appellants had proceeded again&s;t Sir <HI>William Gregory,</HI> with|out the leave of the Commons, which might have been very prejudi|cial to the Government at that time, therefore your Lord&s;hips retained the &s;aid Appeal; and becau&s;e it was then &s;o near the end of the Se&s;&s;ion, as the Defendants could not have timely notice if your Lord&s;hip<GAP DESC="illegible" RESP="MURP" EXTENT="1 letter"> had appointed a &s;hort day for hearing: and in regard the Appellants had been &s;o long delay'd, your Lord&s;hips, by O<GAP DESC="illegible" RESP="MURP" EXTENT="1 letter">der of the 3d of <HI>Ja|nuary,</HI> 1690. referred the &s;aid Appeal to the Barons of the Exchequer, to be heard and determined.</P>
<P>Whereupon the Appellants, on the 23d. of <HI>January</HI> moved the Barons of the Exchequer to appoint a day for hearing the &s;aid Appeal; at which time Baron <HI>Lechmore</HI> oppo&s;ed it, and declared he thought your Lord&s;hips could not delegate any Authority to hear that Appeal: But the other three Barons being then of the contrary opinion, they appointed the Appeal to be heard the day of hearing Cau&s;es next after <HI>Hillary</HI>-Term la&s;t. But afterwards, upon the Defendant <HI>Reed's</HI> Affi|davit of his being an old Man, and living 100 mile from <HI>London,</HI> the Barons &s;o far indulged him, as upon his reque&s;t to put off the Cau&s;e &s;everal times, and to agree to his own time for hearing thereof. And on the 26th of <HI>May</HI> Councel on both &s;ides were heard before the Ba|rons, upon the &s;aid Appeal: But the Lord Chief-Baron being that day obliged to attend in the Hou&s;e of Lords, he could not &s;tay to hear the Proofs read, and therefore the Cau&s;e was adjourned for a further hear|ing until the 15th of <HI>June,</HI> 1691. on which day Councel for both &s;ides appearing, the Councel for the Defendant in&s;i&s;ted upon it, That your Lord&s;hips had not power to delegate, and that your Lord&s;hips Order of Reference was obtained by &s;urprize: and Mr. Baron <HI>Lechmore</HI> re|peating his former opinion, That your Lord&s;hips had not power to delegate, and prote&s;ting again&s;t hearing the Cau&s;e, Mr. Baron <HI>Turton,</HI> though with great difficulty, declared him&s;elf of the &s;ame opinion: So the Barons being equally divided, Two <HI>for</HI> hearing, and Two <HI>again&s;t</HI> it, the Cau&s;e was no further heard, nor any Judgment given.</P>
<P>The Appellants conceive your Lord&s;hips may delegate any Cau&s;e before you, except Cau&s;es upon Writs of Error to any of the Judges, for the&s;e Rea&s;ons:</P>
<P N="1">1. For that the Appellants conceive, That the King is always either virtually or per&s;onally pre&s;ent in the Hou&s;e of Lords in Parliament a&s;|&s;embled, and that there he is in his highe&s;t Judicial Capacity, and therefore the Orders of the Hou&s;e of Lords are in the eye of the Law the Orders of the King and Lo<GAP DESC="illegible" RESP="MURP" EXTENT="1 letter">ds, and the King may delegate in all Temporal Cau&s;es by the Common-Law. <BIBL><HI>Bract.</HI> 108.412.</BIBL></P>
<P N="2">2. For that what hath been the Common U&s;age of the Kingdom, is the Law of the Kingdom; and that Cau&s;es have been referr'd by Order of the Hou&s;e of Lords, time out of mind, &s;ometimes to the Chancellor and &s;ome of the Judges, and &s;ometimes to &s;ome of the Judges only; and that as frequently to determine the matter, as to report to the Hou&s;e, as appears by the Parliament-Rolls and Jou<GAP DESC="illegible" RESP="MURP" EXTENT="1 letter">nals hereafter mentioned; <HI>viz.</HI> <BIBL>3 <HI>H.</HI> 5. <HI>n.</HI> 18. </BIBL><BIBL><HI>Ibidem, n.</HI> 49.</BIBL> <BIBL>8 <HI>H.</HI> 6. <HI>n.</HI> 45.</BIBL> <BIBL><HI>Lords Journals</HI> 28 29 <HI>of May,</HI> 1624.</BIBL> <BIBL>17 <HI>No.</HI> 1666.</BIBL> <BIBL>29 <HI>No.</HI> 1664.</BIBL> <BIBL>24 <HI>Octob.</HI> 1667.</BIBL> <BIBL>25 <HI>March,</HI> 1669,</BIBL> <HI>&amp;c.</HI> And the rea&s;on thereof may be grounded upon what is cited in <BIBL><HI>Cooke's In&s;titutes,</HI> fo. 11.</BIBL> out of the ancient Trea|ti&s;e, <HI>De modo tenendi Parliamenti.</HI> viz. The Parliament ought not to be ended while any Petition remaineth undi&s;cu&s;s'd, or at lea&s;t to which a determinate An&s;wer is not given; and therefore &s;uch Cau&s;es as can|not be determined in the Hou&s;e of Lords &s;itting the Parliament, ought rather to be referred to competent Judges, than that Ju&s;tice &s;hould be delay'd until the next meeting of the Parliament.</P>
<P>If it be objected, That the Lords having once di&s;mi&s;&s;ed the Appeal, it ought not to be retained, becau&s;e if the Lords alter their Orders, there will be no end of bu&s;ine&s;s:</P>
<P>In an&s;wer thereto, It is hoped the Lords will not alter the Law; and that the Law is, That Errors in Parliament ought to be rectified in another Se&s;&s;ion, or in another Parliament, &s;ee <BIBL>21 <HI>E.</HI> 3. 46. <HI>Broo. tit.</HI></BIBL> <BIBL><HI>Error</HI> 66, 68.</BIBL> <BIBL><HI>Crompt. Juri&s;diction,</HI> fo. 12.</BIBL> <BIBL><HI>Lord Hollis's Ca&s;e &s;tated,</HI> fo. 65.</BIBL> which la&s;t was as great a Champion for the Juri&s;diction of the Lords, as any what&s;oever.</P>
<P>If it &s;hould pa&s;s for a &s;tanding Rule, That all Orders of the Lords Hou&s;e &s;hould be perpetually binding, and not alterable, tho grounded upon fal&s;e P<GAP DESC="illegible" RESP="MURP" EXTENT="1 letter">oofs or Informations, there will be tho&s;e that will not fail to invent, affirm, and &s;weir &s;uch fal&s;e &s;ugge&s;tions, as will require time to di&s;prove; and if it &s;hould not be admitted to di&s;prove them, I doubt we may &s;oon bid farewell to all Ju&s;tice.</P>
<P>And as to the Objection that was made, That if the Barons had heard the Cau&s;e in hand, and made a Decree therein, they could not have put it in execution: It is conceived, That if they could not, yet tho&s;e that then &s;hould have the Cu&s;tody of the Great Seal ought to have put their Decree in execution; for there are many Pre&s;idents in many Reigns, That the King out of Parliament hath referred Chancery-Decrees to &s;ome of the Judges and the Chancery hath always pur&s;ued the Opi|nion and Judgment of tho&s;e Judges, <HI>&agrave; fortiore.</HI> Therefore if the King in Parliament refers any Appeal from Chancery-Decrees, the Chancery ought to pur&s;ue the Opinion and Judgment of tho&s;e Referees; the Re|ference of the Hou&s;e of Lords being the King's Reference in his Supreme Judicial Capacity, as is afore-&s;hew'd.</P>
<P>It is &s;aid, That the Prorogation hapning before the Cau&s;e was throw|ly heard, determined the Power given the Barons, in ca&s;e they had any by your Lord&s;hips Order. As to which, much may be &s;aid again&s;t that opinion in all Ca&s;es of this nature: but there's a particular rea&s;on in this Ca&s;e, that the Barons Power &s;hould not be determin'd; and that is this:</P>
<P>This Cau&s;e was appointed to be heard, and &s;hould have been heard the &s;itting after <HI>Hillary</HI>-Term; and the Defendants by their Councel, on the 10th of <HI>February,</HI> pray'd it might be put off until <HI>Ea&s;ter</HI>-Term, and agreed to hear it then; and upon that offer and reque&s;t, the Cau&s;e was put off until the fir&s;t <HI>Monday</HI> in <HI>Ea&s;ter</HI>-Term: And afterwards, on the fir&s;t of <HI>May,</HI> the Defendant <HI>Reed</HI> pretending extraordinary bu&s;i|ne&s;s, that he could not come to <HI>London</HI> by the fir&s;t <HI>Monday</HI> in <HI>Ea&s;ter</HI>-Term, the Defendants by their Councel pray'd, That the hearing of the Cau&s;e might be put off for a fortnight longer, and again undertook they would peremptorily hear it then: So that their own Agreement gives the Barons a Juri&s;diction, in ca&s;e the Juri&s;diction they had by your Lord&s;hips Order did determine by Prorogation.</P>
<CLOSER>Of all which your Lord&s;hips Con&s;ideration is humbly pray'd&punc;</CLOSER>
<PB REF="3" MS="y">
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