House of Lords Journal Volume 8: 11 December 1646

DIE Veneris, 11 die Decembris.

PRAYERS, by Mr. Arrowsmyth.

Domini præsentes fuerunt:

Comes Manchester, Speaker.

Colonel Wiltshire freed from Arrests till his Arrears are paid.

Upon reading the Petition of Lieutenant Colonel Wiltshire; complaining, "That he is arrested for a small Debt, there being much owing to him for his Arrears for his Service to the Parliament, he having been Major of Sir Tho. Fairefax' Regiment in the North, and done faithful Service to the Parliament."

It is Ordered, That the said Lieutenant Colonel Wiltshire shall be released from his present Restraint, and enjoy the same Privilege granted to others of the same Nature, until he shall receive some Part of his Arrears to discharge the said Debt.

Ordinance about Presentations to Livings.

Ordered, That the Earl of Stamford, the Lord North, Lord Willoughby, and the Lord Hunsdon, are added to the Committee for preparing an Ordinance concerning Presentation to Livings.

Saxton to be instituted to Hareworth.

Ordered, That Doctor Heath shall induct and institute Mr. Saxton to the Vicarage of Hareworth, in the County of Nottingham; he being presented thereunto by the Right Honourable the Earl of Pembrooke; the said Mr. Saxton taking the Covenant: And this with a salvo Jure cujuscunque.

Langham and Lymby.

This Day the Answer of Captain Lymbery, &c. to the Petition of Alderman Langham, &c. was presented to the House, and received, and read. (Here enter it.) And it is Ordered, That Alderman Langham, &c. shall have a Copy of this Answer.

Johnston and Nason.

This Day the Counsel of Nason Defendant, in a Writ of Error depending in this House, was heard; but the Counsel of Johnston the (fn. 1) Plaintiff made Default.

Hereupon the House took into Consideration the Errors; and Ordered and Adjudged, That the said Judgement is hereby confirmed, and the Record to be remitted into the King's Bench, that so Execution may be taken out accordingly.

Cook and Slipper.

Ordered, That the Errors in the Writ of Error between Cooke and Slipper shall be argued, at this Bar, by Counsel, this Day Sevennight.

Survey of the E. of Worcester's Lands.

Ordered, That the Survey of the Earl of Worcester's Lands, reported from the Committee of the Revenue, be sent down to the House of Commons.

Lock's Ordinance.

The Ordinance for making Mr. Lock Comptroller of the Customs for the Town of South'ton, was read, and Agreed to. (Here enter it.)

Ordinance about the Captives at Algiers.

The Ordinance concerning the Captives at Algier, was read, and Agreed to. (Here enter it.)

Paper from the Admiralty Committee.

The Earl of Warwicke reported a Paper from the Committee for the Admiralty and Cinque Ports; which was read, as follows:

To recommend Mr. Bence to be a Commissioner of the Navy.

"Die Jovis, 3 Dec. 1646.

"At the Committee of Lords and Commons for the Admiralty and Cinque Ports.

"Forasmuch as Captain Morris, lately One of the Commissioners of the Navy, is dead; and for that Mr. Alexander Bence, a Member of this Committee, is qualified with very good Experience and Abilities for executing the Place of One of the said Commissioners: This Committee doth therefore recommend it to both Houses of Parliament, that the said Mr. Alexander Bence may be by them approved and appointed to hold and execute the Place of One of the Commissioners of the Navy, in the room of Captain Morris deceased as aforesaid, and to have the like Allowance in respect thereof as is granted to the rest of the said Commissioners."

Mr. Smith to be recommended for that Office;

The House taking into Consideration, that the said Mr. Bence is a Member of the House of Commons, and so cannot attend that Place as it requires; this House nominated Mr. Thomas Smyth to be a Commissioner of the Navy, in the Piace of Mr. Captain Morris, and to have the same Salary as other Commissioners have; and an Ordinance to be brought in for this Purpose.

Another Paper was read, and reported, from the Admiralty:

and for Mess. Johnson and Knight to have 336 l.14s. 6d. for their Services in Holland.

"Die Jovis, 3 Dec. 1646.

"By the Committee of Lords and Commons for the Admiralty, &c.

"Whereas this Committee, on Consideration of the many Services performed in Holland for the Parliament, by Mr. Johnson and Mr. Knight, Merchants of Rotterdam, did on Thursday last recommend it to the Committee of the Navy, to pay them Three Hundred Thirty-six Pounds, Fourteen Shillings, Six Pence, according to an Accompt by them tendered, for their Allowance and Expences in attending and prosecuting the said Services; and whereas the said Committee did this Day signify in Writing their Opinions, That the said Mr. Johnson and Mr. Knight should have the said Three Hundred Thirtysix Pounds, Fourteen Shillings, Six Pence, paid them; but recommended it back to this Committee, that both Houses of Parliament may be moved, to give the Committee of the Navy Power to make Payment thereof: It is therefore recommended to both Houses, that, in respect of the said Mr. Johnson and Mr. Knight their good Services, Power may be given by them to the Committee of the Navy, for Payment of the said Three Hundred Thirty-six Pounds, Fourteen Shillings, Six Pence, to the said Mr. Johnson and Mr. Knight accordingly."

Ordered, That this House approves of this Report; and that it be recommended to the House of Commons, for their Concurrence therein.

Stitch and Boilston.

Ordered, That the Cause between Stitch and Boilston shall be heard, by their Counsel on both Sides, on Wednesday next.

Ordinance to prevent Laypreaching.

An Ordinance against Lay-men to preach, was read Thrice, and Agreed to, and Ordered to be sent to the House of Commons for their Concurrence.

Langham &al. and Lymbery &al.

"The Answer of Captain John Lymbery, Arnold Brames, and John Cradocke, to the Petition of Sir John Cordell Knight Alderman of London, John Langham Alderman, and others.

"The said Defendants do most humbly offer to this Honourable Court, That they are very much perplexed how and in what Manner to give such an Answer to the said Petition as may give Satisfaction to this Honourable Court, in regard the said Petition being a Petition of Review, or in the Nature thereof, or a Complaint to reverse and amend the Decree in Chancery therein mentioned, and yet is made up and mixt of several Matters in Fact and Proceedings precedent and subsequent to the said Decree in Chancery. However, these Defendants say, That the Materials of the said Petition consist of Two Parts; the First, the Inducement to the Petition, containing Matters in Fact already alledged by the Complainants in their Bill in Chancery, and answered by the Defendants upon their Oaths; the Particulars whereof are, the Contract for the Ship being wholly comprized in the Charter-party, the Covenants therein, the Point of Deviation, the Defendants Acceptance of the Ship, viewing her, not protesting against her, the Bill of Assurancce, the pretended Customs of Merchants, the Defendants not complaining of her Insufficiency, the pretended Miscarriage of the Jury, and the other Matters set forth in the Complainants Bill in Chancery; to which these Defendants have already been enforced to give an Answer in Chancery on their Oaths, and therefore hope they shall not be put to answer the same before your Lordships.

"As to the other Part of the said Petition, consisting of Matters formerly not expressed in the said Bill in Chancery, the Defendants answer as followeth; that is to say,

"These Defendants confess, that the Complainants did exhibit a Petition to your Lordships, and whereon such Order was made as is alledged; the Petition being in these Words:

"To the Right Honourable the Lords in Parliament assembled.

"The humble Petition of Sir John Cordell Knight and Alderman of London, John Langham Esquire and Alderman of London, and Symon Edmonds of London Merchant, and others.

"The Petitioners, being heretofore Owners of a Ship called The Royall Merchaunt, of Burthen Five Hundred Ton, and John Lymbrey, Arnold Brames, and John Cradock, of London, Merchants, in November 13° Car. covenanted by Charter-party, each with other; the Petitioners letting their Ship to Freight, at One Hundred and Fourscore Pounds per Month, for Fifteen Months, and so per Month if used longer, provided the same did not in the whole exceed One and Twenty Months; the Merchants for loading and paying the said Freight, with divers other reciprocal Covenants, as by the said Charter-party appeareth.

"In which said Month of November, the Merchants loaded the said Ship, and kept her in their Use, and making several Voyages with her at their Pleasure, for Fourty-four Months (being almost Two Years more than they ought), about which Time the Ship sunk, and perished in the Sea.

"The Petitioners, expecting their due Freight and Damages for their Ship, and often demanding the same, have been and still are delayed by the Merchants, upon divers seigned Pretences; and although, all Matters considered, the Merchants are responsal to them for above Ten Thousand Pounds, yet cannot they get One Penny thereof. The Petitioners brought their Action at Law upon the Charter-party in the Common Pleas; but for that the Evidence would prove intricate to a Jury, the Matter concerning the Course of Trading amongst Merchants, and that Court having but One Judge in Place to hear the Cause, they were advised to be Nonsuit rather than proceed at that Time.

"The Merchants having the Petitioners Money in their Hands (the Use whereof will more than maintain Law Suits), have brought Four several Actions against your Petitioners, upon the said Charter-party, in the Court of King's Bench, thinking by their Multiplicity of Actions to weary the Petitioners, whereas they might (if they had Cause) have included all in One Action. In the said Merchants Actions, divers Points will be considerable; as, whether the said Ship were firm and staunch according to the true Meaning of the Covenants, and what Damages they sustained if the Petitioners failed in any Part of Performance of their Covenant.

"The Debate of which Matters will require not only long Time for particular Examinations, but likewise Jurors experienced in Trade, for the true discerning of Matters of that Nature.

"The Petitioners, for a fair Decision of all the said Differences, have often heretofore desired the said Merchants to submit to a Reference to Merchants, and indifferently to be agreed on; or, if they will needs go on with Trial at Law, that then (by Consent) Merchants may be returned upon the Juries: But the said Merchants do utterly refuse either of those Courses; and, in the Actions brought by them in the King's Bench, have such Jurors returned for Trial as are not competent nor fit for Trial thereof, though otherwise, and for Matters within their Cognizance, they are Men of good Understanding.

"The Petitioners also have been, and still are, employed in the great Public Business of the Kingdom, and, by reason thereof, could not heretofore, nor yet can, attend the said private Law Suits, without neglecting the Public Occasions.

"The Premises considered, the Petitioners humbly desire your Lordships, that you would be pleased either to refer the said Matters to some Merchants of Quality, whom your Lordships shall think fit, to hear and determine the same:

"Or otherwise, to order the said Merchants to consent to some speedy Trial at Law, wherein indifferent Merchants of Quality may be returned for the Trial of the several Issues:

"Or else, that your Lordships would be pleased to recommend the same to such Merchants whom your Lordships shall think fit, to hear and report to your Lordships how they find the same; and that then your Lordships would be pleased to take the same into your Consideration, and finally determine the same as to your Lordships shall seem to stand with Equity and Justice.

"And your Petitioners shall pray, &c.

"And true it is, that after your Lordships made such Order, as is expressed in these Words:

"Die Mercurii, 15 Novembris, 1643.

"Upon the Report of the Lords Committees appointed to consider of the Petition of Mr. Alderman Langham and others, as also the Petition of John Limbery and others: It is Ordered, by the Lords in Parliament, That the Petition of the said Alderman Langham and others shall be retained here in this House, and that the Trial of Law shall go on; but this House doth reserve the Consideration of the Equity of the Cause, to give such Relief therein as shall stand with Equity after the Trial at Law; and if the Verdict pass for the Plaintiff at the Common Law, he may take Judgement, but shall stay taking forth Execution until this House shall give further Direction herein.

"But as to the said Petition and Order, these Defendants set forth, That they, these Defendants, conceive that the said Order, being made on the said Petition, doth or can reserve no Equity but what is contained in the said Petition; for it was not your Lordships Meaning to determine thereby that there was any Equity in the said Cause or Petition, and, under Favour, there is no Relief in Equity thereby desired; it being unheard-of, that any Cause at the Suit of the Plaintiff should be referred to be either tried or judged in any arbitrary Way, which was all that was desired by the Petition, except only the Matter for the Manner of the Trial, which was determined by your Lordships against the Complainants; and though it be determined against them, they insist on it again in this Petition.

"Secondly, the Defendants say, That the said Petition is, by subsequent Orders, at the Prayer and Intreaty of the Complainants themselves, dismissed this Honourable Court, as by the Orders of this Honourable House doth appear.

"Another new Matter is, That the Plaintiffs say, That there was a Proposition made by the Court of Chancery, for the final settling and ending of the Matter in an arbitrary Way, which took no Effect, through the Defendant Lymberye's Default: Which this Defendant faith, That, when the said Cause was depending in Chancery, some Course was propounded; but it was also promised by Alderman Langham solemnly to the Court, That no Mention should be of the said Proposition, or any Thing thereon, in any other Proceedings in any Court, whether the same took Effect or no; against which solemn Promise of his, he now alledgeth that the Default to be in the Defendant: So that this Defendant Lymbery saith, That he hath found the Alderman's Word and Ship both alike strong and staunch.

"And these Defendants say, That it is strange to them, to be pressed to give Satisfaction to such Pretences; it being, as these Defendants conceive, very unjust to alledge, that when a Man is in a Court of Justice for Justice, it should be pressed against them as a Fault or Disadvantage, that they chose Justice before an arbitrary Proceeding: But if it had been extrajudicial, and a voluntary Treaty of Parties, it had been something material to have been offered to consider. And these Defendants say, That in that Way these Defendants besought and laboured the Alderman before any Suit began, as appeareth by the Petition; but he refused, saying, That he would overthrow your Petitioner Lymbery in all Courts where he should come, and would undo him, and not leave him worth a Groat, and would spend Ten Thousand Pounds but he would have his Will of him: All which the Defendant Lymbery hath set forth upon his Oath, in his Answer to the Plaintiffs Bill in Chancery aforesaid.

"Touching the other Matter of a former Bill exhibited by these Defendants, to examine Witnesses, they being most Seamen, whereby these Defendants might be enabled for a Trial at Law; these Defendants confess the same, but conceive it no Way availeth the now Complainants, nor was any Offence in this Defendant.

"And touching the Decree in Chancery, these Defendants believe such Decree was had and made; but these Defendants conceive it gave more Relief to the now and then Complainants than it ought; and was, these Defendants conceive, erroneously pronounced against them, and without any Power or Jurisdiction in that Court to give or award any such Decree for a new Trial:

"1. First, For that the Ground of the said Decree is, That the Matter was difficult, and of Value; as if the Court of King's Bench might not without the Approbation of the Chancery try any Cause of Difficulty or Value.

"2. Secondly, Because, that being the Ground of the Decree, neither is the Difficulty cleared, nor the Value.

"3. Thirdly, Because, by a former Order, dated 10 April. 21° Car. and by which a Plea and Demurrer of these Defendants were over-ruled, the said Court did then order, That no Matter formerly in Issue should be examined to; and if any Examinations were thereon taken, to be suppressed; the Point of "strong and staunch," and the Damages by Breach of Covenant, being formerly in Issue in the former Cause; by which Order the Defendants, having a Verdict at Law in Point that the Ship was not staunch, were foreclosed to examine any Witnesses to support and maintain the Verdict; and then these Defendants do not nor can conceive that it could be just, to take away that Verdict by that Court, which, having debarred the Parties from Examination of the Justice and Truth thereof, did thereby also debar themselves to be informed of the Justice and Truth thereof; and the Verdict especially being subsequent to the former Examinations, those subsequent Proofs made at the Trial viva voce, which cleared the Pretences of the now Complainants against the Verdict, and answered fully the staying of the Ship so long, and all other the Plaintiffs Pretences of Merchants Customs, and other Things pretended by the now Complainants, could not possibly be used in Chancery, so as that Court condemned a Trial, having excluded all Means to be informed of the Goodness of it.

"Lastly, As to the said Decree, and all and every the Matters of the Petition now exhibited, the Defendants say, That, by an Act of Parliament, made 4 H. IVth, Cap. 23, it is Ordained and Established, That, after Judgement given in the Courts of our Lord the King, the Parties and their Heirs shall be thereof in Peace, until the Judgement be undone by Attaint or by Error, if there be Errors, as hath been used by the Laws in the Times of the King's Progenitors.

"And the Petitioner faith, That he having, as believeth, wrongfully, by Breach of Covenant, sustained Damages to the Value of Forty Thousand Pounds, did, to prepare for his Recovery, exhibit a Bill in Chancery against the Complainants, where the Matters were in Issue, material for the Defendants to prove, and for the now Complainants Defence, and were exhibited and published by Consent. Afterwards these Defendants did (which Way and no other they could go) bring their Action of Covenant. The Plaintiffs pleaded. The Defendants proceeded to Trial. The now Plaintiffs, nor any of them, were not furprized; all their Witnesses heard, and all their Allegations heard, being the very same which they now make, and by which, they confess in their now Petition, they hoped to be relieved at the said Trial. The Defendant Langham himself was willing to come to Trial, if his own Oath were true, when he swore, as he did in the King's Bench, in an Affidavit there filed, "That if Roger Marten, Master of the Ship Mary, then beyond Seas, and coming Home, were at Home, he was willing and ready to go on to the said Trial;" upon which, the Trial was put off until the Return of the said Martin; and after, the Trial was had by Consent, and the said Roger Marten was present at the Trial, and heard as a Witness; after all which, and Eleven Hours Evidence, these Defendants had a Verdict; and at length, and before any Answer in Chancery made, had Judgement, as by the Records appeareth.

"And there is no Penalty in Question, but bare Damages; nor no Matter alledged but what was triable at Law, and at Law only.

"And therefore, and for that these Defendants set forth the said Statute by Way of Answer in Chancery, and relied thereon, and do still rely thereon, these Defendants conceive, that, by the Law of the Land, and by the said Statute, the Chancery had no Jurisdiction of the said Cause, nor any the Matters now alledged as Grounds of Relief in Equity.

"All which these Defendants aver; which these Defendants conceive they may with more Confidence alledge, having,

"1. First, An Act of Parliament with them.

"2. Secondly, The Constructions and Resolutions of the former and Reverend Judges of the Law.

"3. And Thirdly, A Certificate of all the present Judges, and divers printed Authorities ancient and late with them; and nothing against them, but an Opinion of some Practicers and Favourites of that Time of the Chancery, which was unduly gained and made, and gotten in a worse Way than the Opinions of Ship-money and the like, and yet, when examined, cannot be applied to the Case in Question.

"As to the Plaintiffs Allegation, That they can have but One Matter to plead at Law;

"These Defendants conceive, that, when they have well advised with their Counsel, they will find that they have no other Matter to plead but what Alderman Langham did plead, nor to give in Evidence but such as he did give in Evidence; and therefore is rather a Complaint against the Law itself than these Defendants, and will be wanting in no Case if it may be admitted, and is no Ground in Equity at all, for the Defendant by Law must at his Peril make Choice of a true and sufficient Plea: And this is a Rule in every Cause, and is a Ground of much Reason, Certainty and Good to the Subject; and, if otherwise, must be altered by Act of Parliament, and not otherwise.

"And the Complainant hath pleaded at Law to an Action of Debt upon the Judgement, brought by these Defendants Payment, whereupon these Defendants have taken Issue; and if the Complainant's own Plea be true, he need not thus to vex these Defendants, and trouble your Lordships.

"And whereas the Complainants say, They have no Remedy for their Damages at Law, because their Freight is to be paid at the Ship's Return, which never returned; their Counsel well know, That, if the Default of the Ship's not returning were in themselves, then have they no Cause of Freight; and if it were in the Defendants, the Complainants have Remedy, for then there is another Covenant broken, for the Defendants not returning the Ship within the Time; on which Branch of Covenant, the Complainants whole Damages for Freight were properly inquirable; and when Men have made Covenants and Agreements, it is too late however to seek to the Parliament to amend them: And in Truth this Complainant did give the Matter now insisted on in Evidence to the Jury, to abate the now Defendants Damages at Law; and there was, these Defendants believe, Consideration had thereof, so far as in Justice ought to be.

"Lastly, Touching the Two Thousand Pounds Costs awarded to be paid by the Complainants, the same was so awarded and received; and the Defendants did draw up a Declaration, to which the Complainants were required to plead, and refused to plead; and so the Cause in that Behalf, why a new Trial was not had, was his own Default: But these Defendants conceive that they may justly, and do insist upon it here, that they ought not to be concluded by the said Decree to go to a new Trial by Decree of that Court, that Court being disabled to examine the Matters therein complained, and having foreclosed themselves as aforesaid to examine the Matter of the said Trial; and when the Defendants shall disobey the Order of that Honourable Court ordering a new Trial, it will be then, if ever, proper for the Complainants in that Behalf to complain to that Court, in Case of Disobedience, if any be, of which there is not as yet any Complaint against these Defendants.

"All which these Defendants do aver; and humbly pray to be dismissed, with exemplary Costs, for this their unjust Vexation.

"Ol. St. John.

"Glynne.

"Maynard.

"Bulstrode Whitelock."

Order for Mr. Lock to be Comptroller of the Customs at Southampton.

"The Lords and Commons assembled in Parliament do nominate and appoint Mathew Locke Gentleman, to be Comptroller of the Customs, in the Port of Southampton, cum Membris; and that the Committee for the Navy and Customs do take Care that he be placed in the said Place accordingly."

Ordinance to bring in the Duty for Relief of the Captives at Algier.

"Ordered, by the Lords and Commons assembled in Parliament, That it be referred to the former several Committees appointed to consider of bringing in the Duty of One per Cent. for Redemption of the Captives of Algier, to call all such Persons before them that do owe any Monies upon Bonds or otherwise for that Duty, and require them to pay the One Fourth of that Duty (according to the Ordinance in that Behalf) within the Space of Forty Days next ensuing; and that such as shall not pay the said Fourth within the said Space of Forty Days as aforesaid, that the said Committee do transmit their Bonds into the Court of Exchequer, to be proceeded upon according to Law, and levied according to the Course of the said Court."

Adjourn.

House adjourned till 10^a cras.