Thereby Suggesting

That in 1639. ●… x Effect of Mr. Eyre's 〈…〉 Bill , or Information . or 1640. the Tenants and Free holders thereof ( and of the said other Towns ) did Petition his said Late Majesty to De-afforest the said Forest of the High-Peak , for which ( as he pretends ) his Majesty was to have a Moiety of the Wasts in the said Towns , which he pretends was set out for his Majesty , & the Free-holders and Tenants the other Moiety , in lieu of their Right of Common . And that some Forty or Fifty Years ago , there had been some Agreements made to that purpose : And that some Commission had issued out of the Court of Dutchy , to distinguish and set out their respective Moieties accordingly . And therefore Prayed to have a Moiety of the Wast of these three Towns , containing above Three Thousand Statute Acres to be set out for him , and to have an Execution of the said pretended Agreement , by Decree of the said Court of Dutchy .

That so great Improvements had formerly been made for the Crown , ●he now Appellants Answer to that Information . out of the Wasts of the said three Towns ; That there was no Surplusage of Common , and that the Inhabitants Purchased back part of those Improvements , from the Crown , and did let the same lye open and used as Common , in regard of the straitness of the Commons , nor had they been troubled with Deer , or Forest-Laws , or ever Petition'd for any De afforesting ; But were more Losers than Gainers by the De-afforestation . And positively insisted that there never was any Agreement made by any of the Free-holders , or Tenants of any of the said Towns of Hope , Bradwall , or Wormhill , or any on their behalf , Thaat any Part thereof should be Inclosed , or any Colour or Reason for any such Pretence or Agreement : there not being in truth , Common sufficient for the Free-holders , and Tenants thereof .

That the said Cause being thereupon at Issue , November , 7. 1683. and the Appellants having fully prov'd their Case , and by Ancient Records and Examinations , having manifestly differenced those three Towns from the other Towns within the said Forests , there being no Return of any Commission for a Moiety of the Wasts or Commons of these three Towns of Hope , Bradwall , and Wormhill , as there was for several other of the Towns . But on the Contrary , full and positive proof , That there had formerly ( many Generations before ) been found Improvements out of the Wasts belonging to these three Towns , Besides which there was not Common sufficient left in the Wasts belonging to those three Towns , for the Free-holders and Tenants . And that thereupon the Jury's impanell'd by the Sheriff , Pursuant to the said Commissions , which issued out of the Dutchy above forty years ago , tho' they spent ten days in the Execution of the said Commission and Inquisition thereupon , were so far from Consenting to have a Moiety set out for the King , That they absolutely refused so to do .

The said Cause came to be heard before the Chancellor of the Dutchy , assisted by the Lord Chief Justice Jones , and three Barons of the Exchequer ; and after two days spent in hearing thereof , the main Question being , Whether the Free-holders of the said three Towns of Hope , Bradwall , and Wormhill , had made such Agreement as was by the said Mr. Eyre the Relator pretended , for the setting out and improving of a Moiety of the Wasts belonging to the said three Towns or not ? And if an Agreement , how far the same was proper to be decreed in Equity ? The said Chief Justice and three Barons then declared , That the said Relator had no sufficient Evidence of any such Agreement as was by him pretended , whereon for the Court to ground a Decree . And therefore Advis'd , That before any further Proceedings should be had in the said Cause , That there should be a Tryal at the Exchequer-Bar the then next Easter Term , by a Middlesex Jury , on this Issue — Whether the said Free-holders and Tenants of the said three Towns of Hope , Bradwall , and Wormhill , had made any such Agreement as was Suggested , or not ? And if an Agreement should be proved and found , Then the Court would Consider how far the same was fit to be Decreed ?

That the Relator declining a Tryal ( as having too much cause to fear , H●llary , 1673. no such Agreement can ever be proved ) moved the Chancellor for a Re-hearing . And in April and May following , the Cause was Reheard , the Chancellor being assisted with three Barons only , the Lord Chief Justice Jones his Assistance being not desired . April 29. 1684.

That on the Re-hearing , the Relator had no way bettered or altered his Case from what it was at the first hearing : And altho' the Lord Chief Justice Jones had as aforesaid , and the said Baron Atkins after both Hearings , declared their Opinions and Advised the Chancellor that no Decree ought to be made upon the said pretended Agreements , or any further Proceedings to be grounded thereon , without a Tryal at Law first had , whereon to Establish a Decree .

Yet the Chancellor on the Third day of June last , J●●● 3. 1684. without any further Hearing or Assistance , or Tryal had , Pronounced a Deree for the said Mr. Eyre the Relator , to have a Mojety of the said Commons , on a Survey which he ( upon a Commission ex parte ) had before that time caused to be taken , whereby he allotted in some of the said Towns four parts in five , for a pretended Moyety , And that the Appellants should sence against his part , and pay full Costs , tho the Appellants had clear Evidence by Records and Credible Witnesses against any Agreement or Presumption thereof .

That the said Decree ( as is humbly Conceived ) is contrary to the Rules of Equity and Justice , It being not only to Establish an Agreement without , but against Evidence , and to Decre the Execution of a pretended Agreement supposed to be made near fifty years ago , according to which in all this time there hath never been any Enjoyment , Execution , or Performance , and against which there is full and plain Evidence : And yet by this Decree , the Appellants are to have their Inheritances bound , And are to be for ever barred from Tryal of their Right ( tho' never so Apparent ) And must lose their Common in above Three Thousand Statute Acres , must sence from the Relator ( which would Cost them above half the value of their Tenements ) and must yield four fifth parts for a Moiety , and pay him full Costs for defending their own Right , or otherwise lye all their Lives in the Goale for disobedience to the said pretended Decree , to the utter Ruine of many of them and their Families , tho' near Five Hundred in number , and of all their Estates in the said Towns .

That the said Proceedings in the said Cause ( in the manner of them ) are , as is humbly conceived , Unpresidented , and the said Decree manifestly Erroneous and Unjust . And therefore they have humbly Appealed from the same , to the Right Honourable the Lords in Parliament . And do most humbly Pray their Lordships Consideration thereupon , and that Right may be done .

The Relator ( and now Respondent ) Mr. Erre , doubting ( as it seems ) the Justice of his Cause , and whether he can maintain the said Decree upon the Merits , By his Answer to the said Petition of Appeal , doth insist , That the King's Attorney , and the Queen Dowager's Attorney and Trustees , being Parties with him , in the Information of the Dutchy , ought also to have been made Defendants to the Appellants Petition of Appeal .

In the Original of the Cause in the Dutchy , it might be reasonable to Insist they should be made Parties , That at the Hearing of the Cause it might appear how far the King , or Queen , or her Trustees were concerned , least any thing might be done in the said Cause , to the Prejudice of their Right or Interest , without their being heard . But when the said Cause came to Hearing , it did fully Appear by the Relator Eyre's own Grants and Evidence . That the Crown , or the Queen Dowager , or her Trustees , were in no sort whatsoever , concerned in any wise : The Lands and Right of the Crown , as also of the Queen and her Trustees , being absolutely Granted away to the Relator and his Heirs in Fee-Simple . And thereupon the very Decree made in the Dutchy , is only for the Benefit of Mr. Eyre the Relator , and nothing at all Ordered ( Pro or Con ) in reference to the Crown , or her said Majesty and her Trustees .

The Appellants Petition is only against the Decre made for Mr. Eyre the Relator , And they are yet to learn why they should make those Persons Parties , for or against whom there is no Order or Decree , and who are no ways concerned in the Decree that is Appealed against , whether it stand Confirmed or be Reversed . It being Agreed on all sides , That the Lands Mr. Eyre hath already obtained ( and which are not in question in this 〈◇〉 are Abundantly more than Sufficient to Answer the Fee-farm Rent Reserved to the Crown in all Events .