JOhn Reed of Mitton , Esquire , Deceas'd , having Mortgaged the two Meadows in Question , ( worth 100 l. per Annum ) to his Sister Katherine Reed , for 99 Years , from the 1st . of April , 1612. for securing the Payment of 500 l. and Interest at the Rate of 10 l. per Cent . as Interest then was , the said John Reed for 500 l. more , by Deed dated the 22d . of May , 16 Jac . 1. 1618 made the said term of 99 Years in the Meadows absolute to Katherine , the residue of which Term , by the Will of the said Katherine ; and by several mean Assignments in pursuance of that Will , and a constant Possession pursuant thereunto , and by the Consent and Approbation of the Defendant , Richard Reed the younger , and long after his Pretences ( which if true , amount but to a Trus● ) came to be vested in the Defendants , Gregory and Wytherstone on the 30th . of November , 1674. in Trust for the said William Reed , as to all the Profits of the said Meadows , except 20 l. per An. which 20 l. per An. was given to the Poor of Breedon , by the said Katherine Reed , during the said Term .

In September , 1675. the said William Reed ( being in Possession of the Meadow , ) made his last Will and Testament in Writing , and thereby gave all his Goods and Chattels , after his Debts and Legacies paid , to the Appellant Elizabeth his then Wife , and in February following D●ed , whereby the said Elizabeth was intitled to all the Profits of the Meadows , except 20 l. per . An. for the residue of the 99 Years , and depending thereupon , paid 200 l. more than all William's other personal Estate , before she heard of any pretence of the Defendants .

But the said Gregory and Wytherstone without any direction from the said William Reed for so doing , in breach of the Trust repos'd in them , made a Deed of Declaration , that they stood possess'd of the Meadows for the residue of the 99 Years from the 1st . of November , 1679. in Trust for the Defendant Reed .

And the Defendant Reed having exhibited a Bill in Chancery against the said Elizabeth , to compel her to Assign all her Interest in the Meadows in Question , to him , and she having exhibited a Bill against him , and the other Defendants , Gregory and Wytherstone , to compel them to Assign to her ; it was Decreed the 26th of June , 1680. That the said Elizabeth being then in Possession of the Meadows , should Assign all their Interest to the now Defendant Reed , and her Bill against him , and the other Defendants , Gregory and Wytherstone , to compel them to Assign to her , was dismiss d , and the Appellant , Walter Williams , and she inter-marrying before she had Assign'd , they were both committed to the Prison of the Fleet , and there forc'd to Assign all their Interest in the Meadows to the Defendant Reed for nothing .

From this Decree in 1680. the said Walter Williams , and Elizabeth Appeal'd to your Lordships , and from another Decree made in 1639. which though it was Erroneous , and could never be put in Execution , yet was partly made a Colour for the Decree in 1680. and the Cause upon the said Appeal was appointed to be heard before your Lordships the 14th . of November , 1685. but upon the Defendant Reed's pretending he could not be ready , the Appellant consented , that the Cause should be put off to the 24th . of the said Month , before which Day , the Parliament was Adjourn'd , or Prorogued , and afterwards Dissolv'd , since which time , the Appellants could not procure the said Appeal to be brought to Hearing until the 26th . of March , 1689.

But the Appellant , Walter Williams , having Notice some time before that Day , that the said Sir William Gregory was chose a Member of the House of Commons , he apply'd himself to the House of Commons , for their Leave to proceed against the said Sir William Gregory upon the said Appeal , but the House of Commons would not give leave , though , as the Appellant was inform'd , the House would have given Leave , if the said Sir William Gregory would have ask'd it himself , but that he would not do , though the Appellant inform'd both him and the other Defendant Reed several days before the Hearing , that he durst not proceed without the Leave of the House of Commons , and the Appellant on the said 26th . of March , 1689 , by his Council , pray'd your Lordships , that the Cause upon the Appeal might be Adjourn'd for a Fortnight , to see , if in the mean time , he might get the Leave of the House of Commons , or else , that the Matter might rest until such time as Sir William were not a Member of the House of Commons , but the Defendant's Council press'd your Lordships to dismiss the said Appeal , if the Appellants would not then proceed , and to induce your Lordships thereunto , they affirm'd , that Sir William Gregory had releas'd to the Defendant Reed , and that therefore there wa● no necessity for the Appellants to proceed against Sir William Gregory , though in Truth , Sir William had not then releas'd , as himself afterwards confess'd , though he had made a Declaration contrary to the Trust repos'd in him , and if he had releas'd , that did not b●r the Appellant's from their Appeal against him , but h●d been a further aggravation against him , as being a further breach of Trust ; yet nevertheless they prevailed with your Lordships to dismiss the said Appeal , because the Appellants durst not then adventure to proceed without the leave of the Commons .

Afterwards , upon the Appellants representing to your Lordships what great differences formerly hapned between both Houses in the Case of Sherley and Fagg ; for Sherley's proceeding in an Appeal against Fagg , then a Member , without the leave of the Commons ; and that it might have been made use of to have raised the like differences again , in case the Appellants had proceeded against Sir William Gregory , without the leave of the Commons , which might have been very prejudicial to the Government at that time , therefore your Lordships retained the said Appeal ; and because it was then so near the end of the Session , as the Defendants could not have timely notice if your Lordship● had appointed a short day for hearing : and in regard the Appellants had been so long delay'd , your Lordships , by O●der of the 3d of January , 1690. referred the said Appeal to the Barons of the Exchequer , to be heard and determined .

Whereupon the Appellants , on the 23d . of January moved the Barons of the Exchequer to appoint a day for hearing the said Appeal ; at which time Baron Lechmore opposed it , and declared he thought your Lordships 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 Causes next after Hillary-Term last . But afterwards , upon the Defendant Reed's Affidavit of his being an old Man , and living 100 mile from London , the Barons so far indulged him , as upon his request to put off the Cause several times , and to agree to his own time for hearing thereof . And on the 26th of May Councel on both sides were heard before the Barons , upon the said Appeal : But the Lord Chief-Baron being that day obliged to attend in the House of Lords , he could not stay to hear the Proofs read , and therefore the Cause was adjourned for a further hearing until the 15th of June , 1691. on which day Councel for both sides appearing , the Councel for the Defendant insisted upon it , That your Lordships had not power to delegate , and that your Lordships Order of Reference was obtained by surprize : and Mr. Baron Lechmore repeating his former opinion , That your Lordships had not power to delegate , and protesting against hearing the Cause , Mr. Baron Turton , though with great difficulty , declared himself of the same opinion : So the Barons being equally divided , Two for hearing , and Two against it , the Cause was no further heard , nor any Judgment given .

The Appellants conceive your Lordships may delegate any Cause before you , except Causes upon Writs of Error to any of the Judges , for these Reasons :

1. For that the Appellants conceive , That the King is always either virtually or personally present in the House of Lords in Parliament assembled , and that there he is in his highest Judicial Capacity , and therefore the Orders of the House of Lords are in the eye of the Law the Orders of the King and Lo●ds , and the King may delegate in all Temporal Causes by the Common-Law . Bract . 108.412 .

2. For that what hath been the Common Usage of the Kingdom , is the Law of the Kingdom ; and that Causes have been referr'd by Order of the House of Lords , time out of mind , sometimes to the Chancellor and some of the Judges , and sometimes to some of the Judges only ; and that as frequently to determine the matter , as to report to the House , as appears by the Parliament-Rolls and Jou●nals hereafter mentioned ; viz. 3 H. 5. n . 18. Ibidem , n . 49. 8 H. 6. n . 45. Lords Journals 28 29 of May , 1624. 17 No. 1666. 29 No. 1664. 24 Octob . 1667. 25 March , 1669 , &c. And the reason thereof may be grounded upon what is cited in Cooke's Institutes , fo . 11. out of the ancient Treatise , De modo tenendi Parliamenti . viz. The Parliament ought not to be ended while any Petition remaineth undiscuss'd , or at least to which a determinate Answer is not given ; and therefore such Causes as cannot be determined in the House of Lords sitting the Parliament , ought rather to be referred to competent Judges , than that Justice should be delay'd until the next meeting of the Parliament .

If it be objected , That the Lords having once dismissed the Appeal , it ought not to be retained , because if the Lords alter their Orders , there will be no end of business :

In answer 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 Session , or in another Parliament , see 21 E. 3. 46. Broo . Tit . Error 66 , 68. Crompt . Jurisdiction , fo . 12. Lord Hollis's Case stated , fo . 65. which last was as great a Champion for the Jurisdiction of the Lords , as any whatsoever .

If it should pass for a standing Rule , That all Orders of the Lords House should be perpetually binding , and not alterable , tho grounded upon false P●oofs or Informations , there will be those that will not fail to invent , affirm , and sweir such false suggestions , as will require time to disprove ; and if it should not be admitted to disprove them , I doubt we may soon bid farewell to all Justice .

And as to the Objection that was made , That if the Barons had heard the Cause in hand , and made a Decree therein , they could not have put it in execution : It is conceived , That if they could not , yet those that then should have the Custody of the Great Seal ought to have put their Decree in execution ; for there are many Presidents in many Reigns , That the King out of Parliament hath referred Chancery-Decrees to some of the Judges and the Chancery hath always pursued the Opinion and Judgment of those Judges , à fortiore . Therefore if the King in Parliament refers any Appeal from Chancery-Decrees , the Chancery ought to pursue the Opinion and Judgment of those Referees ; the Reference of the House of Lords being the King's Reference in his Supreme Judicial Capacity , as is afore-shew'd .

It is said , That the Prorogation hapning before the Cause was throwly heard , determined the Power given the Barons , in case they had any by your Lordships Order . As to which , much may be said against that opinion in all Cases of this nature : but there 's a particular reason in this Case , that the Barons Power should not be determin'd ; and that is this :

This Cause was appointed to be heard , and should have been heard the sitting after Hillary-Term ; and the Defendants by their Councel , on the 10th of February , pray'd it might be put off until Easter-Term , and agreed to hear it then ; and upon that offer and request , the Cause was put off until the first Monday in Easter-Term : And afterwards , on the first of May , the Defendant Reed pretending extraordinary business , that he could not come to London by the first Monday in Easter-Term , the Defendants by their Councel pray'd , That the hearing of the Cause 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 Jurisdiction , in case the Jurisdiction they had by your Lordships Order did determine by Prorogation .