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premisses, nor make any order touching the same, at least till all parties concerned therein had been heard thereto. (Con. Phipps.)
Die Jovis, 11 Februarii, 1702. It was ordered by the Lords that the officers of the Exchequer should bring into the House the bundle or roll in which the survey of the honor of Richmond was, which was taken in the 15th year of King James the first, the original affidavits upon which the survey was filed, the office book in which there was an entry of a survey taken of the honour of Richmond in the 7th of King Charles the first, and the survey also itself: And
[279] Die Veneris, 12 Februarii, 1702. After hearing council upon the petition and appeal of Lord Wharton, touching the order of the 15th of July, 1701, it was ordered by the Lords that a trial should be had next term, at the bar of the Court of Common Pleas, by a jury of the county of Middlesex, in an action wherein this should be the feigned issue: viz. "Whether the skins of parchment directed by the order of the Court of Exchequer of the 15th of July, 1701, to be filed, are the perfect, unaltered, exact, and entire commission and return first filed in the Court of Exchequer, in the 16th year of King James the first:" And that in such action the said Robert Squire should be plaintiff, and take upon himself the proof of the said issue, and Lord Wharton defendant; and that the said skins of parchment, or any copy thereof, should not be given in evidence in any Court whatsoever until the said trial should be over; and that the said skins of parchment which were now upon the file, by virtue of the said order of the 15th July, should not be allowed as any evidence on said trial for the plaintiff; and that the verdict to be given on such trial should be certified and returned by the Court of Common Pleas into this House. Lords Journ. vol. xvii. p. 275, 277.
20th January, 1703. Charles Bathurst, Esq. one of the parties named in the foregoing case, petitioned the House of Commons, complaining of this order of the Lords, and the House appointed a committee to enquire and report; and on the report, after some interlocutory orders, the Commons, 28th January, 1703, resolved,
That the House of Lords taking cognizance of, and proceeding on the petition of Thomas, Lord Wharton, complaining of an order of the Court of Exchequer, (viz. the order aforesaid) is without precedent and unwarrantable, and tends to the subjecting the rights and properties of all the Commons of England to an illegal and arbitrary power. And that it is the undoubted right of all the subjects of England to make such use of the said record as they might by law have done before the said proceedings of the House of Lords.—(8. State Trials, 175.)
And the Lords (27 Martii, 1704, together with the resolutions on the case of Ashby and White), resolved,
That the House of Commons taking upon them by their votes to condemn a judgment of the House of Lords, given in a cause depending before this House in the last session of Parliament, upon the petition of Thomas, Lord Wharton, and to declare what the law is in contradiction to the proceedings of the House of Lords, is without precedent, unwarrantable, and an usurpation of a judicature to which they have no sort of pretence. Lords Journ. xvii. p. 535.
[Mew's Dig. iii. 281; 3 Madd. 353: See A.-G. v. Mayor of Bristol, 1820, 2 Jac. & W. at p. 321.]
The appellants made this case: That Sir Thomas White, of London, being desirous to purchase lands to be settled upon himself for life, and afterwards to charitable uses, did accordingly advance and pay to the mayor, bailiffs, and com-
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