House of Lords Journal Volume 18: 22 January 1707

DIE Mercurii, 22 Januarii.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

Message from H. C. with a Bill.

A Message from the House of Commons, by Mr. Farrer and others:

Who brought up a Bill, intituled, "An Act to make the Ship called The Neptune Privateer (a Foreignbuilt Ship, lately bought as a Wreck) a free Ship;" to which they desire the Concurrence of this House.

Hitchcock versus Sedgwick, Report of all the Proceedings in the Cause:

The Earl of Rochester (pursuant to Order) reported from the Lords Committees, appointed to consider of the Petition and Appeal of George Hitchcock Esquire and others; and to state Matters of Fact in this Case specially, as follows; (videlicet,)

Appeal dismissed.

"That their Lordships have perused the several Petitions and Answers of Obadiah Sedgwick and George Hitchcock, and the Orders that have been made on them: And their Lordships find, that, on the 28th Day of November 1690, the House, upon reading the Petition of Appeal of the said Obadiah Sedgwick, from a Decree made the 23th Day of July 1690, in the Court of Chancery, by the Lords Commissioners of the Great Seal of England, in the Cause between the Petitioner Obadiah Sedgwick and the said George Hitchcock and others, ordered, "That the said George Hitchcock, and the others named in the said Petition, should put in their joint or respective Answers thereto."

"That, the said George Hitchcock and others having put in an Answer to the said Petition, the Cause was heard, at the Bar, the Twentieth of December following; and the House adjudged, "That the Decree complained of in the said Petition should be reversed; and that the Estate should be sold, to the Intent that, out of the Purchase-money, Rents in the Court of Chancery, and Arrears of Rent, the Petitioner Obadiah Sedgwick should be satisfied and paid all his Principal Debt of Two Thousand Two Hundred Pounds, with Interest, Costs, and Charges, as Mortgagees are usually allowed; and that the Overplus of the Money raised by such Sale, and Money in Court, and Arrears of Rent, after the said Obadiah Sedgwick paid, should be distributed amongst the other Creditors of Richard Slaney; which the Court of Chancery was to direct to be done and executed accordingly."

"That, on the 12th of November 1691, upon reading a Petition of the said George Hitchcock, William Bird, and others, Creditors of the said Richard Slaney; shewing, "That they had and were ready to prove, that the said Slaney was a Bankrupt before the making of Minshall's Mortgage, under which the said Obadiah Sedgwick sheltered himself; and praying an Explanation of the said Order of the 20th of December 1690, and for Liberty to take their Remedy at Law against the Bankrupt Slaney's Estate, without being concluded by the Sale and Distribution mentioned in the said Order;" it was ordered, "That the said Petition should be referred to a Committee, to consider of the same, and of the said Judgement; and to report their Opinion, Whether the said Petition is sit to be received or not?"

"That the Lords Committees reported, on the 17th of the same November, "That the said Petition ought not to be received." After Debate thereupon; it was ordered, "That Counsel should be heard on both Sides, at the Bar, upon this Point only, Whether the Petitioner George Hitchcock and others ought to have Liberty to try their Title at Law?"

"That, on the 21th of November 1691, upon hearing Counsel upon the said Petition of the said George Hitchcock and others, Creditors of the said Rich'd Slaney; as also on hearing Counsel for the said Obadiah Sedgwick on this Point only, "Whether the Petitioner George Hitchcock and the other Petitioners ought to have Liberty to try their Title at Law?" It was ordered, and declared, "That the said George Hitchcock and the other Petitioners should have Liberty to try their Title at Law to the said Bankrupt's Estate; and that the Words in the former Order of the Twentieth of December 1690, from the Word ["reversed"], be left out; (videlicet,) ["and that the Estate should be sold, to the Intent that, out of the Principal-money, Rents in the Court of Chancery, and Arrears of Rent, the Petitioner Obadiah Sedgwick should be satisfied and paid all his Principal Debt of Two Thousand Two Hundred Pounds, with Interest, Costs, and Charges, as Mortgagees are usually allowed; and that the Overplus of the Money raised by such Sale, and Money in Court, and Arrears of Rent, after the said Obadiah Sedgwick paid, shall be distributed among the other Creditors of the said Rich'd Slaney; which the Court of Chancery is to direct to be done and executed accordingly."]

"That, on the 4th of December 1691, upon hearing Counsel, upon a Petition of the said Obadiah Sedgwick; shewing, "That the House having adjudged, That the said George Hitchcock and other Creditors of the said Richard Slaney shall be at Liberty to proceed at Law, whereby to be at Liberty to endeavour to defeat the Petitioner of his Security, not only for the Fourteen Hundred Pounds, Part of the Two Thousand Two Hundred Pounds by him lent, without Notice that the said Slaney was a Bankrupt; but also of Eight Hundred Pounds, which was decreed to the Petitioner;" and also upon hearing Counsel for the said George Hitchcock and other Creditors of the said Richard Slaney," it was ordered, "That, in the Order of the One and Twentieth of November last, the Words following be inserted, (videlicet,) ["and particularly, whether the Deed of Distribution, dated the 14th of August 1685, was fraudulently obtained."]"

"That, on the 11th of February 1691, on reading a Petition of the said Obadiah Sedgwick; praying, "That Directions be given, that both the Issues directed in former Orders may be tried, on proper Issues;" it was referred to Mr. Justice Powel and Mr. Baron Powel, to draw proper Issues, to be tried, on the Directions in the Orders of this House, and present the same to the House.

"That, on the 22th of February, the said Judges presented Two Issues to the House, pursuant to the Order of the 11th Instant; which, being read, were agreed to by the House: And it was ordered, "That the Cause should be tried, in the Court of King's Bench, by a Jury of Midd'x, upon the said Issues; and that the Appellant should name a Defendant, and an Attorney to accept the same, and take Notice of Trial."

"That, on the Fourth of November 1692, upon reading a Petition of the said Obadiah Sedgwick; shewing, "That the said Creditors refused to try the Issue directed by the House;" and praying "the reviewing and establishing the Order made the Twentieth of December 1690, in the Cause between him and the said George Hitchcock and others;" it was ordered, "That the said George Hitchcock and the other Creditors should put in an Answer to the said Petition."

"That, on the 9th of November, upon reading the Answer of the said George Hitchcock and others put in to the said Petition, in which they took several Exceptions to the Issues settled by the Judges, as not being proper to determine the Matter in Question between them; and the said Petition and Answer were referred to a Committee, to consider of the Orders and Proceedings in this Cause in this House, and to report to the House.

"That, on the 18th of November 1692, the Committee reported, "That they had considered the said Petition and Answer, and heard Counsel thereon; and were of Opinion, That it be referred back to the Judges, to settle proper Issues between them:" Upon Consideration had thereof, the House disagreed with the Committee in this Report; and ordered, "That the Cause should be tried in the Court of King's Bench, by a Jury of Middl'x, upon the Issues delivered in by the Judges the 22th of February last, and agreed to by the House."

"That, on the 19th of November, the House being moved, on the Behalf of the said Obadiah Sedgwick, "That Joseph Sedgwick, a material Witness for him, being now on Ship-board, intending for Jamaica, may be examined on Interrogatories; that his Deposition may be made Use of at the Trial of his Cause, upon the Issues appointed by this House; and that the said George Hitchcock may cross-examine him, if he thinks fit;" it was ordered, "That the Lords Commissioners of the Great Seal of England do issue a Commission for the examining the said Joseph Sedgwick, as desired."

"That, on the 22th of November, upon reading a Petition of the said Obadiah Sedgwick; praying, "That the said Joseph Sedgwick may be examined before a Judge of the King's Bench, and the other Side to have Notice thereof;" it was ordered, "That he should be examined before the Lord Chief Justice, in order to have his Testimony made Use of at the Trial, upon the Issues appointed to be tried; and that the said George Hitchcock might cross-examine him, if he thought fit."

"That, on the Fourteenth of February 1692, on reading a Petition of the said Obadiah Sedgwick, against the said George Hitchcock and others, Creditors of the said Richard Slaney; shewing, "That the Issues directed by this House are tried;" and praying, "That the Order of this House of the 20th of December 1690 may be confirmed;" it was ordered, "That the said George Hitchcock and the other Creditors might be heard, by their Counsel."

"That, on the 8th of March 1692, on hearing Counsel, on the Petition of the said Obadiah Sedgwick; shewing, "That the Two Issues ordered by this House to be tried at Law have been accordingly tried; and that a Verdict hath been given for him in the last Issue directed;" and praying, "That the Order of the 20th of December 1690 may be confirmed;" as also upon the Answer of the said George Hitchcock and several other Creditors of the said Rich'd Slaney Bankrupt put in thereunto; setting forth, "That, on the First Issue, the Jury found, that the said Rich'd Slaney became Bankrupt Two Years before Minshal's Mortgage; and that, by the said Obadiah Sedgwick's own shewing, his Mortgage was after the Commission of Bankrupts sued out, and an Assignment of the Bankrupt's Estate made for the Benefit of his Creditors: And as to the Second Issue, the Creditors being restrained to Matter of Fact, "whether the Deed of Distribution was obtained fraudulently," neither the Court nor the Jury could come to Matter of Law, in relation to the said Obadiah Sedgwick's pretended Debt, secured by Mortgage after Bankruptcy; nor whether, by the Law against Bankruptcy, he might have a Share of the Bankrupt's Estate under the Commission; the said Second Issue was found for the said Obadiah Sedgwick;" and praying, "That the House would let him take his Remedy at Law, under the said Minshall's Mortgage;" it was ordered and adjudged, "That the said Obadiah Sedgwick's Claim to an Interest in the Bankrupt Slaney's Estate should be taken and be in the same Condition as before the Lord Jeffryes's Order for canceling the Deed of Distribution, and for Obadiah Sedgwick's re-conveying the Estate in Question; and that what the said Obadiah Sedgwick, or his Trustee Hugh Noden, hath done, in Pursuance of the said Order, should not be to his Prejudice; and also, that a Copy of the Deed of Distribution should be admitted for Evidence, as if the Original were then extant; and that the said George Hitchcock and the other Respondents should pay unto the said Obadiah Sedgwick One Hundred Pounds, for his Costs."

"That, on the 13th of the said March, on hearing Counsel, on the Petition of the said George Hitchcock and others; setting forth, "That, on hearing the Cause the Eighth Instant, it was agreed by all Parties, that no Use or Advantage should be made of the Conveyance from the Assignees to the said Obadiah Sedgwick, or his Re-conveyance to them, but that each Party should have Liberty to proceed at Law; but, by the said Order, it was not directed that the said Conveyance, as well as Re-conveyance, should be set aside; and praying that the same might be done." "Accordingly Counsel was heard, on this Point, "Whether as well the Deed of Conveyance from the Assignees of the Commissioners of Bankrupts, as the Re-conveyance to them, shall be set aside;" as also Counsel for the said Obadiah Sedgwick; and, after Consideration had thereof, it was ordered, "That the Judgement of this House made the 8th Instant should be, and was thereby, confirmed; and that the Petition of the said George Hitchcock should be dismissed."

"That, on the 21th of March 1695, a Petition of the said George Hitchcock, and the other Creditors of the said Richard Slaney, against the said Obadiah Sedgwick, being offered; it was ordered, "That, on the 25th of the same March, the House would consider what was fit to be done, in relation to this Petition; but, a Prorogation happening soon after, there were no further Proceedings on the said Petition.

"That, on the 18th of March 1696, a Petition of the said George Hitchcock and the other Creditors of the said Slaney was offered to the House; setting forth, "That, by an Order of the 20th of December 1690, the House had reversed the Decree made on their Behalf by the Commissioners of the Great Seal of England; and, by subsequent Orders, had directed Two Issues to be tried; the First, "Whether the said Slaney (who was greatly indebted to the Petitioners) became a Bankrupt before the 18th of November 1684, being the Date of the Mortgage under which the said Obadiah Sedgwick claimed;" and the Second Issue, "Whether the Deed of Distribution, under which he also claimed, was obtained by him by Fraud;" and shewing, "That, the First of the said Issues being found for the Petitioners, and the latter of them for the said Obadiah Sedgwick; it was ordered, on the 8th of March 1692, on the Petition of the said Obadiah Sedgwick, That his Claim to, and Interest in, the Bankrupt's Estate should be in the same Condition as it was before the Lord Jeffreys's Order for canceling the Deed of Distribution, and for his re-conveying the Estate to the Assignees; and that what he or his Trustee had done, in Pursuance of the said Order, should not be to his Prejudice; and that a Copy of the Deed of Distribution should be admitted for Evidence, as if the Original were extant:" By which Order of the Eighth of March, the Petitioners conceived themselves at Liberty to controvert the said Deed in Point of Law, within the Construction of the Statute against Bankrupts; they being advised, that though the said Deed was not obtained fraudulently, yet that the same did not entitle the said Obadiah Sedgwick to the Bankrupt's Estate: But the said Obadiah Sedgwick, by Colour of the last mentioned Order, which did not determine any Question at Law, but only put his Claim in the same Condition it was before the Lord Jeffryes's Order, had, by undue Practices, and without any Trial at Law, got Possession of the Estate in Question, and also kept Eight Hundred Eighty-two Pounds beyond his pretended Debt, which was re-paid him, upon his and his Trustees reconveying the Bankrupt's Estate, pursuant to the Lord Jeffryes's Order: And that, though the Petitioners were advised, that the said Deed did not entitle the said Obadiah Sedgwick to the Bankrupt's Estate within the Meaning of the said Statute; yet, the House having made several Orders in this Cause, they would not presume to begin any further Suit, before they had applied to the House for Leave therein; wherefore praying, they may be at Liberty to controvert the Validity of the said Deed, without drawing into Question any of the Matters settled by the House; they being willing that the said Obadiah Sedgwick's Claim to an Interest in the Bankrupt's Estate should be in the same Condition it was before the Lord Jeffreys's said Order;" it was ordered, "That the said Petition should be rejected."

"And their Lordships further report, That they have considered the Petition of the said George Hitchcock, Richard March, Robert Mitchel, and Charles Mitchel, referred to them on the 10th Instant; praying the Reversal of a Decree made in this Cause, by the late Lord Keeper Wrighte, on the 15th of November in the Second Year of Her present Majesty's Reign; and an Order made the 29th Day of June last past, by the present Lord Keeper of the Great Seal of Engl'd, for confirming the late Lord Keeper Wright's Decree; and further praying the Explanation of the Order of this House of the Eighth of March 1692: Their Lordships are humbly of Opinion, upon a full Examination of all the Proceedings in this Cause, which are here particularly laid before your Lordships, That the said Petition is not fit to be received by this House; but ought to be rejected; it containing, in Substance, the same Matter the Petition of the said George Hitchcock and the other Creditors of the said Rich'd Slaney (of the Eighteenth of March 1696) did contain, which was rejected by this House."

Upon Report from the Lords Committees appointed to consider of the Petition and Appeal of George Hitchcock Esquire, Richard March surviving Executor of Thomas March, and Robert Mitchel and Charles Mitchel, presented to this House the Tenth Day of this Instant January, against Sarah Sedgwick, William Bird, and others; and praying "the Reversal of a Decree made in this Cause, by the late Lord Keeper Wrighte, on the Fifteenth of November in the Second Year of Her present Majesty's Reign; and an Order made the Nineteenth Day of June last past, by the present Lord Keeper of the Great Seal of England, for confirming the late Lord Keeper Wright's Decree;" and further praying "the Explanation of the Order of this House, of the Eighth of March One Thousand Six Hundred Ninety-two:"

It is this Day Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That the said Petition and Appeal of George Hitchcock, Richard March, Robert Mitchel, and Charles Mitchel, presented to this House the Tenth Instant, shall be, and is hereby, rejected.

D. Marlborough, 5000 £. per Ann. Bill:

Hodie 3^a vice lecta est Billa, intituled, "An Act for settling upon John Duke of Marlborough, and his Posterity, a Pension of Five Thousand Pounds per Annum, for the more honourable Support of their Dignities, in like Manner as his Honours and Dignities, and the Honour and Manor of Woodstock, and House of Bleinheim, are already limited and settled."

The Question was put, "Whether this Bill shall pass?"

It was Resolved in the Affirmative.

Message to H. C. that the Lords agree to it.

A Message was sent to the House of Commons, by Sir Richard Holford and Mr. Pitt:

To acquaint them, that the Lords have agreed to the said Bill, without any Amendment.

Felons, &c. Bill.

Hodie 2^a vice lecta est Billa, intituled, "An Act for repealing a Clause in an Act, intituled, An Act for the better apprehending, prosecuting, and punishing Felons, that commit Burglaries, House-breaking, or Robberies, in Shops, Ware-houses, Coach-houses, or Stables, or that steal Horses."

Ordered, That the said Bill be committed to a Committee of the whole House, presently.

Then the House was adjourned during Pleasure, and put into a Committee on the said Bill.

After some Time, the House was resumed.

And the Lord Guilford reported, "That the Committee had gone through the said Bill; and think it fit to pass, with some Amendments."

Which were read Twice, and agreed to; and the Bill ordered to be engrossed, with the said Amendments.

Adjourn.

Dominus Custos Magni Sigilli declaravit præsens Parliamentum continuandum esse usque ad & in diem Jovis, vicesimum tertium diem instantis Januarii, hora undecima Auroræ, Dominis sic decernentibus.