House of Lords Journal Volume 19: 5 December 1709

Journal of the House of Lords: Volume 19, 1709-1714. Originally published by His Majesty's Stationery Office, London, 1767-1830.

Citation:

'House of Lords Journal Volume 19: 5 December 1709', in Journal of the House of Lords: Volume 19, 1709-1714( London, 1767-1830), British History Online https://prod.british-history.ac.uk/lords-jrnl/vol19/pp12-14 [accessed 22 December 2024].

DIE Lunæ, 5 Decembris.

Domini tam Spirituales quam Temporales præsentes fuerunt:



Arch. Ebor. Epus. Dunel. & D. Crewe. Epus. Eliens. Epus. Petriburg. Epus. Lincoln. Epus. Norwic. Epus. Cicestr.	Ds. Cancellarius. Ds. Godolphin, Thesaurarius. Ds. Sommers, Præses. Dux Somerset. Dux Richmond. Dux Grafton. Dux Beaufort. Dux Bolton. Dux Marlborough. Dux Hamilton. Dux Roxburgh. Dux Dover. March. Kent, Camerarius. Comes Pembroke. Comes Bridgewater. Comes Northampton. Comes Manchester. Comes Berkshire. Comes Rivers. Comes Stamford. Comes Sunderland. Comes Scarsdale. Comes Essex. Comes Sussex. Comes Rochester. Comes Scarbrough. Comes Orford. Comes Jersey. Comes Grantham. Comes Wharton. Comes Cholmondeley. Comes Crafurd. Comes Mar. Comes Loudoun. Comes Wemyss. Comes Leven. Comes Orkney. Comes Seafield. Comes Roseberie. Comes I'lay. Viscount Weymouth.	Ds. Delawarr. Ds. Chandos. Ds. Hunsdon. Ds. Brooke. Ds. Byron. Ds. Rockingham. Ds. Berkeley Str. Ds. Cornwallis. Ds. Haversham. Ds. Halifax. Ds. Gernsey. Ds. Hervey. Ds. Pelham.

PRAYERS.

Hitch versus Shireburn, Report of Proceedings; and of Precedents of altering Judgements given in this House:

The Lord President reported from the Lords Committees appointed to consider of the Petition of Robert Hitch Esquire, as follows; (videlicet,)

"That their Lordships have read the Judgement of this House, of the Three and Twentieth of February One Thousand Seven Hundred and Eight, in this Case; in which it doth appear, that the Judgement given in the Court of Queen's Bench was affirmed; and that the Record was remitted to the said Court, that so Robert Hitch, the Plaintiff in the Writ of Error in the Queen's Bench, might have Execution in the same Court.

"That, upon Application to that Court, by the said Mr. Hitch, for a Writ to the Archbishop of York, it did appear, that the Judgement of Reversal in the Court of Queen's Bench was, "That the Judgement in the Court of Common Pleas should be reversed; and that the said Robert Hitch should be restored to all he had lost by the said Judgement of the Court of Common Pleas;" but there was an Omission of awarding a Writ to the Archbishop. Upon which, the Court of Queen's Bench declined to make any Addition to their Judgement after the Record had been before this House. Their Lordships thereupon thought fit to desire the Attendance of the Lord Chief Justice of the Court of Queen's Bench; who, attending, acquainted them, "That the Court of Queen's Bench could have amended their Judgement, by adding the Award of the Writ; and ought so to have done, upon any Application made to them, by Motion, either before or after the Writ of Error brought in, till the same was actually transmitted into Parliament; but that, as the Case now stands, the Court of Queen's Bench cannot make the Addition requisite to make the Judgement effectual, the House having pronounced their Judgement thereupon; and that it could only be done in this House."

"Several Precedents were read, of Judgements of this House amended, in Cases of Appeals and Writs of Error, and in former Sessions as well as in the same Session of Parliament: And their Lordships observe, that some of those Amendments seemed to be more considerable than what is desired in this Case.

"The said Precedents are annexed to the Report.

"Their Lordships desire to observe to the House, that, if this Amendment be not made, the Defendant in the Writ of Error can have no Manner of Benefit of the Judgement of this House; and though the Judgement of the House be for him, he will be as much precluded of all Remedy, as if an Act of Parliament had been made against him.

"The Precedents, mentioned to be annexed to this Report, are as follow; (videlicet,)



"Pettit versus Hyde.	6th December, 1667: The House being moved, "That some Words might be added to the Judgement of the Twenty-fifth of November last, for Explanation thereof:" It is Ordered, That after ["sequestered"], be added ["and Lawrence Hyde put into Possession thereof"]; and after ["discharged"], ["and Henry Pettit put into Possession thereof, as he was before the said Sequestration"].
"Selwin versus Blakiston.	9th December, 1667, the Order of the Fifth Instant was amended, by these Words; (videlicet,) ["giving Security for Payment of Costs, and otherwise, as the said Lord Keeper shall see Cause to direct"], instead of ["giving good Security to perform such Judgement as the Lord Keeper of the Great Seal shall find meet, upon the said Hearing, to make therein; and to pay such Costs as the Court shall think fit"].
"Pitt versus Pelham.	4th January 1670, Upon Motion, it was Ordered, That the Order of the 17th of December last should run in the Words following; ["and that therefore the Lord Keeper of the Great Seal, or the Lord Chancellor, for the Time being, be, and is hereby, directed to set aside the said Dismission: And their Lordships do further adjudge, That the Heirs at Law to W'm Shirley, the Testator in the said Petition mentioned, shall forthwith, by good Assurance in Law, convey the said Testator's Lands, in Blandford, to the Petitioner Robert Pitt and his Heirs; and the Court of Chancery are to compel them so to do"]."
"Streater versus Roper.	21th February 1703, in a Writ of Error depending in this House, ["Centum"], by Mistake of the Clerk, being written instead of [Ducentarum"]: It was Ordered, That the Word ["Centum"] in the said Writ be made ["Ducentarum"]."
"Ashfeild versus Ashfeild.	21th December 1689, after hearing Counsel on both Sides, to the Explanation of the Order of the Three and Twentieth of July 1689 last Session, they agreed, That after the Word ["Spinster"] should be added ["whereby Dorcas Lady Ashfield's Jointure, by the Deed of One Thousand Six Hundred Seventyfive, is impeached, as to so much as relates to the said Jointure by the said Deed"]."
"Ashby versus White.	28 February 1703, Mathew Ashby, Plaintiff in a Writ of Error lately depending in this House, shewing, by Petition, that this House reversed the Judgement, and awarded Judgement for him, upon which he might have Judgement in the Queen's Bench; but, by reason of some Mistake in his Attorney, the Entry of the Judgement in the Journal will not warrant such Execution; and praying the said Entry may be amended, by leaving out these Words; (videlicet,) ["Et quod idem Matheus Ashby ad omnia quæ Occasione Judicii præd. amisit restituatur"], and by inserting these Words; (videlicet,) ["Et ulterius consideratum est per dictam Curiam Parliamenti nunc hic, quod prædict. Matheus Ashby recuperet versus eosdem Will'um White, Ric'um Talboys, Will'um Bell, et Ric'um Heydon, Dampna sua præd. per Jur. prædict. in Forma prædict. assess. necnon Decem Libras, pro Misis et Custagiis suis per eandem Curiam Parliamenti nunc hic eidem Matheo Ashby ad Requisitionem suam de Incremento adjudicat.; quæ quidem Dampna in toto se attingunt ad Septem-decem Libras; et prædict. Will'us White, Ric'us Talboys, Will'us Bell, et Ric'us Heydon, in Misericordia, &c."]: It was Ordered, That the Judgement of this House given in this Cause shall be altered, as desired."
"Buck versus Rawlinson.	14 February 1704, on the Petition of Robert Buck: Ordered, That the Words following be added to the Judgement of this House, of the Twelfth Instant; (videlicet,) ["and that the Parties may be at Liberty to bring their Appeal from the Court of Admiralty to a Court of Delegates."]
"Viscountess Faulkland versus Dominum Cheney.	28th February 1704, the Viscountess Dowager of Faulkland praying the Explanation of the Judgement of this House of the Twelfth of December last: It was Ordered, That the Words following be added thereto; ["and that the Respondents shall accompt with the Petitioners for the Charge of the Third Voyage; and that what shall appear to be due to the Appellants upon such Accompt shall be paid to them, with Interest, in such Manner as is directed in the Court below, as to the Accompt of the Two former Voyages."]
"Harris versus Osbalston.	13th November 1690, John Harris shewing, by Petition, that by a Judgement of this House, of the Three and Twentieth of April the last Session, Robert Osbalston ws to accompt for Eighty Pounds per Annum to him from the Death of Elizabeth Spicer, and that the Court of Chancery should take the Accompt; that, pursuant thereunto, the Master in Chancery hath prepared his Report; but the Report carries a Doubt whether the Eighty Pounds per Annum be to accompted for with or without Interest; and praying the House, either to direct Interest, or hear Counsel touching that Point only: It is Ordered, That the Master do proceed to the said Report for the Eighty Pounds per Annum, with Interest for the same."
"Phillips versus Bury.	7th February 1694, on reading a Petition of the Lord Bishop of Exeter on the One and Thirtieth of January, in relation to a Judgement of this House given on the Tenth of December, upon a Writ of Error, and hearing the Lord Chief Justice on the Fifth Instant; it was, on this Seventh, Ordered, That the Words following shall be added to the said Judgement; (videlicet,) ["and that the Plaintiff recover his Term, with his Costs and Damages"].

Judgement amended.

It is Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That in the Judgement of this House of the Three and Twentieth of February One Thousand Seven Hundred and Eight, given upon a Writ of Error wherein Sir Nicholas Shireburn was Plaintiff and Robert Hitch Esquire Defendant, after the Words ["non obstante"], and before the Words ["super quo"], these Words following be added; (videlicet,) "Et quod præd. Rob'tus habeat Breve præfat. Archiepiscopo, Ecclesiæ illius Ordinario, quod, non obstante Reclam. ipsius Nicho'i Shireburn, idon. Person. ad Ecclesiam præd. ad Præsentation. ipsius Rob'ti admittat, &c."

Message from H. C. with a Bill.

A Message was brought from the House of Commons, by Mr. Attorney General and others:

With a Bill, intituled, "An Act to prohibit the Exportation of Corn, Malt, Meal, Flour, Bread, Biscuit, and Starch, and Low Wines, Spirits, Worts, and Wash, drawn from Malted Corn;" to which they desire the Concurrence of this House.

Corn, &c. to prohibit the Exportation of, Bill.

Hodie 1^a vice lecta est Billa, intituled, "An Act to prohibit the Exportation of Corn, Malt, Meal, Flour, Bread, Biscuit, and Starch, and Low Wines, Spirits, Worts, and Wash, drawn from Malted Corn."

Hayward & al. Pet referred to Judges.

Upon reading the Petition of Margaret Hayward, Widow and Relict of William Hayward, late of Quedgley, in the County of Gloucester, Esquire, deceased, on the Behalf of herself, and of John Hayward, William Hayward, and Abinia Hayward, Younger Sons and Daughter of the said William Hayward the Father; and also of Anne Hayward, Sister of the said William Hayward, on the Behalf of herself and other Creditors of the same William Hayward; praying Leave to bring in a Bill, for the establishing and better Execution of the Will of William Hayward, deceased:

It is Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That the Consideration of the said Petition shall be, and is hereby, referred to Mr. Justice Powell and Mr. Baron Bury; who are forthwith to summon all Parties that are to be concerned in the Bill; and, after hearing them, to report to the House the State of the Case, with their Opinion thereupon, under their Hands, and whether all Parties concerned in the Consequences of the Bill have signed the Petition; and also that the Judges, having perused the Bill, do sign the same.

Amory & al. versus Lutterel.

Upon reading the Petition and Appeal of Thomas Amory Esquire, from a Decree made in the Court of Exchequer in Ireland, the Eighth Day of February One Thousand Seven Hundred and Six, and other Orders, in a Cause there depending, wherein the Petitioner, as Administrator of Katherine Amory, alias Lutterel, his late Wife, was Complainant, against Henry Lutterel Esquire and others, Defendants; and praying Relief in the Premises; and that the Defendant Lutterel may answer to the Appeal; and the Service of this Order on the Defendant's Attorney in the Court of Exchequer in Ireland may be good Service, in order thereunto:

It is Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That the Defendant Lutterel may have a Copy of the said Appeal; and shall and he is hereby required to put in his Answer thereunto, in Writing, on Monday the Sixteenth Day of January next; and that the Service of this Order upon the Defendant Lutterel's Attorney in the said Court shall be good Service.

E. of Bath & al. versus Sherwin & al.

Upon reading the Petition and Appeal of Will'm Henry Earl of Bathe, an Infant, by Sir John Stanley Baronet, his next Friend, and of Sir Thomas Clarges Baronet, and of Robert Clarges, Walter Clarges, George Clarges, Gold Clarges, and Christopher Clarges, Infants, by Dame Elizabeth Clarges Widow, their next Friend, and also of the said Dame Elizabeth Clarges, Executrix of Sir Walter Clarges Baronet, deceased, and of George Granville Esquire, Brother and Heir and sole Executor of Sir Bevill Granville Knight, deceased, against a Decree of Dismission made and pronounced in and by the High Court of Chancery, the Eight and Twentieth Day of June last past, in a Cause then depending there, wherein the Petitioners were Complainants, against William Sherwin, Anne Gibbs, Martin Bladen and Mary his Wife, Doyly Dyer, Abraham Herring, Elizabeth Meysey, Rebecca Pride, John Brady, Sir John Bennet, Thomas Williams, Anna Maria Barnadiston, and Charlotte Barnadiston, were Defendants; and praying, "That the said Decree and Dismission may be set aside, and the Petitioners relieved in the Premises; and that the Defendants below, now Respondents, may answer; and that the Service of the Order on the Respondents Clerks in Court may be sufficient Service, in order thereunto:"

It is Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That the said W'm Sherwin, Anne Gibbs, Martin Bladen, Mary his Wife, Doyly Dyer, Abraham Herring, Elizabeth Meysey, Rebecca Pride, John Brady, Sir John Bennet, Thomas Williams, Anna Maria Barnadiston, and Charlotte Barnadiston, may have a Copy of the said Appeal; and shall and they are hereby required to put in their Answer or respective Answers thereunto, in Writing, on Monday the Nineteenth Day of this Instant December; and that the Service of this Order upon the Respondents Clerks in Court shall be good Service, in order thereunto.

Gee versus E. of Jersey, Lewis & al.

The House being this Day moved, on the Behalf of Edw'd Earl of Jersey and Barbara Countess of Jersey his Wife, Edwin Lewis, and William Blakeway, Respondents to the Petition and Appeal of Richard Gee Esquire and Phillippa his Wife, "That a Day may be appointed for hearing the said Appeal:"

It is Ordered, by the Lords Spiritual and Temporal in Parliament assembled, That this House will hear the said Cause, by Counsel, at the Bar, on Wednesday the Fourteenth Day of this Instant December, at Eleven a Clock in the Forenoon.

Adjourn.

Dominus Cancellarius declaravit præsens Parliamentum continuandum esse usque ad et in diem Martis, sextum diem instantis Decembris, hora undecima Auroræ, Dominis sic decernentibus.