House of Lords Journal Volume 24: February 1733, 1-10

February 1733, 1-10

DIE Jovis, 1^o Februarii.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

E. Pembroke takes his Seat.

Henry Earl of Pembroke and Montgomery fat first in Parliament, after the Death of his Father Thomas Earl of Pembroke and Montgomery; having, at the Table, taken the Oaths, and made and subscribed the Declaration, and also taken and subscribed the Oath of Abjuration, pursuant to the Statutes.

Sir J. Rudd, Leave for a Bill to dissolve his Marriage.

Upon reading the Petition of Sir John Rudd Baronet; praying Leave to bring in a Bill, to dissolve his Marriage with Lettice Vaughan, and to enable him to marry again:

It is Ordered, That Leave be given to bring in a Bill, as desired.

Murphy against Brown:

The House being informed, "That Richard Brereton attended, in order to deliver in some Papers, in the Cause wherein Samuel Murphy is Appellant, and William Brown Senior and William Brown Junior are Respondents:"

Papers proved

He was called in; and delivered, at the Bar, the said Papers; and attested upon Oath, "The same were true Copies, he having examined them with the Originals in the proper Office in Ireland."

And then he was directed to withdraw.

Baird, to enter into Recognizance for Denham.

The House being moved, "That Mr. James Baird Merchant may be permitted to enter into a Recognizance for Archibald Denham, upon his Appeal depending in this House; he being in Scotland:"

It is Ordered, That the said James Baird may enter into a Recognizance for the said Appellant, as desired.

Welsbourne Hastings, &c. Lands in, to enclose, Bill.

The Earl of Northampton reported from the Lords Committees to whom the Bill, intituled, "An Act for enclosing several large Common Fields, within the Parishes of Welsbourne Hastings and Newbold Pacy, in the County of Warwick," was committed: That they had considered the said Bill, and examined the Allegations thereof, which they found to be true; that the Parties concerned had given their Consents; and that the Committee had gone through the Bill, and made several Amendments thereunto."

Which, being read Twice by the Clerk, were agreed to by the House.

Ordered, That the said Bill, with the Amendments, be engrossed.

Bp. of Ely against Dr. Bentley, in Error.

Counsel (according to Order) were called in, to be further heard, in the Cause wherein the Lord Bishop of Ely is Plaintiff, and Doctor Bentley Defendant.

And the Counsel on both Sides having been fully heard, touching the 42d, 43d, 44th, 45th, 46th, 47th, and 48th Articles; the same relating one to the other:

They were directed to withdraw.

Proposed, "That the Prohibition do stand, as to those Seven Articles."

After Debate;

The Question was put, upon the said Proposition.

And it was Resolved in the Affirmative.

Ordered, That the further Consideration of this Cause be adjourned to Monday next.

Adjourn.

Dominus Cancellarius declaravit præsens Parliamentum continuandum esse usque ad & in diem Lunæ, quintum diem instantis Februarii, hora undecima Auroræ, Dominis sic decernentibus.

DIE Lunæ, 5^o Februarii.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

Sheldon's Petition referred to Judges.

Upon reading the Petition of Dormer Sheldon Clerk, and Robert Elliot Esquire and Susanna his Wife, on Behalf of themselves and of Francis Sheldon Esquire, a Lunatic; praying Leave to bring in a Bill, for Exchange of an Estate in the County of Worcester, for another in the County of Gloucester.

It is Ordered, That the Consideration of the said Petition be, and is hereby, referred to Mr. Justice Fortescue Aland and Mr. Justice Denton; with the usual Directions, according to the Standing Orders.

Prestwood, &c. Petition referred to Judges.

Upon reading the Petition of Thomas Prestwood Esquire, on Behalf of himself and his Three Infant Daughters; praying Leave to bring in a Bill, for Sale of a sufficient Part of an Estate in the County of Devon, to raise and pay off the Sum of One Thousand Pounds, and Interest now due for the same:

It is Ordered, That the Consideration of the said Petition be, and is hereby, referred to Mr. Justice Denton and Mr. Baron Comyns; with the usual Directions, according to the Standing Orders.

Hopkins, Leave for a Bill, to enclose Common's in Barston.

Upon reading the Petition of Edward Hopkins Esquire, Lord of the Manor of Barston, in the County of Warwick, and others; praying Leave to bring in a Bill, for enclosing Commons, in the Parish of Barston:

It is Ordered, That Leave be given to bring in a Bill, as desired.

Welsbourne Hastings, &c. to enclose Lands in, Bill.

Hodie 3^a vice lecta est Billa, intituled, "An Act for enclosing several large Common Fields, within the Parishes of Welsbourne Hastings and Newbold Pacy, in the County of Warwick."

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

It was Resolved in the Affirmative.

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

To carry down the said Bill, and desire their Concurrence thereunto.

Fitzgerald against Eustace:

The House was informed, "That Richard Brereton attended, in order to deliver in certain Papers and Pleadings, in the Cause wherein Maurice Fitz Gerald Gentleman is Plaintiff, and Christopher Eustace Respondent."

Pleadings proved.

He was thereupon called in; and delivered, at the Bar, the said Papers and Pleadings; and attested upon Oath, "The same were true Copies, he having examined them with the Originals in the proper Offices in Ireland."

Austen against Flack: Pleadings proved.

The said Brereton likewise delivered in, at the Bar, certain Pleadings and Proceedings, in the Cause wherein Thomas Austen Gentleman is Plaintiff, and Anne Flack Widow Respondent; and made the like Attestation.

And then he was directed to withdraw.

Bishop of Ely against Doctor Bentley, in Error.

Counsel (according to Order) were called in, to be further heard, in the Cause wherein the Lord Bishop of Ely is Plaintiff, and Doctor Bentley Defendant.

And the Counsel for the Plaintiff offering to waive the 49th, 50th, and 51st Articles:

It was agreed by the House, "That the Prohibition should stand, as to those Three Articles."

Then the Counsel on both Sides were fully heard, upon the 52d, 53d, 55th, 56th, 57th, and 58th Articles, they being relative to each other; but as to the 54th Article, the Plaintiff's Counsel offered to waive it.

And being withdrawn:

It was proposed, "To order, that the Prohibition do stand, as to those Six Articles."

Which being objected to:

It was moved, "That a Consultation be granted, with respect to the 52d Article."

After Debate;

The Question was put, "Whether the Prohibition shall stand, as to the said 52d Article?"

It was Resolved in the Negative.

Ordered and Adjudged, That a Consultation be granted, with respect to the Fifty-second Article.

Ordered and Adjudged, That a Consultation be likewise granted, with respect to the Fifty-third Article.

Agreed, That the Prohibition do stand, as to the Fifty-fourth, Fifty-fifth, and Fifty-sixth, Articles.

Then, after Debate in relation to the Fifty-seventh Article;

The Question was put, "Whether the Prohibition shall stand, as to that Article?"

It was Resolved in the Negative.

Ordered and Adjudged, That a Consultation be granted, with respect to the said Fifty-seventh Article.

Ordered and Adjudged, That a Consultation be likewise granted, as to the Fifty-eighth Article.

Then it was moved, "That the further Hearing of this Cause be adjourned till To-morrow."

But the same being objected to:

The Question was put, upon the said Motion.

And it was Resolved in the Negative.

Then the Question was put, "Whether the further Hearing of this Cause shall be adjourned to Wednesday next?"

It was Resolved in the Negative.

Ordered, That the further Hearing of this Cause be adjourned to Thursday next.

Browns Petition against Murphy put off.

The House being moved, "To put off the Consideration of the Petition of William Browne Senior and William Browne Junior, Respondents to the Appeal of Samuel Murphy, which is appointed for Wednesday next, to a further Day:"

It is Ordered, That the Consideration of the said Petition be put off to Friday next.

Adjourn.

Dominus Cancellarius declaravit præsens Parliamentum continuandum esse usque ad et in diem Jovis, octavum diem instantis Februarii, hora undecima Auroræ, Dominis sic decernentibus.

DIE Jovis, 8^o Februarii.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

Sommers against Goswill.

The Answer of Dorothy Goswill Widow, to the Appeal of Nicholas Sommers Merchant, was brought in.

Campbell to enter into a Recognizance for the City of Edinburgh;

The House being moved, "That John Campbell Gentleman may be permitted to enter into a Recognizance for the Magistrates and Town Council of Edinburgh, upon their Appeal depending in this House:"

It is Ordered, That the said John Campbell may enter into a Recognizance for the said Appellants, as desired.

and Fallon for Plunket.

The like Motion and Order, for Remy Fallon of The Middle Temple Gentleman to enter into a Recognizance for Justin Plunket Esquire, upon his Appeal; he being in Ireland.

Barston Commons for enclosing, Bill:

The Earl of Oxford presented to the House, pursuant to the Order of Monday last, a Bill, intituled, "An Act for dividing and enclosing the Common Fields and Common Meadows, in the Parish of Barston, in the County of Warwick."

And the same was read the First Time.

E. Harborough introduced:

Philip Earl of Harborough, claiming by virtue of a special Limitation contained in a Patent granted to Bennet late Earl of Harborough, bearing Date the 8th of May in the 5th Year of the late King, was this Day, in his Robes, introduced, between the Lord President and the Earl of Winchilsea, also in their Robes; the Gentleman Usher of the Black Rod, Garter King of Arms, the Lord Great Chamberlain, and the Deputy Earl Marshal, preceding.

His Lordship presented his Patent to the Lord Chancellor, on his Knee, at the Woolsack; who delivered it to the Clerk; who read the same, at the Table.

His Writ of Summons was also read, as follows;

His Writ of Summons.

"Georgius Secundus, Dei Gratia, Magn. Britann. Franc. & Hib'niæ Rex, Fidei Defensor, &c. Charissimo Consanguineo Nostro Ph'o Comiti de Harborough, Salutem. Cum nuper, de Avisamento & Assensu Concilii Nostri, pro quibusdam arduis & urgentibus Negotiis, Nos, Statum & Defensionem Regni Nostri Magn. Britann. & Ecclesiæ concernentibus, præsens Parliamentum Nostrum, apud Civitatem Nostram Westm. Vicesimo Octavo Die Novembris, Anno Regni Nostri Primo, teneri ordinaverimus; & ibidem, cum Prælatis, Magnatibus, & Proceribus dicti Regni Nostri, Colloquium habere & Tractatum; quod quidem Parliamentum Nostrum abinde, per separales Prorogationes & Adjournationes, usque ad et in Decimum Sextum Diem hujus instantis Januarii prorogatum & adjournatum fuerat, apud Civitatem Nostram præd. ibidem tunc tenendum & prosequendum; vobis, sub Fide & Ligeantia quibus Nobis tenemini, firmiter injungendo mandamus, quod, consideratis dictorum Negotiorum Arduitate & Periculis imminentibus, cessante Excusatione quacunque, dictis Die & Loco personaliter intersitis, Nobiscum, ac cum Prælatis, Magnatibus, & Proceribus prædict. super dictis Negotiis tractatur. vestrumque Consilium impensur.; & hoc sicut Nos & Honorem Nostrum, ac Salvationem et Defensionem Regni & Ecclesiæ præd. Expeditionemque dictorum Negotiorum diligitis, nullatenus omittatis.

"Teste Meipso, apud Westm. Duodecimo Die Januarii, Anno Regni Nostri Sexto.

Bisse & Bray."

Which being done; the said Earl came to the Table, and took the Oaths, and made and subscribed the Declaration, and also took and subscribed the Oath of Abjuration, pursuant to the Statutes; and was then placed, in his due Place, on the lower End of the Earls Bench.

Mr. Baillie's Appeal, Committee revived.

The House being moved, "That the Committee to whom the Appeal of John Baillie of Walstoun, a Lunatic, by Anthony Hammond Esquire, his Committee, stood committed, be revived:"

It is Ordered, That the said Committee do stand revived accordingly; and that their Lordships do meet on Tuesday next come Sevennight, to take the said Appeal into Consideration.

Goswill against Sommers:

Upon reading the Petition and Appeal of Dorothy Goswill Widow; complaining of Part of a Decree of the Court of Chancery, of the 18th Day of November last, made in certain Causes, wherein Nicholas Sommers Merchant was Plaintiff, and the Appellant Defendant, et è contra; and praying, "That such Part of the same as is complained of may be reversed; and that this House will make such Decree, and give the Appellant such Relief, as shall be reasonable:"

Cross Appeal.

It is Ordered, That the said Nicholas Sommers may have a Copy of the said Appeal; and he is hereby required to put in his Answer thereunto, in Writing, on or before Thursday the 22d Day of this Instant February.

Bishop of Ely against Doctor Bentley, in Error.

Counsel (according to Order) were called in, to be further heard, in the Cause wherein the Lord Bishop of Ely is Plaintiff, and Doctor Bentley Defendant.

And the Counsel on both Sides having been fully heard, upon the 59th, 60th, and 61st Articles; they falling under the same Consideration:

And being withdrawn:

It was proposed, "To direct, that the Prohibition do stand, as to those Three Articles."

After Debate;

The Question was put thereupon.

And it was Resolved in the Negative.

Ordered and Adjudged, That a Consultation be granted, with respect to the Fifty-ninth, Sixtieth, and Sixty-first Articles.

Then the Counsel were again called in; and those for the Plaintiff acquainted the House, "That, in order to give their Lordships no further Trouble, they were willing to waive the Remainder of the Articles: But, as they began with the Sixth Article, they desired the Direction of this House, with respect to the Five foregoing ones."

Agreed, That the Prohibition do stand, as to the Three last Articles; the same having been waived.

Then the Counsel for the Defendant acquainted the House, "That as the first Four Articles were by Way of Preamble only, they would not desire any Direction concerning them; but, there being a Charge contained in the Fifth Article, they prayed, That the Prohibition might be directed to stand, as to that Article; and that the Defendant might be considered with respect to Costs."

Whereupon the Counsel were directed to withdraw.

Ordered and Adjudged, That the Prohibition do stand, with respect to the said Fifth Article; but that a Consultation be granted as to the First Four Articles, the same being introductory to the Charges contained in the subsequent ones.

Ordered, That the further Consideration of this Cause be adjourned till To-morrow; and that One Counsel of a Side be then heard, as to the Point of Costs only; and that the Judges do attend.

Adjourn.

Dominus Cancellarius declaravit præsens Parliamentum continuandum esse usque ad et in diem Veneris, nonum diem instantis Februarii, hora undecima Auroræ, Dominis sic decernentibus.

DIE Veneris, 9^o Februarii.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

Evelyn & al against Evelyns.

The Answer of Edward Evelyn Esquire and James Evelyn his Son (an Infant, by the said Edward Evelyn, his Father and next Friend) to the Appeal of Anne Evelyn and others:

Legh again Warrington

As also, the Answer of George Earl of Warrington, to the Appeal of George Legh Esquire;

Were brought in.

Barston Comons for enclosing, Bill

Hodie 2^a vice lecta est Billa, intituled, "An Act for dividing and enclosing the Common Fields and Common Meadows, in the Parish of Barston, in the County of Warwick."

Ordered, That the said Bill be committed to the Consideration of the Lords following; (videlicet,)

Their Lordships, or any Five of them; to meet on Thursday next, at Ten a Clock in the Forenoon, in the Prince's Lodgings near the House of Peers; and to adjourn as they please.

Murphy against Brownes.

Ordered, That the Consideration of the Petition of William Browne Senior and William Browne Junior, Respondents to the Appeal of Samuel Murphy, which is appointed for this Day, be adjourned to Monday next.

Rowe et al. against Brigadier Steuart et Ux.

Ordered, That the Cause wherein Henry Rowe and Elizabeth his Wife, and James Steuart Esquire, are Appellants, and Brigadier William Steuart and Mary his Wife Respondents, which stands to be heard next in Course, be heard on Wednesday next; and the other Causes already appointed to come on in Course on Cause-days.

Bishop of Ely against Doctor Bentley, in Error.

This Day being appointed, for the further Consideration of the Cause wherein the Lord Bishop of Ely is Plaintiff, and Doctor Bentley Defendant; and to hear One Counsel of a Side, as to the Point of Costs only:

The Counsel were accordingly called in.

And the Defendant's Counsel was heard at large, as to that Point; and concluded with praying, "That the Defendant may have Costs awarded him."

Then Counsel for the Plaintiff was heard, in Answer to what was offered on the other Side.

And the Defendant's Counsel having replied:

They were directed to withdraw.

Proposed, "That this Question be asked the Judges; (videlicet,)

"Supposing an Action upon a Prohibition brought in the Court of Common Pleas, and the Plaintiff obtains a Judgement for a Prohibition to stand, and Costs taxed for him, and a Writ of Error be brought in the Court of King's Bench, which Court reverses the Judgement in Part, and affirms it as to the rest; whether the Plaintiff in that Case is entitled to Costs?"

And the said Question being put to the Judges accordingly:

The Lord Chief Baron delivered the unanimous Opinion of the Judges present; "That the Plaintiff would be entitled to Costs."

Proposed, "Another Question be put to the Judges, (videlicet,) Whether, in the Case in the Question before stated, wherein the Judgement is reversed in Part, and affirmed in Part, the Costs are to be reduced, or the Whole to stand?"

Whereupon the Lord Chief Baron, having again conferred with his Brethren, acquainted the House, That it was a Matter of great Consequence, and depended on Precedents in the King's Bench; and therefore desired Time to consider of it."

After Debate;

An Objection being made to the putting the said Question to the Judges:

The Question was put, "Whether the Judges shall attend this House on Thursday next, to give their Opinions upon the said proposed Question?"

It was Resolved in the Affirmative.

Ordered, That the further Consideration of Costs in this Cause be adjourned to Thursday next.

Ld. Archibald Hamilton et al. Petition referred to Judges.

Upon reading the Petition of Archibald Hamilton Esquire, commonly called Lord Archibald Hamilton; praying Leave to bring in a Bill, to confirm an Agreement in the Petition mentioned, for the Exchange of a Mansion house called Park Place, and Lands thereunto belonging, in the Parish of Remenham, in the County of Berks, for a Farm called Bottomhouse Farm, with Lands thereunto belonging, in the said Parish, on the Conditions therein expressed:

It is Ordered, That the Consideration of the said Petition be, and is hereby, referred to Mr. Justice Probyn and Mr. Baron Comyns; with the usual Directions, according to the Standing Orders.

Bromley to enter into a Recognizance for Goswill.

The House being moved, "That Jonathan Bromley of London Merchant may be permitted to enter into a Recognizance for Dorothy Goswill Widow, on account of her Appeal depending in this House; she residing at a great Distance from London:"

It is Ordered, That the said Jonathan Bromley may enter into a Recognizance for the said Appellant, as desired.

Adjourn.

Dominus Cancellarius declaravit præsens Parliamentum continuandum esse usque at et in diem Lunæ, duodecimum diem instantis Februarii, hora undecima Auroræ, Dominis sic decernentibus.