House of Lords Journal Volume 24: February 1732, 11-20

February 1732, 11-20

DIE Veneris, 11^o Februarii.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

E. I. Company against Attorney General.

The Answer of Sir Philip York Knight, His Majesty's Attorney General, to the Appeal of the United Company of Merchants of England trading to The East Indies, was brought in.

Bp. of Ely against Dr Bentley, in Error;

The Lord Raymond, Chief Justice of the Court of King's Bench, in the usual Manner, delivered in, at the Table, Two Transcripts of Records on Two several Writs of Error; in One of which Writs,

Thomas Lord Bishop of Ely is Plaintiff, against Doctor Richard Bentley Defendant;

And in the other,

and Seymour against Whinyates.

Edward Seymour Esquire is Plaintiff, against Charles Whinyates Esquire Defendant.

Process in Courts of Equity effectual, Heads for a Bill for.

The Lord Delawarr reported from the Lords Committees appointed to consider of Heads prepared by the Judges, the last Session of Parliament, for a Bill to make Process in Courts of Equity effectual, against Persons who absent themselves, and cannot be served; "That the Committee have met, and considered the Matters to them referred, and have heard some of the Judges in relation thereunto; and are of Opinion, that a Bill be brought in, for making Process in Courts of Equity effectual, against Persons who abscond, and cannot be served therewith, or who refuse to appear, upon the following Heads; (videlicet,)

"1. That where a Suit is, or hereafter shall be, depending in any Court of Equity; if, upon the Return of the Subpæna, any Defendant, against whom such Process issued, shall not appear, and Affidavit be made, "That, upon Inquiry at his usual Place of Abode, he could not be found, so as to be served with such Process;" and also sufficient Proof being made upon Oath, that he is gone out of the Realm, or absconds within the Realm, to avoid being served therewith; in such Case, the Court may make an Order, limiting the Party to appear at a certain Day therein to be named, a Copy whereof shall be posted up at the The Royal Exchange in London, and likewise inserted in the London Gazette, and published in the Parish Church in which Parish the Party made his usual Abode before such absenting himself, on some Lord's Day, immediately after Divine Service; and if the Party do not appear within the Space of     after such Order made, and such Publication thereof as aforesaid, whereof also sufficient Proof shall be made, the Court, being satisfied of the Truth of the Premises, may order the said Bill to be taken pro confesso, and may make such Decree therein as shall be thought just, and may thereupon award Execution, by Sequestration of the Real and Personal Estate of the Party absenting, if any such can be found, or such Part thereof as the Court shall think fit, until the Demand of the Plaintiff or Plaintiffs in the said Suit shall be thereout satisfied, according to the true Intent and Meaning of the said Decree; such Plaintiff giving sufficient Security to restore all such Estate so seized, or the Value thereof, or to abide such Order as the Court shall make concerning the same, upon the Appearance of such Defendant to defend such Suit, and his paying such Costs to the Plaintiff as the Court shall order, by reason of the Delay or other Damage occasioned to the Plaintiff by such Defendant's Non-appearance as aforesaid; but in case the Plaintiff shall not give such Security, to the Satisfaction of the Court, then it may be in the Power of the Court to order the Estate so sequestered to remain under the Direction of the Court, until the Appearance of the Defendant to defend such Suit, and pay such Costs and Damage to the Plaintiff as the said Court shall think reasonable.

"2. That in case any Defendant shall be taken by virtue of Process from any such Court of Equity, and, being brought into Court, shall resuse or neglect to enter his Appearance, or appoint a Clerk in Court to act on his Behalf; the Court may appoint a Clerk in Court to enter an Appearance for him, and such Proceedings thereupon may be had as if the Party had actually appeared.

"3. That if the Person, against whom such Decree shall be made, upon Refusal or Neglect to enter his Appearance, or appoint a Clerk in Court to act for him, shall be in Custody, or forthcoming, so that he may be served with a Copy of such Decree; he shall be served with a Copy thereof, before any Execution shall be taken out thereon.

"4. That if the Defendant, against whom such Decree shall be made, while out of the Realm, or absconding in Manner aforesaid, shall afterwards return, or become publicly visible, he shall likewise be served with a Copy of such Decree in a reasonable Time; or in case any Defendant, against whom such Decree shall be made, shall happen to die before his Return or appearing openly, or shall die in Custody before his being served with a Copy of such Decree; then his Heir (if he have any Real Estate) or the Guardian, Husband, or Committee of such Heir, in case he or she be Infant, Feme Covert, or Non Compos Mentis; and his Executor or Administrator (if any such there be), shall be served with a Copy of such Decree within a reasonable Time, in case such Heir, Executor, or Administrator, can be found, to be served therewith.

"5. That if the Person or Persons, so served with a Copy of such Decree, shall not appear within Months after such Service, and petition to have the said Cause re-heard; the said Decree shall stand absolutely confirmed, against the Persons so served, and all Persons claiming, or to claim under them, by any Act done, or to be done, subsequent to the Commencement of such Suit.

"6. That if any Person, so served with a Copy of such Decree, shall, within Months after such Service, appear in Court, and petition to be heard with respect to the Matter of such Decree, and shall pay down, or give Security for Payment of, such Costs as the Court shall think reasonable in that Behalf; the Person or Persons so petitioning, his or their Representatives, or any claiming under him or them before the Commencement of the Suit, may be admitted to answer the Bill exhibited; and Issue may be joined, and Witnesses on both Sides examined; and such other Proceedings, Decree, and Execution, may be had thereon, as might have been if the same Party had originally appeared, and the Proceedings were newly begun, and no former Decree or Proceeding had been in the same Cause."

Which Report being read by the Clerk:

It is Ordered, That the Judges do prepare, and bring in, a Bill upon the said Heads.

Bill against Fraud, by Bankrupts, Judges to bring in Heads for.

The House being moved, "That the Judges be directed to prepare, and bring in, Heads for a Bill, to prevent Frauds committed by Bankrupts:"

It is Ordered, That the Judges do consider of the Laws in Force concerning Bankrupts, and of any Defects there may be therein; and that they do prepare, and bring in, Heads for a Bill, for preventing Frauds committed by Bankrupts.

Persons to be naturalized sworn.

The several Persons following took the Oaths appointed by Law, in order to their Naturalization; (videlicet,)

"Francis Wynantz, James Caulet, John Caulet, Thomas Du Bisson, John Henry de Morin, James Chalie, Jochim Van Coln, Frederick de Veer, Ernst Godrfried Opitz, Michael Miller, and Mary Alstrom."

Malan's Nat. Bill.

Hodie 2^a vice lecta est Billa, intituled, "An Act to naturalize Thomas Malan and Joseph Malan."

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.

Petitions referred to Committee.

Ordered, That the Petitions of the said several Persons beforementioned, which on Wednesday last were ordered to lie on the Table till the Second Reading of the said Bill, be referred to the Said Committee; and that their Lordships be empowered to add the said Per sons to the said Bill, if they think fit.

Coussmaker's Nat. Bill:

Hodie 2^a vice lecta est Billa, intituled, "An Act to naturalize Agnes Coussmaker."

Ordered, That the said Bill be committed to the Consideration of the Lords Committees abovenamed:

Their Lordships, or any Five of them; to meet on the same Day, at the same Place; and to adjourn as they please.

Lockman's Nat. Bill.

Hodie 2^a vice lecta est Billa, intituled, "An Act to naturalize Leonard Lockman Esquire."

Ordered, That the said Bill be committed to the Consideration of the Lords Committees beforenamed:

Their Lordships, or any Five of them; to meet on the same Day, at the same Place; and to adjourn as they please.

Rowe et al. to amend their Appeal.

Upon reading the Petition of Henry Rowe Esquire and Elizabeth his Wife, and James Steuart Esquire (which said Elizabeth and James are Executors of the last Will of General William Steuart deceased); praying, "That they may be at Liberty to amend their Appeal depending in this House, by altering the Date of a Decretal Order made by the Lord Chancellor, therein complained of, from the Fourth Day of December, to the Fifth Day of December 1730:"

It is Ordered, That the Petitioners be at Liberty to amend their said Appeal accordingly; they amending the Respondents Copy.

Adjourn.

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

DIE Jovis, 17^o Februarii.

Domini tam Spirituales quam Temporales præsentes fuerunt:

Fredericus Princeps Walliæ.

PRAYERS.

Robertson et al. against Ferries.

The Answer of Gale Ferries, to the Appeal of John Robertson and others, was brought in.

L. Molesworth et al. Petition referred to Judges.

Upon reading the Petition of Richard Lord Molesworth Baron of Philipstown and Viscount Swords in the Kingdom of Ireland, and of William, Edward, Walter, Coote, and Bysse Molesworth, Esquires, his Five Younger Brothers; praying Leave to bring in a Bill, for enabling the Petitioner the Lord Molesworth now in Possession, and the other Petitioners when they shall be in Possession, of certain Lands and Premises in the Petition mentioned, to make Leases thereof for Lives or Years, or to grant the same in Fee-farm for ever:

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

Swinburnetal. Petition referred to Judges.

Upon reading the Petition of William and Robert Swinburn Clerks, Younger Sons of Surtees Swinburn Esquire, deceased, and also of William Cuthbert and John Airey Esquires, Devisees in Fee of Cuthbert Swinburn Esquire, deceased (who was Eldest Son and Heir of the said Surtees Swinburn), and also of John, William, and Margaret Swinburn, Infants, Children of the said Cuthbert Swinburn, by the said William Cuthbert and John Airey, their Guardians; and also of Margaret, Widow of the said Cuthbert Swinburn; praying Leave to compound a Demand of £.5440. 5s. due to the said William and Robert Swinburn, for the Sum of £.4140. 5s. and to raise the same by Sale or Mortgage of any Estate which the said Surtees Swinburn had a Power by Will to charge with the Payment of the Fortunes of his Younger Sons:

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

Abbott's Petition referred to Judges.

Upon reading the Petition of Penelope Abbott, Widow of Robert Abbott Esquire, deceased, on the Behalf of herself and William Abbott an Infant, Son and Heir of the said Robert Abbott, by the said Penelope; praying Leave to bring in a Bill, for Sale of all the Lands and Hereditaments of the said Robert Abbott, in the Parishes of Steppingley and Flitwick, in the County of Bedford, for Payment of his Debts, and making Provision for the said Infant:

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

Address for a State of the National Debt:

Ordered, That an humble Address be presented to His Majesty, "That He will be graciously pleased to order the proper Officers to lay before this House a State of the National Debt, provided or unprovided for by Parliament, as it stood on the 31st of December 1730, and 31st of December 1731; together with an Accompt of the Produce of the Sinking Fund in that Year; and to the Payment of what Debts, contracted before the 25th of December 1716, the said Fund hath been applied."

Produce of the Duties on Salt;

"Also, an Accompt of the Gross and Net Produce of the Duties on Home-made Salt, and Salt imported, for Seven Years, ending at Lady-day 1730; distinguishing each Year."

Bonds given for the Duties;

"Also, an Accompt of what Bonds, given for the Duties on Salt, are now standing out, and the Value of each Bond, together with the Dates thereof, and the Names of the Persons who entered into the same."

Contracts with the Victualing-office;

"Also, an Accompt of the several Contracts made by the Commissioners for victualing His Majesty's Navy for Salt, and the respective Prices paid for the same during Three Years to Christmas last; distinguishing each Year."

and Salt shipped for Exportation.

"And also, an Accompt of all Salt shipped for Exportation, on Vessels which did not sail till after the 25th of December 1730; with the Times of shipping such Salt on Board such Vessels, the Quantity of Salt shipped, and for what Place entered, and whether the Duty was paid in Money, or secured by Bonds."

Ordered, That the said Address be presented to His Majesty by the Lords with White Staves.

Lock man's Nat. Bill:

The Lord Viscount Falmouth reported from the Lords Committees to whom the Bill, intituled, "An Act to naturalize Leonard Lockman Esquire," was committed: That they had gone through the said Bill, and directed him to report the same to the House, without any Amendment."

Phelan admitted in Forma Pauperis, and Counsel and Solicitor assigned him.

The Lord Viscount Falmouth also reported from the Lords Committees to whom the Bill, intituled, "An Act to naturalize Thomas Malan and Joseph Malan," was committed: "That they had considered the Petitions of several Persons to them referred, praying to be added to the said Bill; and had gone through the same, with some Amendments."

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

A Petition of Richard Phelan, Respondent to the Appeal of Robert Devereux Esquire, was presented, and read; praying to be admitted to make his Defence in this House in Forma Pauperis; and that Charles Talbot Esquire, His Majesty's Solicitor General, and John Browning Esquire, may be appointed to be his Counsel, and Mr. John Gordon his Solicitor.

Whereupon the Petitioner was called in; and attested upon Oath, at the Bar, "He continued in the same necessitous Circumstances he was in, when admitted by the Court of Exchequer in Ireland to prosecute his Suit there against the Appellant in Forma Pauperis."

And then he was directed to withdraw.

And the Order of the said Court of Exchequer, for such Admission, being read:

It is Ordered, That the Petitioner be admitted in Forma Pauperis; and that His Majesty's Solicitor General and Mr. Browning be, and are hereby, assigned Counsel for him, and Mr. Gordon for his Solicitor, as desired.

Brown, called L Kenmare, against Lavallin et al.:

The House was informed, "That Mr. Brereton attended, in order to deliver in Copies of several Pleadings and Proceedings, in the Cause wherein Valentine Brown Esquire is Appellant, and James Lavallin Esquire and others are Respondents."

Pleadings proved.

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

And then he was directed to withdraw.

Sankey against Graham et al.

The House was likewise informed, "That Mr. Reily attended, in order to deliver in Copies of several Pleadings and Proceedings, in the Cause wherein Margaret Sankey Widow is Appellant, and Anne Graham and others are Respondents."

Pleadings proved.

He was thereupon called in, and delivered the same at the Bar; making the like Attestation upon Oath.

And then he was directed to withdraw.

Members of H. C. Pension Bill;

A Message was brought from the House of Commons by Mr. Sandys and others:

With a Bill, intituled, "An Act for making more effectual the Laws in being, for disabling Persons from being chosen Members of, or sitting or voting in, the House of Commons, who have any Pension during Pleasure, or for any Number of Years, or any Offices held in Trust for them," to which they desire the Concurrence of this House.

The said Bill was read the First Time.

After Debate;

Proposed, "To reject the Bill."

Moved, "That the same be read a Second Time on Tuesday next."

After further Debate;

The Question was put, "Whether this Bill shall be read a Second Time?"

It was Resolved in the Negative.

Protest against not reading it a Second Time:

"Dissentient.

"For the Reasons entered in the Journals of this House the Two last Sessions of Parliament, one the 21st of March 1729, and the other the 2d of March 1730.

"Shaftesbury.
Strafford.
Litchfield.
Maynard.
Abingdon.
Gower.
Foley.
Craven.
Exeter.
Masham.
Bathurst.
Coventry."

The Bill rejected.

Ordered, That the said Bill be rejected.

Adjourn.

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

DIE Veneris, 18^o Februarii.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

Lockman's Nat. Bill:

Hodie 3^a vice lecta est Billa, intituled, "An Act to naturalize Leonard Lockman Esquire."

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

It was Resolved in the Affirmative.

Message to H. C. that the Lords have agreed to it.

A Message was sent to the House of Commons, by Mr. Thomas Bennet and Mr. Elde:

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

Malans Nat. Bill:

Hodie 3^a vice lecta est Billa, intituled, "An Act to naturalize Thomas Malan and Joseph Malan."

The Question was put, "Whether this Bill, with the Amendments, shall pass.?"

It was Resolved in the Affirmative.

Message to H. C. with Amendments to it.

A Message was sent to the House of Commons, by the same Messengers:

To return the said Bill; and to acquaint them, that the Lords have agreed to the same, with some Amendments, whereunto their Lordships desire their Concurrence.

King's Answer to the Address Yesterday.

The Lord Delawarr acquainted the House, "That the Lords with White Staves (according to Order) had presented to His Majesty their Lordships Address of Yesterday; and that His Majesty was pleased to say, He would give Orders to the proper Officers, to lay before this House the several Matters desired by the said Address."

Gace and his Wise, Petition referred to Judges.

Upon reading the Petition of Joseph Gace and Naomi his Wife; praying Leave to bring a Bill, for Sale of certain Estates, in the Petition mentioned, lying in the Counties of Lincoln and York, for Payment of Debts, and discharging Incumbrances:

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

Fergusson against Maitland.

The House being moved, "That a Day may be appointed, for hearing the Cause wherein William Fergusson of Auchinblain Esquire is Appellant, and Mr. William Maitland Minister of Mauchline, in the Behalf of himself, and of James Rob Merchant in Edinburgh and Isabell Campbell his Wife, are Respondents:"

It is Ordered, That this House will hear the said Cause, by Counsel, at the Bar, on the First vacant Day for Causes after those already appointed.

Malt Bill.

A Message was brought from the House of Commons, by Sir Charles Turner and others:

With a Bill, intituled, "An Act for continuing the Duties upon Malt, Mum, Cyder, and Perry, in that Part of Great Britain called England; and for granting to His Majesty certain Duties upon Malt, Mum, Cyder, and Perry, in that Part of Great Britain called Scotland, for the Service of the Year One Thousand Seven Hundred and Thirty-two;" to which they desire the Concurrence of this House.

The said Bill was read the First Time.

Adjourn.

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

DIE Sabbati, 19^o Februarii.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

Malt Bill.

Hodie 2^a vice lecta est Billa, intituled, "An Act for continuing the Duties upon Malt, Mum, Cyder, and Perry, in that Part of Great Britain called England; and for granting to His Majesty certain Duties upon Malt, Mum, Cyder, and Perry, in that Part of Great Britain called Scotland, for the Service of the Year One Thousand Seven Hundred and Thirtytwo."

Devereux against Phelan.

Ordered, That the said Bill be committed to a Committee of the whole House, on Monday next.

Upon reading the Petition of Richard Phelan, Respondent to the Appeal of Robert Devereux Esquire; praying, "That a short Day may be appointed, for hearing the said Appeal:"

It is Ordered, That this House will hear the said Cause, by Counsel, at the Bar, on Monday next come Sevennight.

Brigadier Steuart peremptorily to Answer Row's Appeal.

The House was informed, "That Mr. Harrison attended, and desired Liberty to prove the Service of their Lordships Order, made the 27th of January last, requiring Brigadier William Steuart and Mary his Wife, to answer the Appeal of Henry Rowe and others."

Whereupon he was called in, and examined upon Oath, at the Bar, touching the due Service of the said Order.

And being withdrawn:

It is Ordered, That the said Respondents do peremptorily put in their Answer to the said Appeal in a Week.

Bindon against Ryves:

The House was informed, "That Mr. James Pointing attended, in order to deliver in some Papers, in the Cause wherein David Bindon Merchant is Appellant, and William Ryves Merchant Respondent."

Pleadings proved.

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

And then he was directed to withdraw.

Meredith to enter into Recognizance for Vernon.

The House being moved, "That Mr. Ellis Meredith may be permitted to enter into a Recognizance for Jane Vernon Widow, on account of her Appeal depending in this House; she being ill:

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

Adjourn.

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