House of Lords Journal Volume 63: 7 February 1831

Die Lunæ, 7° Februarii 1831.

DOMINI tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

Sir J. Colquhoun v. Colquhoun.

The Answer of Robert Gilmour Colquhoun Esquire, Son of Robert Colquhoun Esquire, of Carnstradden, deceased, as Heir of Entail under the Entail of the said Estate of Carnstradden, or Heir at Law of his said Father; and of Mrs. Harriet Farrer or Colquhoun, Widow of the said Robert Colquhoun, and William Blair of Blair, Esquire, as Executors of the Will of the said Robert Colquhoun, to the Petition and Appeal of Sir James Colquhoun of Luss, Baronet, was this Day brought in.

5th Report from Appeal Com ee.

The Earl of Shaftesbury reported from the Lords Committees appointed to consider of the Causes in which Prints of the Appellants and Respondents Cases, now depending in this House in Matters of Appeals and Writs of Error, have not been delivered, pursuant to the Standing Orders of this House; and to report to the House; and to whom were referred certain Petitions in the following Causes; Balmer against Hogarth and others (1st Appeal); Balmer against Hogarth and others (2d Appeal); Megget and another against Douglas; Sir William Rae against The Lord Dundas and others; Faussett against Carpenter and others; Sir Samuel Stirling and others against Kelly and others; Nicol against Sir Robert Williams Vaughan and others; Baird against Ross; Bray against Malkin; Sir Charles Cockerell Baronet and others against Cholmeley; Sir Richard Bempde Johnston Honyman Baronet against Campbell and others; Pentland against Murray and others; Sir James Colquhoun Baronet against Colquhoun; and the Marquess of Donegal against Houlditch and others; "That the Committee had met, and considered the Respondents Petitions in the Two Causes Balmer against Hogarth and others, the Respondent's Petition in the Cause Megget and another against Douglas, the Appellant's Petition in the Cause Sir William Rae against The Lord Dundas and others, and the Defendants Petition in the Writ of Error Faussett against Carpenter and others, severally praying their Lordships for Leave to lodge their printed Cases; and had heard the Agents thereon, and the Committee are of Opinion, That the Petitioners may respectively be allowed now to deliver in their printed Cases: That the Committee had also considered the Appellants Petition in the Cause Sir Samuel Stirling and others against Kelly and others, praying their Lordships to order that the Time appointed for depositing their Case may be enlarged to the 5th Day of February (instant); and had heard the Appellants Agent thereon; and had also heard the Respondents Agent, who prayed of their Lordships an Extension of Time for lodging the Respondents Case; and the Committee are of Opinion, That the said Appellants and Respondents may respectively be allowed to the 17th of this instant February to deliver in their printed Cases: That the Committee had also considered the Appellant's Petition in the Cause Nicol against Sir Robert Williams Vaughan and others, praying their Lordships for a Month's further Time to lay his printed Case on the Table of the House; and had also considered the Respondents Petition in the same Cause, praying their Lordships that they may be at liberty forthwith to lay their printed Cases on the Table of the House; and had heard the Respondents Agent thereon; and had also heard the Appellant's Agent, who stated to the Committee that the Appellant's Case is now ready to be delivered; and the Committee are of Opinion, That the Appellant and Respondents may respectively be allowed now to deliver in their printed Cases: That the Committee had also considered a further Petition of the Appellant in the last-mentioned Cause, praying their Lordships that an early Day may be appointed for hearing the said Appeal; and had heard the Agents thereon, and the Committee are of Opinion, That the Prayer of the said Petition ought not to be complied with: That the Committee had also considered the Appellant's Petition in the Cause Baird against Ross, praying their Lordships for One Month's further Time to lodge his Case; and had heard the Appellant's Agent thereon, and the Committee are of Opinion, That the Petitioner may be allowed a Month's further Time to deliver in his printed Case: That the Committee had also considered the Appellant's Petition in the Cause Bray against Malkin and others, praying their Lordships that the Time allowed for delivering in his Case may be enlarged from the 26th Day of December (last) until the 10th Day of this instant February; and had heard the Appellant's Agent thereon, and the Committee are of Opinion, That the Prayer of the said Petition may be complied with: That the Committee had also considered the Respondent's Petition in the Cause Sir Charles Cockerell Baronet and others against Cholmeley, praying their Lordships that he may be allowed to lay his printed Case before this House, and that he may appear by Counsel at the Hearing of the said Appeal; and had heard the Appellants Agent thereon; and had also heard the Respondent's Agent, who stated that the Respondent's Case was not ready to be deposited, and prayed of their Lordships Three Weeks further Time for lodging the same; and the Committee are of Opinion, That the said Respondent may be allowed Three Weeks further Time to deliver in his printed Case: That the Committee had also considered the Petition of both Parties in the Cause Sir Richard Bempde Johnston Honyman Baronet against Campbell otherwise Honyman and others, praying their Lordships that this Cause may be specially appointed for Hearing on such early Day as to their Lordships shall seem meet; and had heard the Agents thereon, and the Committee are of Opinion, That the said Cause should be appointed to be heard on Monday the 28th of this instant February: That the Committee had practical and efficient Reform in the National Representation:"

It is Ordered, That the said Petition do lie on the Table.

Dundee:

Upon reading the Petition of the Burgesses and Inhabitants of Dundee and its Suburbs, whose Names are thereunto subscribed:

Three United Trades of Dundee:

And also, Upon reading the Petition of the Convener, Deacons and whole Members of the Three United Trades of Dundee, in Common Hall assembled, under their Common Seal; severally praying their Lordships "to reform the present System of returning Members to the Commons House of Parliament, and to extend the Elective Franchise so as to give the People their due Influence in Parliament, and thus produce a wellfounded Confidence in the Deliberations and Acts of the Legislature; and in particular to give due Representation in Parliament to the Inhabitants of the Scottish Boroughs, to provide for the Election of a separate Representative for the Royal Burgh of Dundee, and to reform the Municipal Government of the Scottish Boroughs, by putting an End to Self-election, and vesting the Election of their Town Councils or Trustees in the Burgesses and Inhabitants:"

It is Ordered, That the said Petitions do lie on the Table.

Blairgowrie:

Upon reading the Petition of the Baron Baillie, Councillors, Burgesses and Inhabitants of the Burgh of Barony of Blairgowrie, in the County of Perth, whose Names are thereunto subscribed; praying their Lordships "in any Measure relative to Parliamentary Reform, to allow the Burghs of Barony in Scotland a Share in the Representation, subject to such Conditions and under such Regulations as to their Lordships may seem proper:"

It is Ordered, That the said Petition do lie on the Table.

Thetford.

Upon reading the Petition of the Inhabitants of the ancient Borough of Thetford, in the Counties of Norfolk and Suffolk, whose Names are thereunto subscribed; praying their Lordships, "That such a System of Reform may be adopted as shall secure to the various Classes of Society in the Borough of Thetford, and in the Kingdom at large, their due Share of Influence in the Choice of Members returned to Parliament:"

It is Ordered, That the said Petition do lie on the Table.

Tithe System, Petition from Mayfield for Revision of, & Reduction of Taxation.

Upon reading the Petition of the Owners and Occupiers of Land in the Parish of Mayfield, in the County of Sussex, whose Names are thereunto subscribed; praying, "That their Lordships will repeal the Duty on Malt, a Tax which presses more heavily than any on the Agricultural Interest, and the Repeal of which would increase the Demand for Agricultural Produce, and, by enabling the Petitioners to give their Labourers higher Wages, would empower the Labourers to procure once more many of the Comforts which they formerly enjoyed: That their Lordships will repeal the Taxes on Hops, which, while very uncertain in their Amount, are equally expensive in their Collection in an unproductive as in a productive Season: That their Lordships will repeal the Taxes on Soap and Candles, both necessary Articles of Consumption to the Labouring Classes; and lastly, that their Lordships will take into their Consideration the present Law of Tithes, which they feel to be a most grievous and oppressive Burthen, and which are a Payment equally claimed of them, whether they derive any Profit from their Labor and the Employment of their Capital, or whether they suffer a Loss, and which the present System authorizes the Owner to take in a Manner the most oppressive to the Cultivator, and so as often to exceed the Amount of Rent payable to the Landlord, and to deprive the Holder of the Soil of all the Profit which he ought to derive from his Labor and Capital:"

It is Ordered, That the said Petition do lie on the Table.

Grahame v. Jolly, Respondent's Petition to lodge his Case, referred to Appeal Com ee.

Upon reading the Petition of Stewart Jolly, Respondent in a Cause depending in this House, to which Francis Grahame Esquire is Appellant; praying their Lordships to allow the Petitioner to lodge his Case, and this notwithstanding of the Lapse of the Time limited by the Standing Orders of the House:"

It is Ordered, That the said Petition be referred to the Committee appointed to consider of the Causes in which Prints of the Appellants and Respondents Cases, now depending in this House in Matters of Appeals and Writs of Error, have not been delivered, pursuant to the Standing Orders of this House.

D. of Hamilton v. Aikman, Respondent's Petition to dismiss Appeal, referred to Appeal Com ee.

Upon reading the Petition of George Robertson Aikman Esquire, Respondent in a Cause depending in this House, to which Alexander Duke of Hamilton and Brandon is Appellant; setting forth, "That on the 29th Day of June last, His Grace Alexander Duke of Hamilton and Brandon presented a Petition of Appeal to their Lordships against certain Interlocutors of the Court of Session in Scotland, pronounced in a Question depending between His Grace and the Petitioner, and praying that the same may be reversed or altered by their Lordships: The Petitioner is of Opinion, that the beforementioned Petition of Appeal is incompetent, and he hopes to satisfy their Lordships that this is the Case, by the following Statement of the Facts of and Proceedings in the Case: The Petitioner, as well as the other Heritors, Proprietors and Inhabitants of the Town of Hamilton, has enjoyed, for Time immemorial, a prescriptive Right of taking away Sand and Gravel from the River Clyde or its Banks, betwixt the Mouth of the Avon and the Mouth of the Hamilton Burn; and has also enjoyed a prescriptive Right of Road for the Purpose of removing the said Sand and Gravel through a Common the Property of the Burgesses and Inhabitants of the said Town of Hamilton; but the said Duke of Hamilton, having purchased the Lands adjoining to the Common and Road in question, caused a Gate to be put across the said Road, and refused Access to the same, on the Ground that the Gravel Bank was his Property exclusively: That in consequence of the Petitioner having exercised his Right of Passage and of removing Gravel, after the Erection of the foresaid Gate, the Appellant presented a Petition to the Sheriff, praying that the Petitioner might be interdicted from incroaching on the said Ground, and from taking Sand or Gravel from the Bed of the said River: That the Sheriff Substitute, having considered the said Petition, ordered the Petitioner to answer the same, and granted the Interdict craved: In compliance with the Interlocutor of the Sheriff, the Petitioner gave in Answer to the Petition; and, after various Proceedings before the Sheriff, the Petitioner advocated the Cause to the Court of Session; and the Petitioner having brought a Summons of Declarator against the Appellant, with the view of having his Rights in regard to the said Property found and declared, the said Declarator and Advocation were conjoined by The Lord Medwyn Ordinary; and after the Record was closed, his Lordship was pleased, on the 11th June, to pronounce the following Interlocutor: "Having heard Parties Procurators on the closed Record, Finds it competent to establish a Servitude such as is herein concluded for by Prescription, without any specific Grant, on the Ground of uninterrupted Use and Possession; and that the Pursuer (the Petitioner) has made relevant Allegations sufficient to entitle him to a Proof; and with these Findings, remits this Cause to the Jury Court:" The Appellant brought the above Interlocutor under Review of the Lords of the Second Division of the Court of Session; and, on the 14th of November 1829, the following Interlocutor was pronounced: "The Lords having advised this reclaiming Note, and heard the Counsel for the Parties, they recall the Findings of the Interlocutor reclaimed against in hoc statu, sustain the Pursuer's (Petitioner's) Title to insist, and remit to the Jury Court quoad ultra:" The Cause having been transmitted to the Jury Court, the Draft of the Issues prepared, and the Case having been moved in Court, the following Interlocutor was pronounced on the 18th February 1830: "It is ordered of Consent, that the Cause be remitted back to the Court of Session, in order to determine the Extent to which the Summons is relevant; and particularly with a view to the following Questions: Primo, Whether, under the Summons, the Pursuer is entitled to plead that there is no Right of any Kind in the Defender to the Sand and Gravel Bank libelled? Secundo, Whether, in this Process, the Pursuer is bound to plead that he himself has a Right of Commonty in the said Sand or Gravel Bank? Tertio, Whether, under the said Summons, the Pursuer is entitled, in support of his Right of Servitude or Privilege, to found upon the Possession of any Persons other than himself and his Predecessors or Authors, or his or their Tenants?" In consequence of the above Remit, the Case came again before the Court of Session; and their Lordships, on the 17th June, were pleased to pronounce the following Interlocutor: "The Lords having advised the Remit from the Jury Court of 18th February last, and this Minute, and heard Counsel for the Parties, Find, first, That under the Summons the Pursuer is entitled to plead that there is no Right of any Kind in the Defender to the Sand and Gravel Bank libelled; 2dly, That in this Process the Pursuer is not bound to plead that he himself has a Right of Commonty in the said Sand or Gravel Bank; 3dly, That, under the Summons, the Pursuer is entitled, in support of the Conclusions thereof, to found upon the Possession of Persons, Proprietors and Occupiers of Houses and Gardens in the Town of Hamilton, similarly situated with the Pursuer's Houses and Gardens there; and, with these Findings, remit the Cause back to the Jury Court, reserving to the Jury Court all Questions as to Expences hinc inde:" The Appeal complains of the Two last-mentioned Interlocutors of the Second Division, viz ^t, of 14th November 1829 and 17th June 1830, incompetently, as it appears to the Petitioner; because, first, with respect to the Interlocutor of the 14th November 1829, it is clearly an Interlocutory Judgment within the Meaning of the 48 George 3, Cap.151, s.15, which enacts, that "hereafter no Appeal to the House of Lords shall be allowed from Interlocutory Judgments, but such Appeals shall be allowed only from Judgments or Decrees on the whole Merits of the Cause, except with the Leave of the Division of the Judges pronouncing such Interlocutory Judgments or except in Cases where there is a Difference of Opinion among the Judges of the said Division:" "Now, as the Interlocutor referred to merely decides the Question of Title in the Petitioner to pursue, it is purely of an Interlocutory Nature; and as the Certificate of Counsel annexed to the Appeal does not bear that Leave to appeal has been obtained, or that there was a Difference of Opinion among the Judges at pronouncing the Interlocutor, the Appeal is unquestionably incompetent: Second, with respect to the Interlocutor of the 17th June 1830, it is only necessary to refer their Lordships to the 33d Section of the 6 George 4, Cap. 120, which provides, "That if it shall be ordered by the said Judge or Jury Court, that such Question (of Law or Relevancy) ought to be determined previous to Trial, the Cause shall forthwith be remitted to the Ordinary of the Court of Session by whom the same was remitted to the Jury Court, or to the Judge of the High Court of Admiralty respectively, to have that Question determined; and when, in either of the Cases now specified, the Cause shall be remitted to the Court of Session, or to the Judge of the High Court of Admiralty, for their Decision on a previous Question of Law, the said Court of Session, or the Judge of the Court of Admiralty, shall proceed to determine the same according to the Rules and Regulations of those respective Courts, the Determination of the Court of Session being final in that Court, and that of the Court of Admiralty subject, as it now is by Law, to the Review of the Court of Session; and the Determination of such previous Question of Law or Relevancy shall not be open to Appeal to the House of Lords without Leave expressly granted, reserving the full Effect of the Objection to the Decision in any Appeal to be finally taken:" The Petitioner submits, that it is quite clear that the Interlocutor of 7th June falls under the Section of the Act above quoted, and that an Appeal therefrom is incompetent, Leave for that Purpose not having been obtained: It may be stated, that the Jury Court acted irregularly in remitting the Cause at once to the Inner House, and not sending it through the Medium of the Lord Ordinary; but in answer to that Objection the Petitioner begs to direct their Lordships Attention to the Terms of the Remit, which bears that it was made by Consent of Parties;" and therefore praying their Lordships "to order the said Appeal to be dismissed this House as incompetent:"

It is Ordered, That the said Petition be referred to the last-mentioned Committee.

Lady M. Montgomerie & Sir C. Lamb v. Rundell & Co. et e con.

Upon reading the Petition of Messieurs Rundell and Company, and others, Respondents in a Cause depending in this House, to which The Right Honorable Lady Mary Montgomerie and Sir Charles Lamb Baronet, her Husband, are Appellants, et e contra; praying, "That their Lordships will appoint the Cause to be heard on an early Day:"

It is Ordered, That the said Petition be referred to the last-mentioned Committee.

Thompson's et al. Petition referred to Judges.

Upon reading the Petition of Paul Beilby Thompson of Escrick, in the County of York, Esquire, on Behalf of himself and of Beilby Richard Thompson, Robert Neville Thompson, Stephen Willoughby Thompson and Francis Charles Thompson, his only Sons, all of whom are Minors under the Age of Twenty-one Years; and of Francis Lawley of Middleton Hall, in the County of Warwick, Esquire; and of Edward Wallis of the City of York, Esquire, Thomas Lodington Fairfax of Newton Kyme, in the said County of York, Esquire, Benjamin Agar of Brookfield House, in the same County, Esquire, Sir William Mordaunt Milner of Nunappleton, in the County of the City of York, Baronet, Robert Swann of Askham Richard, in the said County of the City of York, Esquire, Gilbert Crompton of the said City of York, Esquire, and Nicholas Edmund Yarburgh of Heslington, in the said County of York, Esquire; praying Leave to bring in a Bill for the Purposes in the said Petition mentioned:

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

Coals carried Coastwise, Petitions for Repeal of Duty on: (Folkestone:) Saltash:

Upon reading the Petition of the Inhabitants of the Town of Folkestone, in Kent, whose Names are thereunto subscribed:

And also, Upon reading the Petition of the Inhabitants of the Borough of Saltash, in the County of Cornwall, whose Names are thereunto subscribed; severally praying, "That their Lordships will take the Subject of the Duties on Coal and Culm into their Consideration, and by a Repeal of those Duties relieve the Petitioners from an Impost unequal and oppressive:"

It is Ordered, That the said Petitions do lie on the Table.

Weymouth & Melcombe Regis:

Upon reading the Petition of the Inhabitants of the Borough and Town of Weymouth and Melcombe Regis, in the County of Dorset, whose Names are thereunto subscribed; praying their Lordships "to repeal the Duty on Sea-borne Coal:"

It is Ordered, That the said Petition do lie on the Table.

Honiton:

Upon reading the Petition of the Inhabitants of the Town and Parish of Honiton, in the County of Devon, and its Vicinity, whose Names are thereunto subscribed; praying their Lordships "for the total and immediate Repeal of the Duties on Coals and Culm carried Coastwise:"

It is Ordered, That the said Petition do lie on the Table.

Gainsborough.

Upon reading the Petition of the Ship Owners, Merchants and Inhabitants of Gainsborough, in the County of Lincoln, whose Names are thereunto subscribed; praying, "That their Lordships will adopt Measures for a Repeal of the Duties on Coals carried Coastwise:"

It is Ordered, That the said Petition do lie on the Table.

Slavery, Petitions for Abolition of: (Scarbro':)

Upon reading the Petition of the Protestant Dissenters of the Baptist Denomination meeting for Divine Worship at Scarbro', Yorkshire, whose Names are thereunto subscribed; praying their Lordships "to appoint as early a Period as possible for the immediate Abolition of Slavery in the British Dominions:"

It is Ordered, That the said Petition do lie on the Table.

Frotown, &c:

Upon reading the Petition of the Inhabitants of the Hamlets of Fartown, Deighton and Bradley, in the Parish of Huddersfield, in the County of York, whose Names are thereunto subscribed:

Aberford:

Also, Upon reading the Petition of the Inhabitants of the Town and Neighbourhood of Aberford, whose Names are thereunto subscribed:

Nether Poppleton:

Also, Upon reading the Petition of the Minister, Churchwarden and Inhabitants of the Village of Nether Poppleton, in the County of the City of York, whose Names are thereunto subscribed:

Wilberfoss, &c.

Also, Upon reading the Petition of the Ministers and Inhabitants of the Parishes of Wilberfoss, Skirpenbeck and Catton, whose Names are thereunto subscribed:

Roxton:

Also, Upon reading the Petition of the Inhabitants of Roxton, in the County of Bedford, whose Names are thereunto subscribed:

Cranfield:

And also, Upon reading the Petition of the Minister and Members of the Congregation of Protestant Dissenters of the Baptist Denomination at Cranfield, in the County of Bedford, whose Names are thereunto subscribed; severally praying, "That their Lordships will adopt immediate Measures for the total and utter Extinction of Slavery in the British Colonies:"

It is Ordered, That the said Petitions do lie on the Table.

Breehin.

Upon reading the Petition of the Citizens, Burgesses and Inhabitants of the City of Brechin, in Scotland, whose Names are thereunto subscribed; praying their Lordships "to take such Measures as may seem meet for the total and speedy Abolition of Slavery in the British Colonies, and for promoting the Moral and Religious Instruction as well as the temporal Welfare of the present Slave Population:"

It is Ordered, That the said Petition do lie on the Table.

Lords summoned.

Ordered, That all the Lords be summoned to attend the Service of the House on Monday the 21st of this instant February.

Tithe System, Petitions for Revision of: (Somerset:)

Upon reading the Petition of the Owners and Occupiers of Land in the County of Somerset, whose Names are thereunto subscribed; praying their Lordships "to take their Complaints against the present System of Tithes into Consideration without Delay, and to institute a strict and ample Enquiry into the Calamities of the Nation at this most extraordinary and alarming Crisis: That their Lordships will also be pleased carefully to investigate the pernicious Tithe System, and promptly and efficaciously restore it to a just and equitable one, or provide a fair Commutation founded and calculated upon the same Principles as the Tithes were when first introduced, and make the Tithe Law intelligible and general, prevent the Downfall of England's Glory- "a bold Peasantry," save the Cultivators of the Soil and their Families from extreme Poverty, their poor unemployed Labourers from inevitable Starvation, and, more than all, save this once prosperous, happy and envied Country from a Continuance of those awful and destructive Burnings, Murders and Bloodshed which she has lately witnessed, and from that dreadful Anarchy with which she is daily threatened, ere it be too late to quench the Brand of Civil Discord or prevent the Overthrow of her noblest Institutions:"

It is Ordered, That the said Petition do lie on the Table.

Bleadon, &c:

Upon reading the Petition of the Owners and Occupiers of Land in the Parish of Bleadon and other adjoining Parishes, in the County of Somerset, whose Names are thereunto subscribed; praying their Lordships "to take the Tithe of this Kingdom into their Consideration, with the Hope that, as the Poor are now otherwise provided for, and the Clergy may be so by their respective Congregations, their Lordships may devise a Method for its total Abolition:"

It is Ordered, That the said Petition do lie on the Table.

Yatton & Kenn.

Upon reading the Petition of the Inhabitants of the United Parishes of Yatton and Kenn, in the County of Somerset, whose Names are thereunto subscribed; praying their Lordships "to take the Tithe Laws into their Consideration, and deal with the same as in their Wisdom may appear most expedient:"

It is Ordered, That the said Petition do lie on the Table.

Adjourn.

Dominus Cancellarius declaravit præsens Parliamentum continuandum esse usque ad et in diem Martis, octavum diem instantis Februarii, horâ undecimâ Auroræ, Dominis sic decernentibus.