House of Lords Journal Volume 62: 19 July 1830

Die Lunæ, 19 Julii 1830.

DOMINI tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

D. of Cumberland takes the Oaths.

His Royal Highness Ernest Augustus Duke of Cumberland took the Oaths, and also took and subscribed the Oath of Abjuration, pursuant to the Statutes.

D. of Marlborough takes the Oaths.

George Duke of Marlborough took the Oaths, and also took and subscribed the Oath of Abjuration, pursuant to the Statutes.

Ld. Arundell takes the Oath.

James Everard Lord Arundell of Wardour took and subscribed the Oath appointed to be taken by the Act of the Tenth Year of the Reign of His late Majesty, by Peers professing the Roman Catholic Religion.

T. & W. Dixon v. The Monkland Navigation Co:

Upon reading the Petition and Appeal of John and William Dixon Esquires, of the Calder Coal and Iron Works, Sons and Disponees and Representatives of the late William Dixon Esquire, of the Calder Coal and Iron Works; complaining of an Interlocutor of the Lords of Session in Scotland, of the First Division, of the 27th (signed the 28th) of May 1830, in so far as the same finds, as to the Claim for Repetition of Duties subsequent to 28th March 1804, that the late Mr. Dixon having voluntarily paid those Duties, and having failed to put the Monkland Canal Company on its guard by any Requisition or Intimation that the Company should deepen the Canal, or that otherwise he did not consider himself liable for the Duties, the Petitioners, post tantum temporis, were not entitled to Repetition of these Duties; and in so far as the said Interlocutor sustains the Defences founded on the above Circumstances, and assoilzies the Defenders from the Conclusions of the Action; and praying,"That their Lordships would reverse, vary or alter the Parts of the said Interlocutor complained of, or that the Appellants may have such Relief in the Premises, as to this House, in their Lordships great Wisdom, shall seem meet; and that the Company of Proprietors of the Monkland Navigation may be required to answer the said Appeal:"

It is Ordered, That the said Company of Proprietors of the Monkland Navigation may have a Copy of the said Appeal, and do put in their Answer or respective Answers thereunto, in Writing, on or before Monday the 16th Day of August next; and Service of this Order upon the said Respondents, or upon their known Agent in the Court of Session in Scotland, shall be deemed good Service.

Robertson to enter into a Recog ce on it.

The House being moved,"That David Robertson of Great George Street, Westminster, Gentleman, may be permitted to enter into a Recognizance for John and William Dixon Esquires, on account of their Appeal depending in this House, they being resident in Scotland:"

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

Bulkley v. Wilford, Appellant's Petition for Time for his Case, referred to Appeal Com ee.

Upon reading the Petition of George Wilford Bulkley, Appellant in a Cause depending in this House, to which Anna Wilford is Respondent; praying,"That their Lordships will be pleased to grant an Order, allowing the Petitioner until the First Day of next Session of Parliament to lay his Case upon the Table of this 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.

Scott v. Paterson & M'Lellan, Respondents Petition to dismiss the Appeal, referred to Appeal Com ee.

Upon reading the Petition of George Paterson and James M'Lellan, Respondents in a Cause depending in this House, to which William Scott is Appellant; setting forth,"That on the 26th Day of April 1826 a Process of Reduction, Declarator, Count and Reckoning was raised before the Court of Session in Scotland, at the Instance of the Petitioners and William Paul, Accountant in Edinburgh, Trustees appointed by John Chalmers, (since deceased,) against the said William Scott, (Appellant,) sole surviving Trustee nominated and appointed by a pretended post-nuptial Contract of Marriage and Deed of Trust said to have been entered into between the said John Chalmers and Margaret Newland his Wife, (also since deceased,) for the Purpose of reducing, annulling and setting aside (with other Deeds or Instruments) the said pretended post-nuptial Contract of Marriage and Deed of Trust, and for decerning and ordaining the said William Scott to hold Count and Reckoning with the Pursuers for his and his Co-trustees Intromissions with the Succession of John Newland, therein named, to which the said John Chalmers had Right, and to make Payment to the Pursuers of the Expences of the Process, and for other Purposes therein mentioned: That after various Proceedings therein the said Process was conjoined with a Process of Multiple-poinding, at the Instance of Charles Berry, Solicitor in London, and others, against the said John Chalmers and others: That after sundry further Steps of Procedure had in the said conjoined Actions, the Process was remitted to the Jury Court; and the following Issues were afterwards tried before The Lord Chief Commissioner and Lord Cringletie and a Special Jury:

"Whether the post-nuptial Contract of Marriage and Deed of Trust, dated the 26th and 30th April 1816, and bearing to be entered into between the late John Chalmers, Butcher in Alloa, and the late Margaret Newland, whereby the Defender William Scott, and others, are appointed Trustees for certain Purposes therein mentioned, and sought to be reduced, was not the Deed of the said John Chalmers?

"Whether, on the said 26th and 30th Days of April 1816, the Date of the said Deed, the said John Chalmers was a Person of a weak and facile Mind, and easily imposed upon; and whether the Defender William Scott and the other Trustees, or any of them, taking Advantage of the said Facility and Weakness, did fraudulently prevail on the said John Chalmers to enter into the said post-nuptial Contract, to the enorm Lesion of the said John Chalmers?

"Whether the post-nuptial Contract of Marriage and Deed of Trust, dated 26th and 30th April 1816, and bearing to be entered into between the late John Chalmers, Butcher in Alloa, and the late Margaret Newland, whereby the Defender William Scott, and others, are appointed Trustees, for certain Purposes therein mentioned, and sought to be reduced, was not the Deed of the said Margaret Newland?"

"When the Jury found the following Verdict for the Petitioners, (the Pursuers;) videlicet,"At Edinburgh, the 23d Day of February 1829 Years, before The Right Honorable William Adam, Lord Chief Commissioner of the Jury Court in Civil Causes, and The Honorable James Wolfe Murray, one of the Lords Commissioners of the said Court, compeared the said Pursuers and the said Defenders by their respective Counsel and Agents; and a Jury, having been impannelled and sworn to try the said Issues between the said Parties, say, upon their Oath, that in respect of the Matters before them they find for the Pursuers. In pursuance of the Twentieth Section of the Act of 59 Geo. 3, Chap. 35, I hereby certify the above to be the Verdict found by the Jury in this Cause:

"William Adam, Lord Chief Commissioner."

1st July 1829. Interlocutor of the Lord Ordinary applying the Verdict.

9th February 1830. Interlocutor of Lord Ordinary finding the Appellant liable to the Respondents, in Costs, but not to be paid out of the Funds in his Hands.

16th February 1830. 1st Order of the Jury Court awarding Costs to the Respondents, irregularly appealed from.

23d June 1830. Judgment of the Inner House affirming the last Interlocutor of the Lord Ordinary as to Costs.

1st July 1830.

2d July 1830. 2d Order of the Jury Court awarding Amount of Costs to the Respondents, irregularly appealed from.

14th July 1830.

"That a Motion having been made by the Appellant (Defender) for a new Trial, the following Minute was given in to the Jury Court,"Cockburn, for the Pursuers, stated, that as the Defender's Motion for a new Trial seemed to rest entirely on the Verdict on the Second Issue being without Evidence, the Pursuers, in order to save further Litigation, were willing to pass from that Issue, and from the Verdict upon it, and to restrict themselves to the Verdict on the First and Third Issues, it being understood, that if the Jury Court shall award any Expences to the Pursuers, the Point whether the Defender shall be entitled to pay these out of the Fund shall be reserved, along with the other Questions of Accounting, for the Determination of the Court of Session; and it being further understood, that in discussing all such Questions it shall be competent to both Parties to found on the whole Evidence that was laid before the Jury; the parole Evidence to be taken from the Judge's Notes, the documentary from the Documents:" Mr. Solicitor General, for the Defender, in respect of the Arrangement proposed in the foregoing Minute, begged leave to withdraw the Motion, on the Part of the Defender, for a new Trial, and agreed that the Case should be disposed of in Terms of said Minute: That the Cause having gone back to the Court of Session to apply the said Verdict, the Lord Ordinary (Lord Mackenzie) pronounced the following

Interlocutor;"Having heard Parties Procurators, and considered what is set forth in the foregoing signed Minute of Consent, Finds, that the Second Issue, and Verdict thereon, has been now judicially passed from, and that in consequence a new Trial has been passed from; Finds for the Pursuers, in Terms of the Verdict on the First Issue, that the post-nuptial Contract of Marriage and Deed of Trust dated the 26th and 30th Days of April 1816, and bearing to be entered into between the late John Chalmers, Butcher in Alloa, and the late Margaret Newland, whereby the Defender William Scott, and others, are appointed Trustees for certain Purposes therein mentioned, and sought to be reduced, was not the Deed of the said John Chalmers; Finds also for the Pursuers, in Terms of the Verdict on the Third Issue, that the said Contract of Marriage and Deed of Trust sought to be reduced was not the Deed of the said Margaret Newland, applies the Verdict on the said Two Issues, viz. Issues First and Third, reduces the said post-nuptial Contract of Marriage and Trust Deed accordingly, and decerns, in Terms of the reductive Conclusions of the Libel, and, under the subsequent Reservation of all Claims of Expences, allows this Decree of Reduction to go out and be extracted as interim; Further, quoad the Conclusions of Declarator and of Count and Reckoning, before Answer, appoints the Defender William Scott to lodge in the conjoined Processes of Count and Reckoning and Multiple-poinding, an articulate State or Condescendence of the Funds in his Hands, or intromitted with by him, and that between and the Second Box Day in the ensuring Vacation, and, when lodged, allows the same to be seen, and Answers, containing Objections, if any, to be lodged on or before the Third Sederunt Day in November next; meantime reserves Consideration of all Claims of the Parties, or either of them, for Expences, whether as against each other or against the Funds in medio:" That in following up this Judgment a Debate took place, whether the Petitioners should be found entitled to any Expences, and whether, if the Appellant were subjected thereto, he might not take them out of the Funds in his Hands; when the Lord Ordinary pronounced the following Interlocutor;"The Lord Ordinary having heard Parties Procurators, and thereafter considered the Process, with the Notes of The Lord Chief Commissioner at the Trial, Finds the Defender William Scott, Writer to the Signet, liable to the Pursuers in the Expences of the Process of Reduction, and allows an Account thereof to be given in, and, when lodged, remits to the Auditor to tax the same, and report; Finds no sufficient Ground in this Case for holding the Defender entitled to pay these Expences out of the Funds in his Hands, or to take Credit for them, when paid, in accounting for his Intromissions:" That immediately after the pronouncing of this Interlocutor the Petitioners made Application to the Jury Court to award to them their Expences incurred in that Court, and the following Order was made thereon;"It is ordered, That the Defender pay to the Pursuers the Expences incurred in this Court, and that an Account thereof be lodged with the Auditor, to tax the same, and to report:" That the said Interlocutor of the Lord Ordinary of the 9th February 1830 having been submitted to the Review of the Inner House, by a Reclaiming Note of the Appellant, the Court unanimously affirmed the same, by the following Judgment;"The Lords having resumed Consideration of this Cause, and heard the Counsel for the Parties, adhere to the Interlocutor submitted to Review, refuse the Desire of the Reclaiming Note, and decern:" That the Petitioners proceeded to follow up this Judgment by obtaining a specific Decree for the Expences: That the Appellant then presented a Petition to the Inner House, stating that the said Judgments of the Lord Ordinary and the Court of the 9th February and 23d June 1830 did not exhaust the whole Conclusions of the Libel, and might therefore be considered as interlocutory merely, and therefore praying the Court to grant Leave to him to submit those Judgments to Review of this House by Appeal; but this Petition was superseded, and afterwards abandoned by the Appellant: That after the Inner House had so unanimously affirmed the said Interlocutor of the Lord Ordinary of the 9th February 1830, finding the Appellant liable to the Petitioners in the Costs, and that he is not entitled to pay them out of the Funds in his Hands, the Petitioners again applied to the Jury Court to carry into Execution its Order of the 16th of that Month, and that Court accordingly made the following further Order;"It is ordered, That the Auditor's Report be approved of, and that the Defender pay to Edward M'Millan, Solicitor before the Supreme Courts, the Pursuers Agent, the Sum of Six hundred and seventeen Pounds and Four-pence of Expences incurred in this Court:" That the said Orders of the Jury Court, as well as the said Judgments of the Lord Ordinary and the Inner House of the Court of Session, are ex-confessis purely Interlocutory, and do not exhaust the Conclusions of the Action; that, notwithstanding the said Minute given in to the Jury Court, whereby the Parties agreed, that if the Jury Court should award any Expences to the Petitioners, the Point whether the Appellant should be entitled to pay them out of the Fund should be reserved, along with the other Questions of Accounting, for the Determination of the Court of Session; and that the Court of Session had afterwards decided this Point against the Appellant; and, notwithstanding also the Appellant's Application to the Court of Session for Leave to appeal against the said Judgments had been superseded and abandoned by him, the Appellant has thought proper to enter an Appeal to their Lordships against the said Two Orders of the Jury Court of the 16th February and 2d July last, awarding Costs to the Petitioners; upon which Appeal the usual Order has been made by their Lordships for Service on the Petitioners: That the said Appeal is irregular and incompetent, as being contrary as well to the Standing Orders of their Lordships as to the Acts of Parliament relative to the Court of Session and Jury Court in Scotland, and to the Constitution and Proceedings thereof, and this Appeal (which in fact is an Appeal, not from the Jury Court, but from the Court of Session, where the Action originated,) is the first which has been attempted against such Orders since the Establishment of the said Jury Court, and has been entered by the Appellant, in order, not only to prevent legal Diligence or Execution against himself, but also to harrass and distress the Petitioners, by withholding from them a small Part of the very great Expence which has been incurred by them in this most vexatious Litigation on the Part of the Appellant;" and therefore praying,"That their Lordships will be pleased to dismiss (with Costs) the said Appeal, as irregular and incompetent:"

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.

Bromley v. Rocher & Casanas, in Error.

The House being moved,"That a Day may be appointed for hearing Counsel to argue the Errors assigned upon the Writ of Error wherein William Bromley is Plaintiff, and George Marcellus Rocher and Michael Casanas are Defendants:"

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

Administration of Justice Bill, Petition from Pembrokeshire against.

Upon reading the Petition of the Magistrates of the County of Pembroke, whose Names are thereunto subscribed; taking notice of a Bill depending in this House, intituled,"An Act for the more effectual Administration of Justice in England and Wales;" and praying,"That their Lordships will be pleased to refuse their Sanction to that Part of the same which is calculated to affect the Principality:"

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

Address of H.C. respecting Sir J. Barrington, Consideration put off.

The Order of the Day being read for taking into further Consideration the Address communicated by the Commons at the Conference on the 25th Day of May last, for the Removal of Sir Jonah Barrington from the Office of Judge of the High Court of Admiralty in Ireland; and for the Lords to be summoned;

Ordered, That the further Consideration of the said Address be put off 'till To-morrow; and that the Lords be summoned.

10th Report of Church Comrs. delivered.

The Lord Archbishop of Canterbury laid before the House, pursuant to the Directions of an Act of Parliament.

"The Tenth Report of His Majesty's Commissioners for building new Churches."

And the Title thereof being read by the Clerk;

Ordered, That the said Report do lie on the Table.

Ordered, That the said Report be printed.

Bromley v. Rocher & Casanas, Defendant's Petition for an early Day:

A Petition of George Marcellus Rocher and Michael Casanas, Defendants in a Writ of Error depending in this House, wherein William Bromley is Plaintiff, was presented and read; praying,"That their Lordships will be pleased to appoint an early Day for arguing the Errors assigned upon the said Writ of Error:"

Plaintiff's Counter Petition:

Then, A Counter Petition of the said William Bromley, Plaintiff in the said Writ of Error, was presented and read; praying,"That their Lordships will allow the said Cause to be heard in its regular Course:"

Cause to be heard.

Ordered, That the Errors assigned upon the said Writ of Error be argued by Counsel at the Bar To-morrow; and that the Counsel be called in at Half past Three o'Clock.

Report from East-India Com ee:

Report was made by The Lord President from the Lords Committees appointed a Select Committee to enquire into the present State of the Affairs of The East India Company, and into the Trade between Great Britain, the East Indies and China; and to report to the House; and to whom were referred certain Petitions and Papers, and Accounts on the Subject of the said Matters submitted to their Consideration.

Which Report being read by the Clerk (fn. 1);

Ordered, That the said Report do lie on the Table.

Ordered, That the said Report be printed.

Further Report of Evidence.

The Lord President also reported further Minutes of Evidence taken before the last-mentioned Committee up to the 6th Day of this instant July.

The said Evidence was read by the Clerk. (fn. 2)

Report from Com ee on the Coal Trade:

Report was made by The Lord President from the Lords Committees appointed a Select Committee to take into Consideration the State of the Coal Trade in the United Kingdom, together with the Duties of all Descriptions and Charges affecting the same, as well in the Port of London as in the several other Ports of the United Kingdom; and to report to the House; and to whom were referred certain Petitions and Papers on the Subject of the Coal Trade.

Which Report being read by the Clerk (fn. 3) ;

Ordered, That the said Report do lie on the Table.

Ordered, That the said Report be printed.

Evidence to be delivered out.

Ordered, That the Evidence taken before the lastmentioned Committee be delivered out to all the Members of the House.

Registrar at Madras Bill, Petition of B. Hutchinson against:

Upon reading the Petition of Bury Hutchinson of Russell Square, in the County of Middlesex, Esquire; taking notice of a Bill depending in this House, intituled, "An Act for the Relief of the Sufferers by the Insolvency of Gilbert Ricketts Esquire, formerly Registrar of the Supreme Court of Judicature at Madras;" and praying their Lordships,"That the same may not be passed into a Law without a Clause being inserted therein to secure the Payment of his just Claims and Demands upon The Honorable The East India Company and the Territorial Revenues of Travancore; and that he may be heard by his Counsel at the Bar of this House:"

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

Bill read 3a & passed:

Then the said Bill was read the Third Time.

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 Sir Giffin Wilson and Mr. Eden;

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

East Retford Election Bill.

The Order of the Day being read for the further Consideration and Second Reading of the Bill, intituled, "An Act to prevent Bribery and Corruption in the Election of Burgesses to serve in Parliament for the Borough of East Retford;" and for the Lords to be summoned;

It was moved,"That the said Bill be now read a Second Time."

Which being objected to;

It was moved"to leave out ("now") and insert ("this Day Six Months")

After Debate,

The Question was put,"Whether the Word ("now") shall stand Part of the Motion?"

It was resolved in the Affirmative.

Then the said Bill was read a Second Time.

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

Ordered, That the House be put into a Committee upon the said Bill To-morrow; and that the Lords be summoned.

E. of Buchan's Claim, Com ee to meet.

Ordered, That the Committee for Privileges to whom the Petition of Henry David Earl of Buchan, praying their Lordships"to allow him to adduce Evidence in support of his Right to vote at the Elections of Peers in Scotland, and thereafter to admit and declare his Right of voting accordingly," stands referred, do meet to consider further of the said Claim To-morrow.

Court of Session Bill:

The Order of the Day being read for the Third Reading of the Bill, intituled,"An Act for uniting the Benefits of Jury Trial in Civil Causes with the ordinary Jurisdiction of the Court of Session, and for making certain other Alterations and Reductions in the Judicial Establishments of Scotland;"

The said Bill was accordingly read the Third Time.

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 former Messengers;

To return the said Bill, and acquaint them, That the Lords have agreed to the same, with several Amendments, to which their Lordships desire their Concurrence.

Administration of Justice Bill.

Ordered, That the Report of the Amendments made by the Committee of the Whole House to the Bill, intituled, "An Act for the more effectual Administration of Justice in England and Wales," be received To-morrow.

Law of Libel Bill.

The Order of the Day being read for the House to be put into a Committee upon the Bill, intituled,"An Act to repeal so much of an Act of the Sixtieth Year of His late Majesty King George the Third, for the more effectual Prevention and Punishment of Blasphemous and Seditious Libels, as relates to the Sentence of Banishment for the Second Offence; and to provide some further Remedy against the Abuse of publishing Libels;" and for the Lords to be summoned;

Ordered, That the House be put into a Committee upon the said Bill To-morrow; and that the Lords be summoned.

Report of H. C. on Holyhead, &c. Roads to be printed.

Ordered, That the Report made from the Select Committee appointed by the House of Commons on the Holyhead and Liverpool Roads, communicated to the House on Friday last, be printed.

Holyhead, &c. Roads Bill reported:

The Earl of Shaftesbury reported from the Lords Committees, to whom the Bill, intituled,"An Act to alter and amend several Acts for the Improvement of the Roads from London to Holyhead and from London to Liverpool; and for the further Improvement of the said Roads," was committed;"That they had considered the said Bill, and examined the Allegations thereof, which were found to be true; and that the Committee had gone through the Bill, and directed him to report the same to the House, without any Amendment."

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

Ordered, That the House be put into a Committee upon the said Bill immediately.

The House was accordingly adjourned during Pleasure, and put into a Committee upon the said Bill.

After some Time, the House was resumed:

And The Earl of Shaftesbury reported from the Committee,"That they had gone through the Bill, and directed him to report the same to the House, without any Amendment."

To be read 3a.

Ordered, That the said Bill be read the Third Time To-morrow.

Adjourn.

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