Journal of the House of Lords Volume 24, 1732-1737. Originally published by His Majesty's Stationery Office, London, 1767-1830.
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February 1732, 11-20
DIE Veneris, 11o Februarii.
E. I. Company against Attorney General.
Bp. of Ely against Dr Bentley, in Error;
and Seymour against Whinyates.
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."
Bill against Fraud, by Bankrupts, Judges to bring in Heads for.
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.
Malan's Nat. Bill.
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:
Lockman's Nat. Bill.
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:"
DIE Jovis, 17o Februarii.
Robertson et al. against Ferries.
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:
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:
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:
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;
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."
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."
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."
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."
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."
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."
Members of H. C. Pension Bill;
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.
Protest against not reading it a Second Time:
The Bill rejected.
DIE Veneris, 18o Februarii.
Lockman's Nat. Bill:
Message to H. C. that the Lords have agreed to it.
Malans Nat. Bill:
Message to H. C. with Amendments to it.
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:
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:"
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.
DIE Sabbati, 19o Februarii.
Hodie 2a 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.
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."
Bindon against Ryves:
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."