House of Lords Journal Volume 64: 2 August 1832

Die Jovis, 2° Augusti 1832.

DOMINI tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

The Earl of Shaftesbury sat Speaker by virtue of a former Commission.

13th 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 Parties Cases, now depending in this House upon Appeals and Writs of Error, have not been delivered, pursuant to the Standing Orders of this House; and of other Matters relating thereto; and to report to the House; and to whom was referred Petitions in the Cause, Freeman and others against Fairlie and others; "That the Committee had met, and considered the Petition of William Smith of Kingston, in the County of Surrey, and Charlotte his Wife, and Elizabeth Oldham of Hornsey Lane, in the County of Middlesex, praying their Lordships that they may be made Respondents, or be at liberty to appear as Respondents to the Appeal Freeman and others against Fairlie and others, in the Place and Stead of John Eborall, mentioned in the Petition, and that they may be at liberty to appear by their Counsel, at the Bar of the House, to defend the same; and that the Appellants may be ordered to proceed with the said Appeal of Freeman and others against Fairlie and others, and also with the Appeal of Freeman and others against Oldham and others, by printing and delivering their Cases within such Time as the House shall think proper; and that the last-mentioned Appeal may be advanced in the Paper of Appeals, and that the said Two Appeals may come on together to be heard before their Lordships; and that their Lordships will be pleased to fix such Day as to their Lordships shall seem meet for the Hearing of the said Appeals; and had heard the Agents thereon, and the Committee are of Opinion, under the Circumstances of the Case, That the said William Smith and Charlotte his Wife, and Elizabeth Oldham, may be at liberty to appear as Respondents to the said Appeal of Freeman and others against Fairlie and others, as desired, but without Prejudice to any Question, whether, as between the said Elizabeth Oldham and William Smith and Charlotte his Wife, and the Appellants, they are entitled, as standing in the Place of the said John Eborall, to the Benefit of the Proceedings in the Causes in which the said firstmentioned Appeal is brought, and without Prejudice in any Manner to the Questions raised by the said Appeal of Freeman and others against Oldham and others, or any of them; and that the said Elizabeth Oldham, William Smith and Charlotte his Wife, may be allowed Six Weeks Time to deliver in their printed Cases, the said Appellants being by an Order of this Date, made upon a Petition of the Appellants in the said Cause of Freeman and others against Fairlie and others, allowed the same Time to deliver in their printed Cases: And that the Committee had also considered the Appellants Petition in the said Cause Freeman and others against Fairlie and others, praying their Lordships that the Appeal may stand revived, and that James Flower, Executor of William Tranter deceased, late an Appellant in this Cause, may be ordered to elect, within such Time as their Lordships shall think proper, whether he will join in this Appeal or be made a Party Respondent thereto; and if he shall be a Respondent, then that the usual Order of Summons may issue commanding him to appear to and answer this Appeal; and that (without Prejudice to any Question raised by the said other Appeal of Freeman and others against Oldham and others) the Petitioners may have Two Months, after the said Elizabeth Oldham and William Smith and Wife shall have obtained the Permission of their Lordships to defend this Appeal, to print and deliver their Cases; and had heard the Agents thereon, and the Agent also for the said James Flower, and the Committee are of Opinion, That the said Appeal Freeman and others against Fairlie and others may be revived, and that the said James Flower, as such Executor, should be ordered to elect, within a Fortnight, whether he will join in the Appeal or be made a Respondent; and if he shall elect to be a Respondent, then that he should put in his Answer in Writing to the Appeal within a Fortnight from the Time of his making such Election; and that (without Prejudice to any Question raised by the said other Appeal of Freeman and others against Oldham and others) the Petitioners may also be allowed a Month's Time from the Period of the said James Flower making such Election to deliver in their printed Cases."

Which Report, being read by the Clerk, was agreed to by the House; and Ordered accordingly.

Bills of Exchange Bill.

A Message was brought from the House of Commons, by Mr. John Smith and others;

With a Bill, intituled, "An Act for regulating the protesting for Non-payment of Bills of Exchange drawn payable at a Place not being the Place of the Residence of the Drawee or Drawees of the same;" to which they desire the Concurrence of this House.

The said Bill was read the First Time.

Ordered, That the said Bill be printed.

Margate Pier Co's Account delivered.

The House being informed, "That Mr. Cobb, from the Directors of the Margate Pier and Harbour Company, attended;"

He was called in; and delivered at the Bar, pursuant to the Directions of an Act of Parliament,

"An Account of the Receipt and Expenditure of the Margate Pier and Harbour Company, from the 8th of April 1831 to the 2d of April 1832, both Days inclusive."

And then he withdrew.

And the Title thereof being read by the Clerk;

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

Com ee on West India Colonies, Dyer to attend.

Ordered, That The Reverend John Dyer do attend this House on Monday next, to be sworn, in order to his being examined as a Witness before the Select Committee on the State of the West India Colonies.

Registry of Deeds (Ireland) Bill.

The Order of the Day being read for the Third Reading of the Bill, intituled, "An Act to regulate the Office for registering Deeds, Conveyances and Wills in Ireland;"

Ordered, That the said Order be discharged.

Beveridge v. Freen et al. Respondents Petition to dismiss Appeal, referred to Appeal Com ee. 7th August 1828. 4th April 1831. 12th May 1832 and 28th June 1832.

Upon reading the Petition of Thomas Freen, and others, Respondents in a Cause depending in this House, to which Alexander Beveridge Esquire is Appellant; setting forth, "That the Petitioner, Thomas Freen, is One of the Trustees nominated under a Marriage Settlement betwixt Sarah Hamer Scott and John Clarkson: Under this Settlement, Mr. John Scott of Saint Mildred's Court, London, Father of the said Sarah Hamer Scott, conveyed certain valuable Properties in England and Scotland to the said Trustees, to be administered by them for the Benefit of the said Spouse, and the Children of their Marriage: Under this Deed the Trustees entered into Possession; but a certain Part of their Number deeming that by Law they were entitled to exercise the Powers of the Whole, and contrary to the plain Import and Meaning of the said Settlement, thought proper, of this Date, to execute a Second, or Sub-Trust, in favor of Alexander Beveridge, residing at Largs, in the County of Fife, whereby that Person was enabled to dispose of the whole Subjects situated in Scotland, and conveyed by the said Settlement, in Manner set forth in said Second or Sub-Trust, and so as to defeat the Purposes of the original Settlement: In virtue of this Conveyance in his Favor the said Alexander Beveridge entered into Possession, and has had very extensive Intromissions with the Property, insomuch that he is now bound to account for many Thousands of Pounds which have passed through his Hands: The Petitioners were advised that the Execution of this Second Trust was altogether ultra vires of the original Trustees, and was otherwise void in Law, as being granted in fraudem of the Marriage Settlement: Of this Date the Petitioners instituted an Action, in the Court of Session in Scotland, against the said Alexander Beveridge, in which they concluded that the said Second or Sub-Trust should be set aside, and that the said Alexander Beveridge should render an Account of his Intromissions under the said Second or Sub-Trust, and pay over what should appear to be the Balance due by him; which Balance was estimated at the Sum of Ten thousand Pounds Sterling: There were thus Two important Matters to be determined in this Suit; First, whether the Sub-Trust was effectual; and Second, supposing it not to be effectual, as has ultimately been determined, to what Extent the said Alexander Beveridge was bound to account, and what Balance he was bound to pay over: The First of these Questions has been decided by Interlocutories of these Dates by the Lord Ordinary and the First Division of the Court, holding the said Sub-Trust to be altogether void, and setting it aside accordingly: With reference to the Second Branch of the Cause, the Interlocutor, 12th May, makes this Order; "appoints Parties to be further heard on the Conclusions of the Summons for Count and Reckoning and Payment:" In obedience to this Appointment the Cause is now being proceeded in so far as regards this important Matter of the Count and Reckoning; and there has since been pronounced the following Interlocutor on the Subject; "7th July 1832. The Lord Ordinary, having heard Counsel for the Parties, appoints the Defender, by the First Box Day (4th September next ensuing) in the ensuing Vacation, to lodge in Process the whole Accounts of his Intromissions with the Subjects in Question, and Vouchers thereof, and thereafter remits to Mr. William Paul, Accountant in Edinburgh, whom failing, to Mr. James Borthwick, Accountant in Edinburgh, to make up a State of Accounts between the Parties, and report;" signed "James W. Moncrieff:" It is in this Situation of the Cause that the said Alexander Beveridge has entered an Appeal to this House against the above Interlocutors dated the 12th May and 28th June 1832, and the Respondents have been ordered to put in their Answer to his Petition of Appeal on or before the 15th Day of this present Month of August; but it is submitted to their Lordships that the said Appeal is incompetent, and ought to be dismissed; for which Purpose the present Petition is respectfully offered: By the Statute 48 George 3d, Cap. 151, S. 15, it is enacted, "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; nor shall any Appeal to the House of Lords be allowed from Interlocutors or Decrees of Lords Ordinary which have not been reviewed by the Judges sitting in the Division to which such Lords Ordinary belong; provided, that when a Judgment or Decree is appealed from, it shall be competent to either Party to appeal to the House of Lords from all or any of the Interlocutors that may have been pronounced in the Cause, so that the Whole, as far as it is necessary, may be brought under the Review of the House of Lords;" and by the Standing Orders of this House it is provided, "That when any Petition of Appeal shall be presented to this House from any Interlocutory Judgment of either Division of the Lords of Session in Scotland, the Counsel who shall sign the said Petition, or Two of the Counsel for the Party or Parties in the Court below, shall sign a Certificate or Declaration, stating either that Leave was given by the Division of the Judges pronouncing such Interlocutory Judgment to the Appellant or Appellants to present such Petition of Appeal, or that there was a Difference of Opinion amongst the Judges of the said Division pronouncing such Interlocutory Judgment:" Now the Petitioners respectfully say, that the above Interlocutors appealed from are not "Decrees on the whole Merits of the Cause," but still leave a very important Branch of the Cause to be disposed of in the Court of Session; and their Lordships perceive that the Court below has taken the proper Steps for the Adjudication of that Branch of the Cause: It might, nevertheless, have been competent to appeal against the above Interlocutors if there had been a Difference of Opinion amongst the Judges where the Decision was pronounced, duly certified to this House, or if the Leave of the Court to appeal had been obtained; but there was no Difference of Opinion amongst the Judges, there is no Certificate tendered to their Lordships, and Leave of Appeal has neither been asked nor obtained; but the Appeal which has actually been taken has the Effect to stay all Proceedings in the Court below, and to subject the Petitioners to the greatest Inconveniences: It is the Policy of the Enactments and the Orders on the Subject of Appeals to allow no Appeals until the whole Cause is exhausted in the Court below, unless in the particular Cases now mentioned, within which the present Case does not come: If this Appeal is to be allowed, the Effect will be, that after this Appeal has been disposed of in this House, the Cause must go back to the Court in Scotland, to be disposed of in the Count and Reckoning, and a Second Appeal may be taken from the Decision on that Branch of the Cause; whereas, if the whole is permitted to be exhausted in the Court below before an Appeal is allowed, much Time and Expense will be saved, inasmuch as One Appeal will serve all the Purposes which the present Appellant can legitimately gain: The Appellant did not ask the Leave of the Court of Session to appeal because he knew well that the Court would never tolerate the Inconvenience to their Lordships, and the Delay and the Expence to the Parties, which must inevitably be caused by Two Appeals instead of One: As therefore the Provisions of the aforesaid Statute have not been observed, and the Standing Orders of this House have not been complied with, the Petitioners pray, That it may please their Lordships to discharge the aforesaid Order on the Petitioners (the Respondents in the Appeal) to lodge their Answers, and to dismiss the said Appeal, reserving to the Appellant to apply to this House when the Cause shall be exhausted in the Court below; and further, that their Lordships may be pleased to direct that the Appellant shall make Payment to the Petitioners of the Costs which they have incurred by this Proceeding:"

It is Ordered, That the said Petition be referred to the Appeal Committee.

The King of Spain's Petition to present Appeal, referred to Appeal Com ee.

Upon reading the Petition of His Catholic Majesty The King of Spain and the Indies; setting forth, "That the Petitioner has for some Time past been engaged (as the Sovereign of Spain) in prosecuting certain Proceedings in the High Court of Chancery against John Hullett, Charles Widder, Co-Defendants in a Suit in the said Court with Justo de Machado and Achillé de Pereira, the Respondents to the proposed Appeal, in order to enforce the Discovery from them of Matters of great Importance to a Portion of the Petitioner's Subjects, in relation to certain Funds received by the above-named Defendant Don Justo José de Machado under certain Treaties and Conventions between France and Spain, and which Funds are deposited in the Hands of the said Respondents; and also to obtain the Payment or Deposit in Court of such Funds by the said Respondents, until the Rights of the Parties in the Fund in Question are judicially decided on, in order that the same may be safely secured: That the said Respondents have, in order to delay the Prosecution of such Proceedings, and to impede, as the Petitioner submits, the Course of Justice, filed a Bill in the said High Court of Chancery against the Petitioner, and to which they require that an Answer shall be put in, upon Oath, from the Petitioner, in the same Form as any other Suitor of the said Court: That the Petitioner hath offered to put in a full and perfect Answer to the said Bill of the said Respondents by an Officer to be appointed specially for that Purpose, and conversant with the several Matters referred to by the said Bill, but with which the Petitioner is personally unacquainted, and otherwise to submit to such Terms as The Lord Chancellor might have been pleased to impose, to promote the Ends of Justice in the said Suit, and to give the said Respondents every Benefit and Advantage that could have resulted from an Answer to their said Bill having been put in upon Oath, as will appear by the Statements in the Petitioner's Petition of Appeal: That the Petitioner is prevented by Reasons of State from complying with the Form of submitting to put in an Answer to the said Bill of the said Respondents upon Oath, and in this Respect is aggrieved by the Orders that have been made in the Court of Chancery refusing to grant Relief in the Manner proposed by the Petitioner, and which are submitted to the Consideration of their Lordships House: That until the 14th Day of May last (the Date of the Orders of the said Court last referred to in the said Petition of Appeal, and with which the said other Orders and Report therein mentioned and appealed from are necessarily connected) it was not definitively determined by The Lord Chancellor that the Petitioner could not be relieved from putting in Answer upon Oath to the said Respondents Bill in Chancery; and it being necessary to communicate such Decision to the Authorities at Madrid superintending these Proceedings, and appointed to distribute the Funds before referred to, (when received,) according to the Treaties connected therewith, some Time was necessarily occupied in the Transmission of such Decision from England to Madrid, and of forwarding Instructions thereon to the Petitioner's Agents in this Country to present a Petition of Appeal to their Lordships in relation to the said Subject: That such Instructions did not arrive in this Country until the 18th Day of July last, and Notice of the Petitioner's Intention to present the said Petition of Appeal was given to the Respondents on the 30th Day of July last; and the Petitioner submits, that though the Time has elapsed within which the Petitioner's said Petition of Appeal should have been presented, yet that, under the special Circumstances of this Case, no unnecessary Delay has taken place in preparing and offering the said Petition to their Lordships at the earliest Moment: That the Matters in Question between the Petitioner and the Respondents are of great Magnitude and Importance, and highly affect the Interests of a Portion of the Petitioner's Subjects, and, as the Petitioner verily believes, the said Objection so taken by the Respondents to the putting in of the Petitioner's Answer is resorted to as the Means of delaying the Petitioner in the Prosecution of the Proceedings in the High Court of Chancery, and in order that they may retain in their Hands the large Fund (about One hundred thousand Pounds Sterling) sought to be recovered from them free from all Control, and subject to the Risk of the Casualties necessarily attaching to the Possession of so considerable a Sum of Money, for which the Petitioner has no Security whatever;" and therefore praying, "That their Lordships will be pleased to permit the Petitioner to present his said Petition of Appeal against the said Orders and Report referred to in the said Petition, (namely, an Order of the High Court of Chancery of the 8th Day of May 1830, and also an Order of the 6th Day of July 1830, the Report of Master Trower of the 17th Day of November 1831, and the Order thereon of the 15th Day of March 1832, and Two several Orders of the High Court of Chancery, bearing Date respectively the 14th Day of May 1832,) notwithstanding the Time limited by their Lordships Standing Order for presenting such Petition of Appeal may have elapsed:"

It is Ordered, That the said Petition be referred to the Appeal Committee.

Convention relative to the Sovereignty of Greece delivered.

The Viscount Goderich, by His Majesty's Command, presented to the House,

"Convention relative to the Sovereignty of Greece, between His Majesty, The King of the French and The Emperor of all the Russias on the one Part, and The King of Bavaria on the other; signed at London, May 7, 1832; with Translation."

And the Title thereof being read by the Clerk;

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

Russian Dutch Loan Bill, Leave to Vist Gordon to enter his Protest against passing of.

Ordered, That The Viscount Gordon be at liberty to enter his Protest against the passing of the Bill, intituled, "An Act to enable His Majesty to carry into Effect a Convention made between His said Majesty and The Emperor of all the Russias," 'till the Rising of the House To-morrow.

Boundaries (Ireland) Bill:

The Order of the Day being read for the Third Reading of the Bill, intituled, "An Act to settle and describe the Limits of Cities, Towns and Boroughs in Ireland, in so far as respects the Election of Members to serve in Parliament;" and for the Lords to be summoned;

The said Bill was accordingly read the Third Time.

Then the following Amendment was made to the said Bill:

Pr. 7. L. ult. After ("Two") insert Clause (A.)

"Clause A. Provided always, and be it enacted, That this Act may be amended or altered by any Act or Acts to be passed during this present Session of Parliament."

Then 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 Sir Giffin Wilson and Mr. Martin;

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.

Post Roads (Ireland) Bill:

The Order of the Day being read for the Third Reading of the Bill, intituled, "An Act to amend an Act of the Forty-fifth Year of His Majesty King George the Third, relating to Post Roads in Ireland;"

The said Bill was accordingly read the Third Time.

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

It was resolved in the Affirmative.

Customs Bill:

The Order of the Day being read for the Third Reading of the Bill, intituled, "An Act to amend the Laws relating to the Customs;"

The said Bill was accordingly the Third Reading of the Bill, intituled, "An Act to amend the Laws relating to the Customs;"

The said Bill was accordingly read the Third Time.

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

It was resolved in the Affirmative.

Charitable Institutions (Ireland) Bill:

The Order of the Day being read for the Third Reading of the Bill, intituled, "An Act to make a better Provision for the Superintendence of Charitable Institutions in Ireland maintained in the Whole or in Part by Grand Jury Presentments; and for the more effectual Audit of the Accounts of the same;"

The said Bill was accordingly read the Third Time.

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

It was resolved in the Affirmative.

Messages to H.C. that the Lords have agreed to the 3 preceding Bills.

And Messages were, severally, sent to the House of Commons, by the former Messengers;

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

Dublin Coal Meters Bill.

Hodie 2^a vice lecta est Billa, intituled, "An Act to authorize the Commissioners of His Majesty's Treasury to grant Compensation to the Inspectors and Coal Meters of the City of Dublin; and to impose a Rate upon Coals imported into the Port of Dublin, to provide a Fund for such Compensation."

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.

Admission of Freemen (Ireland) Bill.

Hodie 2^a vice lecta est Billa, intituled, "An Act to explain Doubts that have arisen respecting the Stamp Duty payable by Freemen of Corporations entitled by virtue of Trade and Residence in the Corporate Towns and Counties of Cities and Towns in Ireland."

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.

Ld. Duffus' Claim to vote for Peers for Scotland, Ld. Reay sworn to give Evidence on.

The Lord Reay was sworn, at the Table, by The Lord Speaker, in order to give Evidence before the Committee for Privileges to whom the Petition of Benjamin Lord Duffus, praying their Lordships, "That his Right of voting for the Representative Peers of Scotland may be admitted and declared," stands referred.

Prescription (Tithes) Bill.

Ordered, That the Amendment made by the Commons to the Bill, intituled, "An Act for shortening the Time required in Claims of Modus decimandi, or Exemption from or Discharge of Tithes," be taken into Consideration To-morrow.

The House was adjourned during Pleasure.

The House was resumed by The Lord Chancellor.

Sewers Bill.

Hodie 2^a vice lecta est Billa, intituled, "An Act to amend the Laws relating to Sewers."

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.

Chancery Offices Abolishing Bill presented.

The Lord Chancellor presented to the House a Bill, intituled, "An Act to abolish certain sinecure Offices connected with the Court of Chancery."

The said Bill was read the First Time.

Ordered, That the said Bill be printed.

Adjourn.

Dominus Cancellarius declaravit præsens Parliamentum continuandum esse usque ad et in diem Veneris, tertium diem instantis Augusti, horâ undecimâ Auroræ, Dominis sic decernentibus.