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Journals of the House of Lords.

Surveyor A Message was brought from the House of Commons, “ County of Buckingham, and within the Hamlet of so by Sir james Graham and others: “ Horton, lying in the same Parish, and in the several

740 A. 18 Io.

To return the Bill, intituled, “An Aćt for uniting “ the Offices of Surveyor General of the Land Reve“ nues of the Crown, and Surveyor General of His “ Majesty's Woods, Forests, Parks, and Chases;” and to acquaint this House, That they have agreed to their

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ORDeRed, That the said Bill be committed to the
Consideration of the Lords Committees aforenamed:

Their Lordships, or any Five of them, to meet on

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9 Hodie zation:

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The Lord Walsingham reported from the Lords Committees, to whom the Bill, intituled, “ An Aćt for “ amending an Aćt of the Twenty-second Year of His “ late Majesty King Charles the Second, so far as the “ same relates to the River Brandon otherwise the “Lessor Ouze, from the White House near Brandon Ferry to Thetford, in the Counties of Norfolk and “Suffolk, and for improving the Navigation of the “ said River,” was committed : “That they had con“fidered the said Bill, and examined the Allegations “ thereof, which were found to be true; and that the “Committee had gone through the Bill, and dire&ted “ him to report the same to the House, without any “ Amendment.”

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74.1

Thetford Navigation Bill.

Bakers Bill.

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“ to the Court of Session, to review their Interlocutors

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with regard to the Lands of Macgowanston, the Mill of Drumgerloch, and Dunnymuck, the Lands of Whitefton, Pennyglen, Barony of Greenan, and Lands of Balvaird, it has been represented to the Committee, that the Titles to these Lands and Subječts was in Dłspute in the Appeal, in which such Judgment was pronounced: That the Affirmance contained in the said Judgment, does not, according to the Meaning of the Terms of the Judgment, rule the Title to these Lands and Subjećts, which, or some of which are stated not to be Lands and Subjećts contained in the Charter of 1774, or in any similar Titles: That the Judgment, therefore, if it contained no Remit as to these Lands and Subjects, doth not contain the judicial Opinion of the House upon the Title to these Lands and Subječts, which was in Dispute in the Appeal, and that the House ought therefore now to proceed to Judgment thereupon, in some Form, and previously to hear Counsel upon the Title to these Lands and Subjećts, it being alledged to the Committee, that upon the former Hearing of the Appeal, during many Days, at the Bar of the House, the Counsel were not thereupon heard. This supposed Fačt the Committee represent as controverted on the Part of the Earl of Casillis, on whose Behalf it has been insisted, not only that the Title to these Lands and Subjects was before the House in the printed Cases of the Appellant and Respondent, but that it was spoken to by Counsel on his Part, and on the Part also of the Appellant; and the Committee find that it was represented in the Case laid before their Lordships House on Behalf of the Appellant (the present Petitioner), that in the Court below several Questions had been agitated, which it had not been deemed necessary to enter minutely into in that printed Case, inasmuch as the Points thereinbefore stated at large were confidered by the Appellant as ruling all the Matters at Issue in the Cause; and that he should therefore only cursorily mention such other Questions, reserving to himself to argue them at the Bar of the House, if that should appear to be expedient. He then represented these Questions to relate to the following Classes of Lands:—First, “The Lands of Portmark and Polmeadow, and others,” specially mentioned in their Lordships Remit, which, it was observed, “were Purchases made by Earl Thomas, upon which he died infeft upon base Holdings, the Dispositions whereof had been granted to him, his Heirs and Assignees; but that these Dispositions, as acquirenda, were ruled by the Destination of the Entail of 1748, and as to them there existed no other personal Right which could be taken up by Earl David's Service in 1776.”—Secondly, “The Lands of Bardanock, Daljarbui, and the Citadel of Ayr : That these were not in Charter of 1774, but remained upon the Titles which Earl Thomas had acquired therein as a Purchaser; that so far they were in the same Situation with the Lands in the First Class; that so far they differed from them, that Earl David made up a Title as Heir of Line, conform to the Destination in the Title Deeds of these Lands, but that as he made up no Title under the ruling Deed of 1748, his making up a Title as Heir of Line was unessential.” Thirdly, “ The Lands of Macgowanston, Mill of Drumgerloch and Dunnymuck, in the Property of which Earl Thomas was infeft in 1748, and the Lands of Whitgston, in which he was infeft in 1757; that these were included in the Charter 1774, and of course fall under the general Argument as to all the Lands contained in that Charter; but they were also affected by other Questions, upon which it was contended in the Court below, that from a Defečt in consolidating the Property with the Superiority of these Lands, the Titles thereto made up by Earl David were from that Cause also altogether ineffectual and insufficient.”— Fourthly, “ The Barony of Greenan and Lands of Balvaird; That these formed a very confiderable Portion of the Estate, and were not included in the Charter 1774, but that they had been in 1765 par

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celled out into Freehold Qualifications, for Purposes precisely similar to those which regarded the Lands in the Charter 1774; that Earl David too made up his Title to the Barony of Greenan and Lands of Balvaird upon the Footing of the Titles taken for these temporary Purposes, and also, as to them, neglečted the ruling Destination in the Entail of 1748; that as to them therefore also, the general Reasoning relative to the Lands contained in the Charter 1774, fully applied.” The Committee, citing this Statement from the printed Case of the Petitioner in 1805, (then the Appellant), take Leave to observe, that with respect to the First of these Four Classes of Lands, they are the Subjects of express Remit to the Court of Session, and not the Objects of the Petition: That, with regard to the Second Class, they are stated to differ as to Title from the First, but not essentially, and that they are not understood to be the Objects of the Petition: That as to the Third Class, they are expressly stated in the printed Case of the Petitioner in 1805, (then the Appellant), to be included in the Charter 1774, and the Affirmance by the Judgment of the House of all the Interlocutors relating to the Lands and Subjećts contained in the Charter of 1774, is not qualified by any Remit as to any supposed Defect in consolidating Property with the Superiority of these Lands. These Lands are the Objećts of the Petition. That, as to the Barony of Greenan and Balvaird, (the Barony of Greenan having been particularly pointed out by the Counsel attending the Committee, as not being in a Title similar to the Lands contained in the Charter of 1774), the House will observe, that the Petitioner, the then Appellant, reserved to himself to argue the Title, if it should be expedient; and will also observe how far the Appellant admits the Reasoning relative to the Lands contained in the Charter to apply to these Subjećts, though not contained in it. These Subjects are also Objećts of the present Petition. The Committee further report, That whether the Question of the Title to these Lands and Subječts was or was not argued at the Bar of the House in the Year 1805, the State of the Title to them appears to have been before the House, with an Opportunity for the then Appellant, reserved by the Appellant himself, fully to argue the Titles to them, if it appeared expedient to argue them. They further represent, that it seems obvious that it could not possibly be the Intent of the House, under the general Words of the Judgment, toiremit to the Consideration of the Court of Session the Titles to the Third and Fourth Classes of Lands and Subjećts, those contained in the Third being, by the Appellant stated in his Case in 1805, to have been contained in the Charter of 1774, and those contained in the Fourth Class, though not comprehended in the Charter of 1774, being stated by the Appellant, in that Case of 1805, to be Lands to which the general Reasoning relative to the Subjećts comprehended in that Charter, fully applied. And, when it is further observed, that the Appellant stated those of the Fourth Class “to form a very confiderable Portion of the Estate,” it is conceived that the House, making express Mention, in its Remit, of Enoch, and the other small Parts of the Estate called The Pendicles, could not possibly mean, by its general Words to remit Questions with reference to the considerable Parts of the Estate mentioned in the Third and Fourth Classes, without specifically naming any one of the Lands and Subjećts therein contained ; that the House could not possibly intend, with its Attention thus far called to these Lands and Subjects, as a confiderable Part of the Estates, with Circumstances in the Titles differing them from the Titles to Enoch and the Pendicles, to remit to the Court of Session the Questions relative to such Parts of the Estates under the Words in the Judgment, following the express Enumeration of The Pendicles ; (videlicet) “ any other Lands or Subjects, the Title to which is in Dispute in this Cause, if any such there be, not ruled by the aforesaid Affirmance.” The Committee further conceive, that it must have been the Intention of the House itself to decide

I O “ upon,

A. 181 o.

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