Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> J. Stewart and E. Drew, Petitioners - Wetherel - Warren Earl of Stair and Others, Petitioners v. J. V. Agnew, Petitioner and - Giffor - Sugden [1823] UKHL 1_Shaw_413 (12 March 1823)
URL: http://www.bailii.org/uk/cases/UKHL/1823/1_Shaw_413.html
Cite as: [1823] UKHL 1_Shaw_413
[New search] [Contents list] [Printable PDF version] [Help]
SCOTTISH_HoL_JURY_COURT
Page: 413↓
(1823) 1 Shaw 413
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
2 d Division.
No. 58.
v.
Subject_Appeal — Process — Rehearing. —
Held incompetent to rehear a case on the merits formerly argued, and on which judgment had been pronounced by the House of Lords; but that the judgment might be amended as to a point on which no decision had been given by the Court of Session, and on which no argument had, through misapprehension, been stated in the House of Lords by the party against whom the judgment was pronounced.
After the judgments had been pronounced, noticed ante, p. 320 and p. 333 (which see,) reversing the decision of the Court of Session, and finding that the estate of Barnbarroch was not attachable for the debts of John Vans contracted subsequent to the date of the entail of that estate and of Sheuchan, and not made real prior to the date of infeftment—that the sales had not been lawfully made, and that the appellant, Mr. Vans Agnew, had right to the lands which had been sold, and to the rents from the period of his succession as an heir of entail,—he presented a petition to the Court of Session, praying it to apply the judgment of the House of Lords in ordinary form, by pronouncing decree conform to it. This was opposed by Messrs. Stewart and Drew, and by the Earl of Stair and others, the respondents in the appeals, who moved the Court, as Parliament was not met, to supersede advising the petition until they could have an opportunity of presenting a petition to the House of Lords to be reheard. The Court, on the 15th of November 1822, in consequence of this motion, superseded advising the petition for Mr. Agnew till Tuesday then next, in order to hear counsel, and required the respondents to lodge a minute, stating their intention to apply to the House of Lords on the meeting of Parliament. Counsel having been accordingly heard,
Page: 414↓
Lord Robertson.—We all know that we must obey the judgment of the House of Lords, and it is our inclination to do so; but we do not disobey it by delaying for a short time to carry it into execution. The question therefore seems to be, what has been the practice in similar cases? Now it appears that it has been the immemorial custom immediately to pronounce judgment in terminis of that of the House of Lords. The opposition of the respondents is unprecedented, and no example of it being sanctioned has been shown, either in this Court or the Courts of England. So far as practice is concerned, therefore, it is hostile to the respondents. To get out of it, and in order to succeed, they must show, 1. That it is competent to apply to the House of Lords to rehear; 2. That they have good grounds for such an application; and, 3. That if this Court refused to delay, they would be without a legal remedy. As to the first point, I am satisfied that the competency of the application has been clearly
Page: 415↓
Lord Bannatyne.—This is a case of great delicacy and importance. No such application as that made by the respondents was ever brought before us. I conceive that in this matter our duty is merely ministerial, and that we have no right to inquire into what may be the effect of the judgment. The House of Lords, like every other human tribunal, may err; but it does not belong to this Court to consider whether it has done right or wrong. It is our duty to put that judgment on record, and carry it into execution, by proceeding in terms of it. All that the respondents say amount to this, that the House of Lords have committed an irregularity. We cannot judge of that. They must go to the House of Lords, and if they satisfy them, I do not see that any proceeding of ours can prevent that House from rectifying their error, if they are satisfied that there is one. Neither do I see anything to hinder the respondents from appealing against our interlocutor applying the judgment. But, at all events, I think we must apply it; and if we did not, a precedent of most dangerous consequences would be established.
Page: 416↓
Lord Craigie.—There is perhaps a difficulty and delicacy in the case, so far as it may go to impeach the judgment of the House of Lords, which we cannot do: but in other respects I do not see the least difficulty. In the case even of a final decree here, it is competent at any time before extract to get any mistake rectified, or have it recalled when exposed to plain nullities. The House of Lords is a Scotch Court in reference to appeals from Scotland, and it must decide according to Scotch law, therefore I apprehend that what is competent here must be equally so there. In this case the House of Lords has directed this Court to do that which is consistent with its judgment, and just; therefore we are entitled to consider what is just and reasonable in the circumstances of the case, and are not called on to do that which is nimious and oppressive. But if we were to apply the judgment, I apprehend instant execution by removing might take place. In the circumstances, that would be most oppressive; and therefore, as I think a rehearing is competent, Ave ought to supersede applying the judgment till the respondents have had an opportunity of going to the House of Lords. It does not appear to me that, by writing on the petition, the case is removed from the House of Lords.
Lord Justice-Clerk.—We are certainly called on to perform a delicate and important duty, whether we regard the interest of the parties, or the law in general. I conceive, however that there is no such immemorial custom as assumed by Lord Robertson, which requires us forthwith to apply the judgment; neither do I think that the presenting of this petition has the effect to remove the cause from the House of Lords. And if a rehearing be competent, I do not see that it is necessary for us to inquire whether there are such grounds as would induce that House to allow it. To me it appears that the standing order of 1694 decides the question as to the competency of a rehearing; and this is supported by the precedents which have been referred to. The ultimate fate of these applications is of no importance in this question; but I observe that in one case the petition was granted, so that at least it is clear that such petitions have been entertained. Indeed it would be the height of presumption in this Court to decide that a rehearing in the House of Lords is incompetent. The question therefore comes to be, whether we are imperatively required forthwith to apply this judgment? If we were to do so, we must go on to execute it; and thereby the cause would be brought here, and so taken away from the House of Lords. But there is no order on us to do so on the instant;
Page: 417↓
The Court accordingly, on the 3d of December, superseded advising the petition “until the 10th sederunt day after the meeting of Parliament for the dispatch of business.” *
In consequence of this, Messrs. Stewart and Drew, and the Earl of Stair and others, presented petitions to the House of Lords. By the former it was stated, that the judgment was not agreeable to the law of Scotland:—that as the Court of Session had found that the estate of Barnbarroch was affectable for the debts of John Vans generally, they had, in their argument at the bar of the House of Lords, conceived that they were only called on to support that decision, and that the question, as to whether any distinction could be drawn between the different classes of debts, was one which had not hitherto been argued:—that, however, the House of Lords had pronounced a judgment on that question, and that they ought, consistently with justice, to be allowed an opportunity of being reheard generally, and at all events on that point. Their prayer was, “That your Lordships will be pleased to order that the appeal may be reheard, and that you will recal the judgment pronounced, and affirm the decree appealed from; or at least that your Lordships will alter the judgment, so far as to find that the estate of Barnbarroch was affect able for all the debts generally which John Vans owed at the date of recording the infeftment of 1775, so far as the same remained due at his death; or to do otherwise, as to your Lordships in your great wisdom may seem proper.”
By the Earl of Stair and others (who were purchasers under
_________________ Footnote _________________ * See 2. Shaw and Dunlop, No. 63.
Page: 418↓
On the other hand, Mr, Agnew presented a petition, praying that an order should be issued to the Judges of the Court of Session forthwith to carry into execution the judgment of the House in terms of the remit.
After hearing the counsel for the parties, the House pronounced this judgment:—
“The Lords being satisfied, that although the appellant's demand of the rents of the entailed estates, from the period of his accession to those estates, was properly and according to the ordinary forms of proceeding before the House at the hearing of the appeal, and ought, according to such forms and the practice of the House, to have been made a subject of discussion at the hearing of such appeal, if the respondents had conceived they had grounds for disputing such demand, consistently with the judgment of the House in favour of the appellant on the principal question, unless the respondents had submitted to the House that the discussion of that question might be remitted to the Court of Session, being a question which had not been argued in that Court, and the House had thought fit to remit the same accordingly; and the Lords being also satisfied that the particular question respecting such rents had not been argued, or proposed to be argued, at the hearing of the appeal; and conceiving that the neglect of the respondents to argue such question, or to request that the question might be remitted to the Court of Session, had arisen from a mistaken apprehension on the part of the respondents that, as the question had not been discussed in the Court of Session, it was not necessary, or consistent with the forms of proceeding in this House, for the respondents to attend thereto on the hearing of the appeal; the Lords, therefore, conceiving
Page: 419↓
that the neglect on the part of the respondents, either to discuss such question on the hearing of the appeal, or to request that it might be remitted to the consideration of the Court of Session, arose from such misapprehension;—the Lords think fit, under the particular circumstances of the case, to order, and it is therefore ordered by the Lords Spiritual and Temporal in Parliament assembled, that the said judgment be amended by omitting the words “along with the rents from the period of his accession to the entailed estates,” and inserting instead thereof the words, without prejudice to any question which may be made in the further proceedings in the Court of Session touching the rents of the entailed estates, and the application thereof during any period of time.”
And it is further ordered, that as to all other “matters prayed by the said petition of the respondents, the same be rejected, and the said petition be dismissed.”
The appeal in which Mr. Stewart was respondent, was an appeal from the decision of the Court of Session in 1784. The question in discussion upon that appeal it is not necessary, with the view I have of this subject, particularly to state to your Lordships. It was a particular question, whether certain estates were subject to the debts of a Mr. John Vans, the appellant's grandfather. The appellant, the present Mr. John Vans Agnew, was at that time a minor, and entitled only to an estate in tail in the property in question, under what was conceived a strict entail, after the death of his father. The decision in the Court of Session was adverse to his rights, as he conceived, charging the property, notwithstanding the entail, with all the debts due by his grandfather at the time of his death. The suit in which this decree was pronounced, was instituted by two persons of the name of Stewart and Drew, on their own behalf, and as assignees of and interested for the creditors of the late Mr. John Vans; and the question was, Whether the property was or was not subject to all the debts at the time of the death of that Mr. Vans of Barnbarroch, or was subject only to such as existed prior to the infeftment
Page: 420↓
The case coming before this House, your Lordships reversed the decision of the Court of Session, and your Lordships decided that the property was subject only to those debts of Mr. Vans of Barnbarroch which were made real charges upon the estate, before the deed of entail was made a proper settlement by taking infeftment upon it. Your Lordships therefore disposed of the subject.
The petition which has been presented to your Lordships on behalf of Mr. Stewart and Mr. Drew,—who are not the persons that were originally the parties to the suit in 1784, but are only the representatives of those two persons,—the petition which you have now under consideration proceeds upon the idea that your Lordships have erred in that judgment, and that, having erred in that judgment, you ought therefore to review the judgment which you have so pronounced.
In consequence of the petition having been presented, I have looked with the utmost care and attention into all the cases in which it has been suggested that the House has done anything in the nature of a review of its former proceedings. The earliest instance which has been submitted to our consideration, is one which I shall take the liberty of laying wholly out of the case; because, in the first place, the original decision was on the 3d of May 1642, which, your Lordships will recollect, was early during the period of rebellion, after his Majesty King Charles the First had left this part of the kingdom—had demanded entrance into his own fortified town of Hull—had been refused entrance into that town—and had declared the persons who so refused him an entrance guilty of high treason. Proceedings at that time were, after the Restoration, in many instances considered as not very regular proceedings in this House. But that is not the sole objection: because, really and truly, the proceeding was not a proper subject of appeal to this House, for it was an appeal, not from a regularly constituted Court in Ireland, but an appeal from an order of the Privy Council in Ireland—one of those proceedings which had been made the subject of the impeachment of the Earl of Strafford; and your Lordships find, that when the case was ultimately disposed of after the Restoration, when an attempt was made to review the proceedings, it was treated as an illegal and irregular proceeding from the beginning to the end, and one in which the House ought not to have interfered. That case I shall lay entirely out of your Lordships' consideration, on account of the particular circumstances attending it.
Other cases that have been mentioned are really of a description that, if the manner of the proceedings of this House had been at all understood, never would have been mentioned as justifying such an application as that which is now made to your Lordships. It was formerly not uncommon for your Lordships, when an appeal came to this House from a Court of Equity in this country, and there was a doubt upon the question, to direct an issue to be tried, for the purpose of ascertaining the facts; and your Lordships did not upon that issue remit the cause to the Court from
Page: 421↓
The first of this description that I find is Scudamore v. Morgan, in which your Lordships, on the 4th of March 1677, reversed the decree pronounced in the Court of Chancery, and directed such an issue. Your Lordships made orders, and directed the Court of Chancery to make orders, pending the trial of the issue: and after the issue had been tried, your Lordships affirmed the orders and decrees complained of. It is very evident, therefore, that you retained the whole proceeding in your own House, until, upon the trial of the issue, the facts found upon that trial convinced you that the decree which had been pronounced in the Court below was right; but there was no finding of your Lordships, disposing of the cause, until you pronounced a judgment, after that having been done, and then the cause was entirely disposed of.
There was another case of Chute v. Lady Dacre, which seems also to have been most extraordinarily misapprehended. The case of Chute v. Lady Dacre was heard on the 12th of November 1680. The Chancellor at that time had been obliged to withdraw from the House in consequence of illness: but it was not an uncommon thing, I see by the Journals, at that time, for the House to hear an appeal in the form of a committee; and this appeal was so heard. The committee were of opinion, generally, that the decree ought to be affirmed; but it does not appear that any order to that effect was understood to be made, because, on the 19th of November, the House took into consideration the perfecting of the order. In that case they therefore had conceived that they had not completed what they had proposed to be done. This was not on any application of the parties, but on the part of the House. The question that was then proposed was, Whether Mr. Chute's counsel should be heard to certain points only? At length an order was made, that he should be heard to these points. The House gave particular directions upon those points, and having given particular directions to those points, disposed finally by their judgment of the cause, so far as it came before them by appeal. Both parties afterwards petitioned the House against the order that had been made, and the House rejected both the petitions: because, as I conceive, they considered the thing had then passed—that it was res judicata—and that it was not competent to them to hear more upon the subject.
There was a case which came before the House in March 1689, in which the House made a decree, as it was at the time understood, with the consent of all parties. A person of the name of Warren, who was one of the parties to the appeal, afterwards presented a petition, by which he alleged that the decree had been unduly alleged to be a decree by consent. On investigating the subject, that was found to be an untrue assertion. If it had been a true assertion, and the House had been deceived upon the subject, as your Lordships will find in a subsequent case, then perhaps the House might have proceeded, upon that ground, to have
Page: 422↓
There are other cases in which additions have been made, where the House have omitted necessary words. In fact, as your Lordships will see, the omission of those necessary words made what they had done imperfect, and they rendered their order perfect by the insertion of the necessary words. There are other cases in which there have been evident mistakes. Mistakes in the form of a judgment may be amended in the Courts of Law. There is a considerable number in which the House proceeded, as they did in the case of Scudamore and Morgan, which I mentioned some time ago to your Lordships, to direct issues to be tried for the purpose of ascertaining the facts, before they would determine whether they should or should not affirm or reverse what had been done in the Court below; and it seems to have been the practice in those early times to detain the cause in the House until the issues were tried. Your Lordships are aware that now it is the practice, instead of doing that, (which is really very inconvenient,) to remit the cause back to the Court from which the appeal is made, and to leave to that Court the trial of the issues, and the directions that may be consequent upon the event of that trial.
There is a number of cases which are somewhat of a similar description, though not exactly so. Your Lordships will find, that, during the period which elapsed between the Revolution of 1688 and the appointment of my Lord Somers to be first Keeper, and then Chancellor, the Great Seal was constantly in commission, and one of the Commissioners acted as Speaker of this House, and the then Lord Chief Baron acted as Speaker. The consequence was, that the Lord Chief Baron, acting as Speaker, was here simply as Speaker on the hearing of those appeals, and consequently could say nothing upon the subject, but as the House thought fit to propose questions to him. Consequently, from this there arose a habit of proceeding which prevailed for a considerable time, that when the Court below, the Court of Chancery or the Court of Exchequer, had dismissed a bill, if the House of Lords thought it ought not to be dismissed, the House reversed the decree, and did nothing more; the consequence of which was, that it was impossible to know what the Court below was to do. They did not remit to the Court below to do what was fit to be done in consequence of the reversal of the decree; they did not in any manner express to the Court below what decree ought to have been made, but they simply reversed the decree; and they seem, in consequence, as it would appear, of the representations of the officers of this House that this was the proper way of making their orders, to have persisted in this practice until Lord Somers became Keeper. When Lord Somers became Keeper in 1693, he obtained an alteration of that
Page: 423↓
Another case of somewhat the same description was the very celebrated one of Philips v. Bury. There the House pronounced a judgment simply reversing the judgment of the Court of King's Bench. The House having simply reversed the judgment of the Court of King's Bench, it was impossible to do anything in the case, and the parties therefore petitioned the House on the subject in 1694, for the purpose of knowing what was to be done, representing that it was impossible for the Court of King's Bench to pronounce any judgment, their own judgment being reversed: that they could not pronounce a new judgment upon the subject; but that this House should pronounce that judgment which the Court of King's Bench would have pronounced, if they had seen the case in the light in which it appeared to this House. The House accordingly ordered the Chief Justice to attend; and your Lordships will find, that upon his representation, stating that it was impossible to proceed if the judgment of the Court of King's Bench was simply reversed without more, the House of Lords required the Chief Justice to state what would have been the judgment of the Court of King's Bench, if they had had the same view of the case which the House had had; and accordingly you added to your judgment of reversal that further judgment, without which there could be no justice in the case, but it would have been entirely inoperative.
I think I have pretty well shown to your Lordships what is the nature of those cases in which the House has done anything upon applications of this description, except cases in which there had been some clerical errors—some evident and palpable mistake, which had nothing to do with the merits of the case, where, for the purpose of making the judgment perfect, the House have thought fit to make an alteration of their original record; for instance, in a case where they had affirmed a judgment, with costs out of pocket not exceeding £200. That was no judgment at all, because there was no person who could ascertain what were the costs out of pocket not exceeding £200,—the House not having referred it to any person to ascertain what were the costs out of pocket not exceeding £200; and therefore the order was so imperfect, that nothing could be done upon it. This was afterwards brought before your Lordships, in regard that there was no officer of the House to tax costs. The alteration made was, by leaving out the words ‘costs out of pocket not exceeding;’
Page: 424↓
In another case the House had in their judgment spoken of the officer of the Exchequer, who in that Court acts as a Master in Chancery. It used the word ‘Master,’ instead of the words ‘Chief Remembrancer of the Court, or his Deputy.’ It is perfectly clear that your Lordships' order was imperfect and inoperative in consequence of that error; and the House, on its being pointed out, directed that order to be altered, by leaving out the word ‘Master,’ and substituting the words ‘Chief Remembrancer, or his Deputy.’
One case has been very much spoken of, which is that of Luttrell v. Lord Irnham. In that case the circumstances were these:—When the appeal came before the House, there was produced, on the part of the respondent, an agreement between the parties, which was to put an end to all litigation. The House being deceived by this, they thought fit to say that they would not proceed further in the cause; and they, rather hastily perhaps under the circumstances, pronounced an order for affirming the order of the Court below. It appeared that the instrument that had been produced did not relate to the particular subjects in dispute, and Mr. Luttrell therefore applied for a further hearing; for it was quite a surprise upon the parties and the House; and the House upon that proceeded to hear—in fact, they had not heard before—they had determined nothing they did then enter into the merits, and they affirmed what had been done in the Court below.
There is another case, the case of Devereux v. Phelan, in which an application was made for a rehearing, alleging that the party was not before the House; for that, though he had been nominally a party, he had had no notice. Supposing that to be true, the House thought it was a case in which they ought to give relief, and they investigated it. It turned out that this was a most gross imposition. The petition was dismissed, and the petitioner was ordered to be taken into custody; but he ran away, otherwise he would have been punished for his imposition.
I apprehend, therefore, that the cases that have been referred to are nothing more than these:—First, the party who made the application was a party named in your judgment, but who was not before the House, as was supposed to be the case in Devereux v. Phelan; and the House certainly would not permit its judgment to injure a party who was not before them. In another case, the judgment pronounced was in itself imperfect, so that that which was intended to be done was incapable of being carried into execution, from the nature of the order of your Lordships; or, as in the case of Phillips v. Bury, from a supposition that it was not necessary for the House of Lords to make any order, further than to reverse the judgment of the Court of King's Bench, and to leave it to the
Page: 425↓
Others are cases of errors in the form of proceeding, where the words made use of are inapplicable; as, for instance, that case where the word ‘Master’ was introduced instead of the words ‘Remembrancer of the Exchequer, or his Deputy.’ Any informality of that description your Lordships will correct; but, I take it, no instances can be found of your Lordships rehearing a cause for the purpose of altering the substance of the judgment—that is, for the purpose of doing that which no Court does, except under the particular circumstances which the practices of certain Courts admit of. Your Lordships know that in the Court of Chancery, for instance, and in the Court of Exchequer, rehearings are permitted under certain circumstances; but, if a decree has been signed and enrolled, the appeal must be to this House. Formerly this House would not allow of appeals until the judgment was perfected and enrolled, though now it is otherwise. That practice was found to be inconvenient; and the House has acted otherwise, and permitted appeals when the decrees were only in paper. If a case comes from a Court of Law, and the House reverses the judgment, it must pronounce that judgment which the Court below ought to have pronounced, if it had been of the same opinion with the House. If it omit to do so, its judgment is imperfect; and in that case also the House has pronounced that judgment,—but it did not rehear the cause even in that case,—but it pronounced that judgment which was rendered necessary in consequence of its judgment being imperfect, by its merely reversing the judgment in the Court below—imperfect, because it did not add that judgment which would have been a right judgment, if the Court below had entertained the same opinion which the House did of the merits of the case.
Under these circumstances, this petition of parties, under the names of Stewart and Drew, being simply, “That your Lordships will be pleased to order that the appeal may be reheard, and that you will recal the judgment pronounced, and affirm the decree appealed from; or at least that your Lordships will alter the judgment, so far as to find that the estate of Barnbarroch was affectable for all the debts generally which John Vans owed at the date of recording the infeftment in 1775, so far as the same remained due at his death; or to do otherwise, as to your Lordships in your great wisdom may seem proper;” it is really and truly nothing more than desiring a rehearing of the whole case upon its merits.
Page: 426↓
The ground upon which this petition seems to be put is, that when the application was made to the Court of Session in Scotland to execute your judgment, the Court of Session in Scotland thought your judgment wrong; and thinking your judgment wrong, they would not execute your judgment immediately, but they would give time to the parties to apply to the House to rehear the matter, and induce your Lordships to alter your decision, and make it conformable to what the parties thought it ought to be. Putting it in that point of view, it appears to me to be a very material question. If the Courts from which appeals are brought to this House can take upon themselves to say they will suspend the execution of the judgments that you pronounce, because they conceive that those judgments are wrong, I know not in what manner justice is to be administered. If they can do it once, they may do it twice—three times;—they may suspend the execution of your judgments as long as they think fit, because they consider them to be wrong. It is true, the suspension here was not for a great length of time. It was, however, a suspension for some months, so as to allow the parties an opportunity of making this application to your Lordships. Now it seems to me, that if I were convinced your judgment was wrong, it would be infinitely more mischievous in its consequences to permit this proceeding to take place, than to suffer your wrong judgment to remain unaltered. It is a judgment upon the merits. If a judgment can be reviewed in the manner in which it is sought to be reviewed in this case, I wish to know where there would be an end of litigation. I take it to be, generally speaking, a principle, (with the single exception I have before noticed,) that when a final judgment is pronounced by a Court of competent jurisdiction, that Court has no right to alter its judgment; and it cannot be altered, except by a writ of error to a Superior Court. If the decisions of this House, acting as a Court of ultimate resort, are subject to this sort of review, where is to be the end of litigation upon this subject? and what is to be the consequence to this House, burdened as it is with the numerous appeals that come before the House, if they are also to review their own decisions, because the Court below choose to think their own decision was right, and the decision of this House was wrong? It strikes me that it would lead to mischiefs almost incalculable; and therefore I conceive that your Lordships ought to reject this petition of Mr. Stewart and Mr. Drew.
With respect to the other petition—that of Lord Stair and a number of other persons—it is very nearly of the same nature; but they do in their petition allege something more. They were persons who had been purchasers of part of the estate in question, which the Court of Session had been authorized to sell by an act of Parliament, in a suit to which the heirs of entail were to be called as parties. The suit that was instituted was brought by a person who was entitled to possession under the entail, for the purpose of charging the property, in his own relief, with debts of his father, to the utmost extent to which it could be carried; and the proceedings were had in that cause without bringing
Page: 427↓
There is one thing suggested in this petition, to which I will call your Lordships' attention, because perhaps it might admit of some discrimination. At the same time I wish your Lordships to consider the difficulty which presents itself on that point. Your Lordships' judgment considered the appellant in that case (who had been one of the minor heirs of entail of the property sold) entitled to the possession of the lands that had been the subject of sale; and your Lordships added,—with the rents which have accrued subsequently to the death of his father, when his right opened. Now it was at one time insisted that that had not been sought in the Court below; that, I see now, is abandoned, and rightly so, because unquestionably it formed a part of what was demanded in the summons; but it is observed, that, according to the practice in the Court below, the summons being to reduce the instrument by which the property had been conveyed to those persons, if they had decided, as the House have decided, as to the right to the reduction, they would not have considered the question of the interim profits as immediately before the Court, without giving an opportunity to the persons who were interested in respect of those profits, to enter into the discussion whether they were or were not to be considered as bonâ fide possessors, and therefore not liable to answer for bygone profits, and particularly previous to the institution of the process of reduction. My Lords, that has had some weight on my mind; but, at the same time, if that really was not particularly discussed before your Lordships, it was the fault of those who attended your Lordships upon that occasion; because, as the appeal to your Lordships was to reverse what had been done in the Court below, and as your Lordships must pronounce a judgment following upon that reversal, it did become them to urge before your Lordships any matter that might have qualified the order which your Lordships might make with respect to the appeal before you. The only difficulty existing upon that subject is this, that your Lordships have clearly adverted to the whole of the proceedings in the Court below. If, in the Court below, a judgment would have been pronounced upon that part of the summons which prayed your Lordships for the possession,
Page: 428↓
Whether these persons could or could not have justified their claim to be exempted from the charge of rents and profits from the time that the appellant's right accrued, on the ground of being bonâ fide purchasers, is a question of some difficulty perhaps, considering all the circumstances of this case. According to my recollection, it appeared upon the evidence, that some of them stand in a very different situation in that respect from others. But, my Lords, there is another consideration which is important upon this part of the case. Purchasers of this description always take assignments of the debts for the payment of which the estates are to be sold, and they take that assignment of the debts as a part of the security for their title. All these parties had the assignment of these debts. Now, if any of them can establish those debts against the estates, under your Lordships' judgment pronounced with respect to how far the estate was liable to the debts of Mr. John Vans—if they can claim those debts, with all the interest for this length of time—and if they can at the same time retain the interim profits, they will certainly not be in a very conscientious situation with relation to the appellant. I own I have on that part of the case considerable difficulty, and I should very much like to hear what the learned Lord on the Woolsack thinks upon the subject. With respect to the prayer of this petition, so far as it seeks a general rehearing, I think it ought to be rejected upon the same principle as the other, to which I have before referred.
There is a third petition of the appellant, in which he prays that the Court below may be directed to proceed according to the direction of your Lordships in the cause. I presume, if your Lordships dispose' of the other petitions in the manner I have proposed, that will be a matter of course, without a particular order from your Lordships.
Page: 429↓
The next petition is a petition presented by the Earl of Stair and several other persons; and that petition prays, first, That the appeal may be reheard generally, and that you will recal the judgment pronounced, and affirm the decree appealed from; or at least that your Lordships will be pleased to order the said cause to be reheard on such other points aforesaid as you shall see fit, and to make such alteration upon the said judgment as to your Lordships, upon such rehearing, shall seem just. The first part of this prayer is calling upon your Lordships to rehear a cause which has been heard upon its merits; and the second prayer in this petition is referring your Lordships to certain points mentioned in the body of the petition, and desiring your Lordships to rehear the cause upon such of those points as you may think fit.
The third petition is a petition presented by John Vans Agnew, the appellant before your Lordships last year, and in whose favour the judgment now complained of is pronounced; and that petition, after stating what has passed in the Court below, and the interlocutor of the 15th November 1822, by which the Lords of Session “supersede the consideration of this petition until Tuesday next, with the view of allowing the respondents to be then heard by counsel thereon;” and finally, having resumed consideration of that petition, ‘supersede advising the petition.’ That was a petition praying that the judgment of this House might not be carried into effect “until the tenth sederunt day after the meeting of Parliament for the dispatch of business.” And this petition prays that your Lordships will be pleased to take the matters into consideration, insisting that, by this proceeding of the Court of Session, the judgment of your Lordships' House, pronounced in favour of the petitioner upon
Page: 430↓
With respect to the last petition, I cannot but persuade myself that it would be totally unnecessary to make any order, if you were pleased to be of opinion that you can do nothing upon the other petitions. I cannot bring myself to think that the Court of Session would require to be told by any order of your Lordships that they were to abide by that judgment. I should not act towards them with the respect I bear them, both as a body and as individuals, if I did not perfectly persuade myself that such order would be unnecessary. I am still willing to consider what has passed, as produced, not by that Court acting upon any notion that the House of Lords was wrong; because, whether the House be right or wrong, the judgment of this House must be obeyed by all the Courts below, although I have lived long enough in the profession to which I belong, to know perfectly well that in many instances in our Courts, as well as in the Court of Session, the judgments of this House have not been altogether recognised as right by those who in the Courts below judged of them; but all the Courts have felt that they were under the obligation to take those judgments to be right in the matter in which they were pronounced, however far they did or did not apply the doctrines maintained in those judgments to other cases not exactly similar in circumstances; and I am desirous, whatever might have been said by the counsel in the Court below, arguing with a degree of zeal founded upon their own opinion as to the judgment in the House of Lords, and attending to what has been reported to be said by the Judges in the Court below, in which it appears to me the Judges treated this House with great respect, I cannot help saying that your Lordships have a standing order about rehearing causes; and looking at this as a case in which the Court of Session have twice decided contrary to the ultimate decision of the House of Lords—looking upon it as a case in which the decision was a very important decision with reference to the effect of the act of Parliament, they seem to have had such a notion about the nature and effect of your Lordships' general order upon rehearing, as made it, in their judgment, till the matter was considered in this House, fit to give the parties an opportunity of applying to have the matter reheard.
Taking this course, the question your Lordships have to decide relates to the rehearing of a cause upon its merits; and it is not to be denied that you have on your standing orders one which, in its terms, is likely enough to mislead those who do not very accurately understand what the proceedings of this House are. My Lords, that standing order was made upon the 14th of February 1694, in which it is ordered, “That no petition which relates to the rehearing of any cause, or part of a cause, formerly heard in this House, shall be read the
Page: 431↓
Page: 432↓
Looking at the constitution of our Courts, give me leave to say, that I apprehend, upon grounds very satisfactory, looking at the general interest, it is infinitely better that the matter should be here finally decided upon one hearing, even if the decision is wrong, than that there should be a new litigation unknown to our proceedings, as to this matter of rehearing;—nor can any one say where it is to stop. In general, it is to be hoped the decisions of the House are right; but, whether right or wrong, it has been taken for granted that considerations of infinitely greater moment than the considerations which arise out of the particular mischief in particular cases, have led this House to determine, that where a matter has been heard between the parties at the Bar, and the House has given its decision upon the merits discussed by those parties, the House will not rehear the cause. And give me leave, most respectfully—for it becomes not the lips of a Judge to utter anything not respectful to those who hold judicial situations—give me leave only to ask, if we are to have hearings and rehearings, would have been accomplished with respect to the appeals upon your Lordships' table in the last twenty years? I state that, with the highest respect for the individuals who
Page: 433↓
Now, let us look at what our rehearings are. First, allow me to place myself in this part of the island. Do your Lordships think I have lived so long in the profession, without knowing that counsel have frequently retired from that Bar with something more than a doubt whether the judgment pronounced on this side of the Bar was right ? But it was of very little consequence what we counsel thought., But have 1 not heard every day in my life—sometimes in the King's Bench, and sometimes in the Court of Chancery—Judges avowing that they could not agree in the
Page: 434↓
In looking at this case, I have wished very much to learn, what I have not learned, whether there is any such instance, or could be, of a rehearing of a Scotch cause in the Scotch Parliament. I have not heard that there is any such instance. Then, if we look at the Act of Union, as making this House the Court of dernier resort in Scotch appeals, we cannot apply any practice of the Court of Parliament in Scotland to the rehearing of Scotch appeals in England.
Look at English appeals. In the first place, as to the precedents quoted from the particular period of the century before the last, it is enough to say, if they amounted to anything, that if you look at them seriously, you cannot make much of them: for I believe I speak that in which I wish to be correct, when I say this of the precedents of that period as respects this House. But if you take cases where there are clerical errors, where judgments have been obtained in the way in which many or some judgments have been obtained—that is to say, a party has come to the Bar and argued his case, and suffered the House to suppose that notice was given to the other party, when that was not the case,—the observation made has been, You come not for a rehearing, but a hearing. I will take the case of Luttrell v. Lord Irnham, where an appeal was supposed to be barred by an order made by consent. It was shown to this House, upon an application for a rehearing, that it was all a mistake, and a surprise upon the House—that it was not such a consent as it was represented to be. So, where a fraud is practised upon the House, and the party, by the operation of that fraud, obtains the judgment of the House, a judgment so obtained by fraud upon your Lordships is no more than the judgment of any other Court obtained by fraud, and is an absolute nullity. None of the cases establish this—that this House will rehear a cause upon its merits;—and when we come to consider how many cases there are in which there must be a very strong appetite to rehear, and without any attempt being made to rehear it, and
Page: 435↓
There is another point, as to the act of the late King for the administration of the law in the Court of Session in Scotland. It has been said that that formed an objection to one of the parts of your Lordships' decision. In the first place, it does not apply here: and if it did, there is no foundation for the observation.
There is one other point which I confess has distressed my mind extremely, and that is the point which the learned and noble Lord adverted to the other day—I mean about the rents and profits—the time tiom which an account of the rents and profits ought to be taken; but I do not think that these petitions very fairly represent that, because the way in which they put that is this: They say that the applications to this House take no notice of the rents and profits. That is not so; because, if you look at the cases, and particularly the case as far as it affects Balfour's purchase, you will see, as to his purchases, the printed Cases expressly state, and no man can doubt as to that, that as to those an account of the rents and profits should be given. But the way in which it is fairly put is this: They 6ay that the first question was, Whether the purchasers were liable at all ? And that question being decided by the Court of Session in the negative, they then say, that the consequence of that was, that there was no occasion for your Lordships to address yourselves to the consideration of the consequential question, how they were to account for the rents and profits, if their purchases were set aside. Then it is said, it was not argued at the Bar here—that the question was not discussed—and that the regular course of proceeding would have been to have sent back the question to the Court of Session, and that they would have taken up the consequential question, having the opinion of the House of Lords upon the primary question: and that it would have been heard, and the decision of the Court of Session would
Page: 436↓
Now I think I shall not step beyond what is just to myself when I say, that it has not been my habit to advise your Lordships to decide, in this House, in the first instance, points upon which the opinion of the Court of Session has not been taken; but I cannot admit it to be, nor do I admit it to be, out of the power of this House to do so; and it would be an extremely mischievous thing to say, that that shall be generally done in all cases. Suppose a bill were filed in the Court of Chancery here, to have a man declared the trustee of an estate, and calling upon him to account for the rents and profits, according to the principle known in equity: If the Court had said you are not a trustee, they would not trouble themselves with arguing the question as to the principle upon which, or the time at which, the account of the rents and profits was to be taken: but if that case came to this House, it would be in the discretion of this House whether it would decide that point or not, if it reversed the judgment of the Court below, which disclaimed him to be a trustee. So I take it to be open for the party here, where the matter is merely brought in the form of appeal. Whether it be a distinct mode of proceeding, or whether another mode of proceeding had not better be adopted, is another question: but the House, if it pleases, may decide that, if it is brought before it. I cannot agree with this petition, that the question has not been brought before it, because the application to the Court of Session, at the conclusion of the summons, is for reducing all these purchases, and for an account of the rents and profits received by any of the purchasers; and the interlocutor appealed from is an interlocutor which in form decides all questions, because, if you will look at it, it assoilzies the defenders from all the conclusions of the summons; therefore an appeal from an interlocutor assoilzieing the defenders from the whole conclusions of the summons, opens to us the discussion of the whole matter.
There is another circumstance, which, if we have been wrong in this, which I do not admit nor assert we have, tends to show the real apprehension in the minds of the gentlemen. We put it to the Bar whether we need trouble ourselves with that consequential question, and not a. single syllable was said to us at the Bar upon the point. But there is something more to be said; because, unless my memory very much deceives me, we did take the trouble, after drawing out the judgment, of submitting that judgment to the perusal and inspection, and consideration and reconsideration of the agents; and I never heard one word of objection from anybody as to the amount of the rents and profits, as they were directed. There is a difficulty, therefore, which I confess I have upon that question, and it is the only point of the case upon which I would reserve myself for two days' more consideration; for as to rehearing the case upon the merits, that cannot be done; but as to that point of the rents and profits I shall desire two days' more consideration, looking upon it to be extremely dangerous (unless you can bring the consideration of that part of the case within the principles of some of those cases upon which, to a
Page: 437↓
It was my intention, looking at those Scotch statutes, to have moved your Lordships to proceed to final judgment this morning in the case of Mr. Vans Agnew. In consequence of its having been intimated to me that there was a case referred to in the Journals of the Hojuse of Lords in Ireland, which bore upon the question, I have thought it right to refer to that case, and shall immediately state its effect.
With respect to the case from Ireland, it seems that in the year 1787—I think in May 1787, according to the Journals of the House of Lords in Ireland—there was a case of Magrath v. Lord Muskerry heard before
Page: 438↓
Page: 439↓
“Respecting the obvious and proper point of the argument, this much I shall presume to say, that if causes were to be reheard, there would then be no end of decisions. This House would then he a House of resorts, and not of dernier resort—a House of many applications, and not of final judgment; and the celebrated Latin epigram upon the tediousness and uncertainty of the Aulic Council at Spires might then be wrote over the front of this House, Lites ibi spirant, sed nunquam expirant.”
Having stated these cases to your Lordships, there still remains the single consideration, what is to be done as to the account of the rents and profits from the period when these purchases were made ? Whatever may be done in this case, it will be necessary to take care, by some proceeding in this House, that cases of that kind shall not happen again. The necessity of attending to that, and the circumstance of my having discovered the above case since we were last here on Friday, lead me humbly to propose to your Lordships to postpone the final judgment in this case until Wednesday next.
Page: 440↓
Solicitors: J. Chalmer,— Fraser,— Spottiswoode and Robertson,— Solicitors.
( No Papers.)