1836. enforced, or have added explanatory matter, or have reconciled inconsistencies. But with the exception of RAJUNDERone case in 1669,* of doubtful authority, here, and The following is an abstract of the case alluded to by Lord Brougham, extracted from the records in the Council office. ON APPEAL FROM JERSEY. Dumaresq v. Le Hardy. 11 March 1667-68. Upon reading this day, at the board, the humble petition of John Dumaresq, in the behalf of himself and co-heirs, showing that the petitioner, not having all his counsel by him when the business between him and John Le Hardy, in the behalf of his wife, about the succession of Richard Dumaresq, jun., was heard before the Lords appointed a Committee of this Board for the Affairs of Jersey. It happened that through that failure it was misrepresented to their Lordships, and the matter of fact otherwise stated than it ought to have been, and consequently the point in question mistaken, and the cause determined against the petitioner's clear and undoubted right, and contrary to the law and custom of that island, and therefore praying that the said business might be reheard, to the end that the point in question, being stated aright, the justice thereof, and your petitioner's right may appear; which His Majesty, taking into consideration, and also that the petitioner's counsel, whom he had entrusted in all the particulars of his business, could not be present at the said hearing, did order that the said matter in controversy be reheard before the said Committee of the affairs of Jersey, who, upon consideration of what shall further be alleged on the petitioner's behalf, are desired to report their opinion concerning the same to His Majesty in Council; and it was further ordered that the execution of the order of the board of 28th February last be suspended until the said cause shall be reheard, and thereupon determined. On 18th March 1667-68, a summons was issued against the defendant, who was represented to be absent in Jersey. On 26th March 1669, the cause came on again for hearing before the Lords' Committee for the affairs of Jersey, when they reported that, in pursuance of the order of 11th March 1667, requiring them to rehear the cause, &c., they had accordingly reheard NARAIN RAE ย. BIJAI GOVIND SING, 1836. another in Parliament of still less weight in 1642 RAJUNDER- (which was an appeal from the Privy Council to Par NARAIN RAE v. BIJAI GOVIND SING. the same, and as well the matters of fact, as also the laws and customs of the island relating thereunto had been fully laid open before them, and they were of opinion that albeit a certain sentence, bearing date the 24th September 1667, was given in the said island, whereby the said succession in the said Richard's estate was adjudged to the said John Le Hardy, in right of his wife, and that the same was grounded on a certain deed of partage made upon the 22d day of May 1651, between Edward Dumaresq and Richard Dumaresq, his brother, and John Dumaresq, eldest son to the said Richard, as being a distribution consented to, and accepted by, the said Richard, father of the said Richard, the younger, and father of Mary the wife of the said John Le Hardy, and also consented unto, and accepted by the said John, deceased, the eldest son of the said Richard, the elder, and the father of the said Thomas Dumaresq, the plaintiff; and albeit the said sentence in the said island received a confirmation from this board upon the 28th February 1667, yet, on the rehearing of the whole matter, both of fact and law, they do now find just cause to recede and depart from the said sentence and confirmation thereof, and that the succession of Richard, the younger, ought not to go to the said John Le Hardy, in right of his wife, in regard they do now find, which was not made out to them before, that the said deed of partage which did first settle the estate, is, by the law of the isle, utterly void and null, as well because it did divide the estate unequally, which, by the law of the island, could not be done, as also because the consent that was, could not make it good, there being children of Richard, the elder, under age; neither can the division of an estate, made by any person whilst he lives amongst those that are to succeed him, exclude or debar the succession that is by law; and that they are of judgment, notwithstanding the said deed and sentence, and confirmation aforesaid, that the inheritage of Edward, after the eldership due to the issue of John, first deducted, ought to be divided into three parts, whereof one part is to go to John Le Hardy, in right of his wife, and the other two-third parts to the issue of the said John Dumaresq, as if no such deed had ever been made; all which, &c., &c., was duly confirmed by His Majesty in Council. There is another case, in the books of the Council Office, which 1836. NARAIN v. BIJAI GOVIND SING. liament, and at a time when the Government was in an unsettled state), no instance, it is believed, can be RAJUNDERproduced of a rehearing upon the whole cause, and an entire alteration of the judgment once pronounced. It may be material to observe in what way the House of Lords has exercised this power of correcting errors which have occurred in drawing up the judgments pronounced. The cases are chiefly where some trivial mistake made it impossible to carry the decree into execution, as in Hill v. Spence (a), April 1808, a reference having been directed to the Master of the Exchequer in Ireland, and there being no such officer, their Lordships amended the order by inserting "the Chief Remembrancer or his deputy," or for the purpose of supplying a plain omission and executing the manifest intention of the decree, as in Dent v. Buck (b), March 1702, where an order had been made, reversing the decree of the Exchequer in England, affirmed in the Exchequer Chamber, dismissing a bill for tithes, on the foot of an agreement, and no direction had been given to proceed on hearing or determining the right to tithe. This direction was added to the judgment of reversal. Or where, as in Oundle v. Barton (e), January 1692, a charity information had been dismissed, and the has been referred to as an instance of the Council permitting a rehearing; but that was before the order made on the first hearing had been confirmed by the King, and was also, in a criminal matter from Minorca, being a petition for the remission of the sentence passed upon conviction of perjury. The Council having, upon the first hearing, remitted the whole sentence, afterwards reheard the case at the instance of the Governor, when a partial remission was substituted. Re Martin Fonaris, 29th July 1719. 1836. NARAIN RAE v. BIJAI GOVIND SING. Lords reversed the decree of Lord Chancellor Jeffries, RAJUNDER dismissing, but gave no decree for establishing the charity, and the Lords Commissioners had refused to make such decree. Upon the petition of the AttorneyGeneral (Sir John Sommers) the House of Lords amended their former order by adding a direction to decree for the prayer of the information. So where the Courts below had misunderstood the orders of the House, to save new appeals explanatory additions have been made, with orders setting aside whatever had in the meantime been done below under the misapprehension, as was done in Calthorpe v. May (a), April 1712. But the instances are numerous, and at all times, of rejecting applications for rehearings and fundamental alterations, on whatever grounds made; and often in cases of apparent merits and great claims to indul gence. Their Lordships have carried their discretionary December 1690, Page v. (a) Lords' Journ. 19 vol., 435. (b) Lords' Journ. 14 vol., 601. (c) Lords' Journ. 47 vol., 116 & 322. (d) Lords' Journ. 55 vol., 565. 1836. NARAIN RAE BIJAI GOVIND SING. should be delivered up, and the residue divided among the other creditors. The Lords reversed this decree, RAJUNDERand ordered the party to be treated in every respect as a mortgagee, paid his full mortgage money with interest, costs, &c. The other creditors applied to the House to rehear and alter. The House refused to allow any rehcaring except on one point, the application to be permitted to try their title at law. This was granted; the judgment being amended by striking out all after the order reversing the decree below, namely, directing to sell and distribute, excluding the mortgagee, and instead of the part struck out inserting an order that the respondents be allowed to try their title at law. Afterwards, by a second amendment, their Lordships, on the appellant's application, added a particular direction in furtherance, however, of their former one, that the question should be particularly tried whether or not the mortgage deed had been fraudulently obtained. It is to be observed, as Lord Redesdale has remarked, that proceedings of this kind were more frequent during the long period immediately after the Revolution, when the Great Seal was in commission, and the Speaker of the House of Lords was a commoner, and could take no part in its debates. In Page v. Hamilton, 1809, the House, after hearing counsel, rectified several material errors which had been introduced into an order of August 1807, the order of amendment stating expressly that the original judgment had directed variations of the decree below, inconsistent with the parts of it affirmed by the same judgment, which rendered the decree contradictory; and that it had described parties as trustees who were not trustees, and directed an ac |
