1836. Where a party makes default in any of the Courts below, and the judgment is perfected against him RAJUNDER tioner who was the heir of the family, (his eldest brother, Alexander, being dead,) and the other heirs whom his father had called to the succession, were, in effect, excluded from the enjoyment of the estate. The petitioner stated that he had only recently discovered the real facts of the presentation and dismissal, by consent, of the original appeal, having been misled by the statement in the preamble of the Act granting the estate to Simon Fraser, that the judgment of the Court of Session had not been appealed from, and submitted that, being an infant, and unrepresented at the time of the dismissal of the appeal, to which Mr. Ross was not authorized or empowered to consent, he ought not to be bound thereby, and insisted that no laches could be imputed to him, as no title had accrued to him under the original settlement, until the death of Simon Fraser without issue; the petitioner prayed the House to take into their consideration the special matter of the manner in which the appeal, entered in 1750, was dismissed, and the decree of the Court of Session affirmed of consent: and to allow him to be heard thereon by counsel, and on the facts being verified, to declare the dismissal of the appeal and affirmance of the decree, obtained as they were, null and void, and of no effect in law, and that the appeal was to be held as yet before the House, undiscussed and undecided upon, and open to be prosecuted by the petitioner to a determination: and to allow it to be proceeded in accordingly as if the appeal had not been dismissed, and the decree affirmed, or as if no such proceedings had taken place in any manner or way. On the 23d day of November, after hearing counsel and debating thereon, the following order was pronounced by the House: "That the said petition and appeal be, and is hereby dismissed this House, and that the said interlocutor therein complained of be, and the same is, hereby affirmed." In Blane v. Cassilis, A. D. 1810, Lords' Journals, 47 vol., 741, 2, 3, the petition of the appellant, that the House would reconsider a former judgment, pronounced 24th May 1805, was, after Committee appointed to search for precedents, and their report thereon, rejected; and in Parker v. Potts, A. D. 1815, Lords' Journals, 50 vol., p. 67, a petition to vary the judgment pronounced was rejected, NARAIN v. BIJAI GOVIND SING, 1836. NARAIN RAE V. BIJAI GOVIND upon that default, it cannot be amended upon any sugRAJUNDER gestion, unless there has been misprision, and the judgment has been entered contrary to the truth of the proceedings, as judgment for the defendant instead of nonsuit. So where on writ of error the plaintiff does not appear after joinder in error, the judgment is of affirmance. But in this case no final judgment can be said to be pronounced, because the party making default may proceed again. Whereas, if in the Courts of the last resort, the like judgment of affirmance be pronounced, the matter is final, and that judg ment stands as a precedent in whatever points were raised in the cause. For this reason, where the appellant or the plaintiff in error does not appear in the House of Lords on his writ or appeal coming on for hearing, the judgment is to dismiss merely, and not to affirm, unless their Lordships have considered the merits of the case. This they may do whether the party appealing shall appear or not, for they may consider the cause upon the printed cases laid before the House, though one of the parties does not appear to argue the question, or even though neither party argue it; nay, though there be no printed cases delivered in, provided that the proceedings in the Court below, being before their Lordships, are by them taken into consideration, and that the matter in question appears in the proceedings, there seems to be nothing which should absolutely preclude them from giving judgment either against or for the absent party. But then there must have been a hearing of the case, and on both sides; that is, either a hearing at the bar, or by the cases delivered, or by examination of the whole proceedings below, as well on the one side as on the other. In no other circumstances would it be safe to give a judgment of affirmance in the last resort, that judgment making a precedent binding on all other courts, and that judgment also being conclusive for ever between the parties. The safer and better course seems to be that where the appellant does not appear, and there are no means of knowing the grounds of his appeal, the order should be to dismiss without affirming. In this case he could not be let in to renew his appeal without satisfying the Court as to the grounds of default, and complying with such conditions as should be prescribed. Where the respondent appears not ex necessitate the Court must hear and determine the case upon the best consideration of its merits which the matters before the Court enables it to give; but in neither case can the judgment be pronounced as of the course for the party appearing, merely on the ground of the other party's absence.* In Strickland v. Coker, A. D. 1685, Lords' Journals, 13 vol., 711, after various proceedings, at the hearing of the cause (an appeal from the Conrt of Chancery), no counsel appearing for the appellants the cause was directed to stand over, the appellants being ordered to pay the costs of the day, and another day fixed for the hearing: in Swinnock v. Sutton, A. D. 1685, Lords' Journals, 15 vol., 23, the appellant not appearing at the hearing, was ordered to pay for the attendance of the respondent's counsel. Thickness v. Mainwaring, Dean and Chapter of Lincoln v. Pye, Price v. Watts, Maddison v. Smith, A. D. 1702, Lords' Journals, 17 vol., 112, were all cases of dismissal for want of prosecution: but in the case of Smith v. Blow, A. D. 1712, Lords' Journals, 19 vol., 408, a course similar to that which has prevailed in the Privy Council was followed, as appears by the following extracts: 27 March 1712, "Upon reading petition of appeal of John Smith, from an order of the Court of Chancery, made 10th day of March, in a cause wherein the petitioner was plaintiff, and Grace Blow, widow, and others, defendants, praying 1836. RAJUNDER NARAIN v. BIJAI GOVIND SING. 1836. In the present case the form has been adopted RAJUNDER- which has been used in a great majority of instances, NARAIN RAE V. BIJAI GOVIND SING. the reversal of the said order; it is ordered by the Lords Spiritual and temporal in Parliament assembled, that the said Grace Blow, &c. may have a copy of the said appeal, and shall and are hereby required to put in their answer or respective answers thereunto, in writing, on or before Friday 18th of April, at 11 o'clock." 28th April 1712, ib., p. 433, "This House being moved on behalf of Grace Blow, widow, and others, respondents, to the appeal of John Smith, clerk, that a day may be appointed for hearing the same; it is ordered, &c., that the House will hear the said cause by counsel at the bar, on Friday 9th of May next." 7th May 1712, ib., 442, Upon reading the petition of Grace Blow, widow, and others, respondents, to the appeal of John Smith, clerk, praying that the hearing of the said appeal, which is appointed for Friday next, may be put off for some time, the petitioner's clerk in Chancery, in whose custody their papers are, being fallen lame at Northampton, and the appellants consenting; it is ordered by, &c., that this House will hear the said cause by counsel at the bar, on Monday 19th, at 11 o'clock. "Whereas this 19th May 1712, Lords' Journals 19 vol., 452. day was appointed for hearing counsel upon the petition of John Smith, clerk, from an order of the Court of Chancery, made 10th day of March last, in a cause wherein the appellant was plaintiff and Grace Blow, widow, and others, were defendants, as also upon the answer of the said Grace Blow and others, put in thereunto counsel appearing for the respondents, but no counsel for the appellant it is ordered and adjudged by the Lords spiritual and temporal in Parliament assembled, that the said petition and appeal of John Smith shall be, and is hereby dismissed this House; and that the order therein complained of shall be, and is hereby affirmed. So also in Sharp v. Stewart, A.D. 1806, Lords' Journals, 45 vol., 467, the following abstract of the proceedings shows the course pursued to have been similar. "This day being appointed for hearing counsel on the petition of appeal of James Sharp, weaver, in Newburgh, since deceased, which was brought into this House 10th February 1801, and which has since been revived in the names of William White Poe, and Ann Sharp, daughter of the said James Sharp, complaining of two interlocutors of the Lords of Session in Scot 1836. NARAIN RAE v. BIJAI GOVIND SING. where the appellant did not appear at the hearing. It is not, however, known whether, in these instances, RAJUNDERthere were or not cases laid before their Lordships, or such access to the proceedings below, and such recourse had to these proceedings as might enable their Lordships to supply the defect occasioned by the appellant's default, and in at least one instance the order was made, as it ought to have been made, here, simply dismissing the appeal, and not affirming the decree below. Their Lordships consider that a simple dismissal is to be regarded as the order which must have been in the Court's contemplation, and that no more could have been intended in substance, although the objectionable form, importing affirmance, was followed. We therefore think that, in the particular circumstances of this case, His Majesty should be advised to amend the order of the 16th April 1834, by making it conformable to what it must be taken to have intended, and to let in the appellant to be heard notwithstanding the dismissal, that is to say, to restore the appeal; and in case His Majesty shall be pleased so to order that these conditions shall be imposed upon land of 20th November 1799, and 18th November 1800, and of an interlocutor of the Lord Ordinary there, on the rolls of 29th January 1801, and praying that the same might be reversed, varied or altered, or that the appellant might have such other relief in the premises as to the House, in their Lordships' great wisdom, should seem meet, to which appeal James Stewart is respondent: "Counsel appeared for the said respondent, but none appearing for the appellant, and the respondent's counsel having prayed an affirmance of the said interlocutors complained of: "Ordered and adjudged by the Lords, &c., that the said petition and appeal be, and is hereby dismissed this House, and that the said interlocutors therein complained of be, and the same are hereby affirmed." |