PRACTICE

ON

ENGLISH AND IRISH APPEALS.

CHAPTER THE SECOND.

Time for Presentation.

Limitation by the Standing Order (No. 55), 107.—By the Standing Order (No. 118), 108.—Where Party is subject to Disabilities, 109.—Case of mere Absence, 111.-Where time, limited by the Standing Order (No. 55), expires, Petition necessary, ib.-Respondents consent thereto, ib.Cases of Appeals received without consent, though beyond time limited by the Standing Order (No. 55), ib.-Expiration of time limited by Standing Order (No. 118), excludes Appeal irrevocably, 113.—Construction of Standing Order (No. 118), 114.

THE provisions of the Standing Order No. 55 (a), respecting the limitation of time for presenting appeals to the House of Lords are as follow:

That all persons who shall be desirous to exhibit to this House any Petitions of Appeal from any Court of Equity, do present their Petitions within fourteen days, to be accounted from and after the first day of every session or meeting of Parliament after a recess; after which time the Lords do declare they will during every such sitting receive no Petition of Appeal, unless upon a Decree made whilst the Parliament is actually sitting; in which case, the party who shall find himself aggrieved may present his Petition of Appeal, provided he present it within fourteen days after such Decree is made and entered in any Court of Equity in England or Wales; and forty days in any of the Courts of Equity in Ireland.

(*) See Appendix, No. 1.

A party, therefore, aggrieved by a decree or order of any court of equity in England or Ireland, made during a recess of Parliament, may present his appeal to the House of Lords, on any of the first fifteen days of any subsequent session of Parliament; or if the decree or order be made whilst the Parliament is actually sitting, he may present his appeal during such session of Parliament, provided he present it to the House within fourteen days after such decree or order is made and entered in any Court of Equity in England or Wales; or within forty days after such decree or order is made and entered in any Court of Equity in Ireland. The fourteen and the forty days are exclusive of the day on which such decree or order is made. If the fourteen or forty days should expire on a Sunday, or during an adjournment, the House upon petition would receive the appeal on the next ensuing day of business.

There is in this standing order nothing to prevent an appeal from being brought at any period, however distant after the date of the decree or order complained of -so it be presented to the House on any one of the first fifteen days of any given subsequent session of Parliament.

To prevent the reception of stale appeals however, a

Sunnystanding order (No. 118) ("), was passed on the 24th

March, 1725, an order since that period repeatedly amended, and by which, as now framed, it is required

That no Petition of Appeal from any Decree of any Court of Equity in England or Ireland, to be hereafter signed and enrolled, be received by the House after two years from the signing and enrolling of such Decree; and the end of fourteen days to be accounted from and after the first day of the session of Parliament next ensuing the said two years.

The effect of both the standing orders is, that if upon

(b) See Appendix, No. 1.

a decree or order made during the Parliamentary session, the appellant fail to present his appeal within the prescribed periods of fourteen days in English causes, and forty days in Irish causes, the remedy of appeal is lost for the Parliamentary session, during which such decree or order has been made; but the appeal may nevertheless be presented on any of the first fifteen days of any subsequent Parliamentary session falling within two years from the signing and enrolling of such decree or order; or it may be presented on any of the first fifteen days of that session of Parliament which shall immediately succeed the expiration of such two years; at the close of which last mentioned period of fifteen days, the appeal is excluded.

Upon a decree or order made during a recess of Parliament, the appeal, both in English and in Irish causes, may be presented on any of the first fifteen days of any subsequent Parliamentary session falling within two years from the signing and enrolling of such decree or order or it may be presented on any of the first fifteen days of that session of Parliament which shall immediately succeed the expiration of such two years; at the close of which last mentioned period of fifteen days the appeal is excluded.

The Standing Order No. 118 (), however, provides

"That, if the person entitled to appeal be within the age of one-andtwenty years, or covert, non compos mentis, imprisoned, or out of Great Britain and Ireland, he shall be at liberty to bring his appeal at any time within two years next after his full age, discoverture, attaining sound mind, enlargement from prison, or coming into Great Britain or Ireland; and fourteen days to be accounted from and after the first day of the session of Parliament next ensuing the said two years; but not afterwards or otherwise."

A party, therefore, subject to any of the disabilities

(c) See Appendix, No. 1.

specified in this Standing Order, may present his Appeal on any of the first fifteen days of any session of Parliament, falling within two years from the removal of such disabilities; or on any of the first fifteen days of that session of Parliament, which shall immediately succeed the expiration of such two years, at the close of which last-mentioned period of fifteen days the Appeal is excluded.

The last clause of the Standing Order, No. 118 (4), is in these words:

That in no case shall any Person or Persons be allowed a longer time, on account of mere absence, to lodge an Appeal, than five years from the date of the last Decree appealed against.

This clause, in a conceivable case, might be productive of injustice; for if during the five years allowed, no Parliament were summoned, the consequence would be that a party, however anxious to bring his Appeal, might be foreclosed by mere lapse of time, without any lack of diligence on his part. This clause appears to have been inaccurately borrowed from the 25th section of the 6th Geo. 4, c. 120 (Applicable to Scotch Appeals) (°); by which statute the remedy of Appeal to the House of Lords is kept open to Scottish absentees, not only for five years from the date of the decree complained of, but also for the first fifteen days of that session of Parliament which shall immediately succeed the expiration of such five years.

When the sessional period limited by the Standing Order, No. 55, has been allowed to expire, a petition to the House will be necessary, praying for leave to present the Appeal, though out of time. Such petition may be in the name of the Appellant, and signed by himself; or it may be in the name of his solicitor or agent, and signed by such

(d) See Appendix, No. 1.

(*) See limitation of time for bringing Scotch Appeals, infra.

solicitor or agent. When the Appellant is on the spot, or at a convenient distance, it appears more prudent to present a petition in his own name, and signed by himself. But if he be at a distance, and if the Appeal be actually prepared for presentation, and in the hands of his solicitor or agent, for that purpose, the House will receive a petition from such solicitor or agent, setting forth circumstances explanatory of the delay in presenting the Appeal, and praying that it may be received, notwithstanding such delay.

It may not be the Respondent's interest to oppose the reception of the Appeal, or he may not think it worth while to do so. Thus where the sessional limitation under the Standing Order, No. 55, has expired, the Appeal may, nevertheless, be receivable in the ensuing session; and, in many cases, the only effect of opposing its reception in the mean time would be to protract the litigation; which it can never be the wish or interest of a Respondent to do. In such circumstances, the Respondent, or his agent, may acquiesce or concur in the Appellant's application for leave to present the Appeal; and in evidence of his assent, the Appellant's agent ought to procure the Respondent's signature, or that of his agent, to the petition, as a consenting party; on production of which signature, the House, in most cases, will receive the Appeal.

Where, however, no consent can be procured from the Respondent, the petition of the Appellant will require to state sufficient grounds in support of the application. Those grounds must, of course, vary according to circum

stances.

In the case of Burke v. Paxley, 19th Dec., 1774, an Irish Appeal was received on petition, stating that by contrary winds it had been detained, until it had become