walter estate in the appeal mentioned might be declared to form part of the personal estate of her husband, and as such be divided between her and her children according to the custom of the city of London; or, at least wise, that the appellant might have one-third part of the rents and profits thereof for the time past and for the time to come during her life, as her dower and third part. Ordered, that Thomas Ambrose and Thomasin Ambrose, an infant (the daughter of the appellant), do put in their answers to the said appeal respectively, &c.

8 May, 1717.-Petition of said Thomasin Ambrose, one of the respondents, setting forth that the petitioner was an infant, and that the appellant, her mother, being by the Court of Chancery assigned her guardian, the petitioner put in her answer in the said court by her said guardian and mother; and therefore praying that the House would assign the petitioner another guardian, or give directions to the petitioner in what manner she might put in her answer to the said appeal. Ordered, that the clerk do search for precedents.

14 May, 1717.—The clerk reported that he had found no precedent for such an appointment; but the House being informed that the infant attended with her uncle, whom she desired might be assigned her guardian, they were both called in, and her uncle at the bar consenting to be her guardian for the putting in a proper answer to the said appeal, he was accordingly assigned her guardian for that purpose.

Before lodging the answer, it ought to be determined whether any of the decrees or orders made in the cause are such, either in whole or in part, as ought advisably to be made the subject of a cross appeal; because the Standing Order, No. 127, (a) requires that such cross appeal shall be presented within a fortnight after putting in the answer to the principal appeal. And here it is to be borne in mind, that although the answer is usually required in English causes within a fortnight, and in Irish causes within five weeks after the reception of the appeal, yet according to the practice of the House, the answer will, in general, be received, if delivered in, four days before the hearing of the cause (b) and it is not usual to lodge it until the respondent's printed case is prepared for depositation, by which time a deliberate

(^) See Appendix, No. 1. (b) Standing Order, No. 117, Appendix, No. 1.

opportunity will have been afforded for deciding whether to tender a cross appeal or not.

When the answer is delivered to the clerk, he is required by the Standing Order, No. 109 (c), immediately to indorse thereon the day on which such answer is brought in. And the names of the parties answering, and of those to whose appeal such answer is put in, are ordered to be the same day entered in the Journals.

If the respondent put in his answer within the time limited by the order of the House, he may move to have the cause set down for hearing. The motion paper delivered in for that purpose at the Parliament Office will be as follows:

A. B., appellant;

C. D., respondent.

The respondent having put in his answer to this appeal.

May it please your Lordship to move that the cause may be set down for hearing after those already appointed.

The order requiring the respondent to put in his answer, although formerly enforced by compulsory process, appears now to be regarded as in the nature merely of notice to the respondent that the cause is sub judice.

A party failing to answer is not considered guilty of a contempt in the House of Lords; his non-appearance being in fact held only to be a reason for the exercise of greater vigilance and circumspection in the final disposal of the case upon the merits. The respondent has the decision of the Court below in his favour. He considers that decision sound; and he may be unwilling or unable to sustain the expense of a new contest in a new court with reference to the same subject matter. Prima facie, therefore, the absence of the respondent is evidence of his confidence in the merits of his cause, rather than of any contumacy or disrespect to their Lordships' authority.

(*) See Appendix, No. 1.

Thus in the case of Hamilton v. Littlejohn ("), 17 March 1836, where the respondent did not appear, the House, although they reversed the judgment of the Court of Session, would not give the costs of the appeal; Lord Lyndhurst observing "that the respondent had relied on the judgment of a court of competent jurisdiction. Had she not (said his Lordship) a right to do so?"

But where a party respondent applies for and obtains indulgence from the House, and afterwards abandons the defence; the decision of the House may be different. Thus

Hamilton. Hamilton, 18 June, 1724.-On the day appointed for hearing the cause, counsel appearing for the appellant alone, the minute in the Journal states, that the cause having "formerly been set down to be heard ex parte, in default of an answer of the respondents or any of them, after a peremptory day appointed for that purpose; and the respondents having been, after that, so far indulged as to have the case put off to a further day, with liberty for them to be heard; and in order thereto, to put in their answer to the said appeal, and yet this day not appearing, but deserting their defence and opposition to the said appeal; it is ordered and adjudged that the said several interlocutors be reversed, and it is hereby declared that it is the opinion of the House that the said William Hamilton, elder brother of James Hamilton the respondent, was, by virtue of the disposition in the pleadings mentioned, fully vested in the fee and property of the estate of Arliston without the necessity of serving heir to Sir James Hamilton his father; and that the two dispositions made by the said James Hamilton the 26th December, 1711, in the pleadings mentioned, in favour of the appellant were good and effectual deeds, and the same are hereby established, subject to the true and lawful debts of the said William Hamilton."

It is to be kept in view that although their Lordships will not award costs against a respondent failing to appear; so neither on the other hand will they allow costs to a respondent who omits to put in his answer. In the case of Clyne v. Clyne (), the respondent at the hearing of the cause presented his printed cases, and the (*) McL. and Rob., 115.

(d) 4 Cl. and Fin. 20.

House affirmed the judgment of the Court of Session; and were disposed to award costs to the respondent. But inasmuch as it was found that he had not put in his answer to the appeal, it was determined that no costs could be allowed him.

In the following case, where by mistake, a party respondent had been heard without having put in his answer, it was afterwards allowed to be entered nunc pro tunc.

Wilson v. Alexander, 14 August, 1807.-" The House being informed that the answer of the respondent, John Alexander, had been by mistake omitted to be put in by the respondent till this day, though he had been heard by counsel who appeared in his behalf at the hearing of the cause; ordered, that the answer of the said respondent be entered nunc pro tunc upon the 23d day of November 1808, when the case was set down for hearing; and the judgment in the said case be amended, by inserting after the words, the answer of,' the following words, namely, 'John Alexander.'"

PRACTICE

ON

ENGLISH AND IRISH APPEALS.

CHAPTER THE TWELFTH.

Of due Prosecution.

In default of Answer, motion for Peremptory Order, 166.—Form thereof,

167. Motion to set down, ex parte, ib. Form thereof, ib.- Not usually made till after Appellant's Case lodged, 168.-Provisions of Standing Orders, Nos. 107, 108, and 123, respectively, ib.

THE Standing Order, No. 106, declares that

“When upon an appeal, an order is made for the respondent to answer thereunto by a time limited, and no answer is put in by that time; upon proof made of due service of such order, a peremptory day shall be appointed for putting in the answer without any further notice to be given to the respondent (*)."

When the period limited for putting in the answer has expired, the appellant's agent ought to make inquiry at the Parliament Office, to know whether such answer have been lodged. If it be not lodged, he may move for a peremptory order, requiring the respondent to answer within a week. This is done by motion made upon production of the affidavit, indorsed on the original order of service; which (with such affidavit) is thereupon deposited in the

(a) Sed quære-Whether this order is not to a certain extent superseded by the Standing Order, No. 177? See Appendix, No. 1, and Chapter upon Printed Cases, infra.