PRACTICE ON ENGLISH AND IRISH APPEALS. CHAPTER THE FOURTEENTH. Of the Printed Cases. Time limited for lodging, 182.-Consequences of default by Appellant, ib., by Respondent, 183,-Cases must be signed by Counsel, ib.-Affixing Counsel's names without authority, 184.-Circulating observations not signed by Counsel, ib.-Inserting matter expunged by Counsel, 188.Where Party acts as his own Counsel, ib.-Preparation and Form of the Cases, 189.-Should show the points of Appeal, ib.—As much a representation in judicio as speeches of Counsel, 191.-What evidence should be printed, ib.-Applications for enlargements of time to lodge Cases, ib.-Exchange of Cases, 192.-Time for complaining of inaccuracies or irregularities in the Cases, 193.-Appendix need not be lodged with Cases, 194, but must be on the table at the hearing, 195. WITH respect to the depositation of the printed cases on both sides, the Standing Order No. 177 (3) requires, That when any appeal shall be presented to the House, the appellant and respondent shall severally lay the prints of their respective cases upon the table of the House, or deliver the same to the clerk of the Parliaments for that purpose, within four weeks after the time appointed for the respondent to put in his answer to such appeal; and in default of doing so by the appellant, the appeal shall stand dismissed, but without prejudice to the appellant presenting a new appeal within fourteen days of the next session of Parliament, or within the then remainder of the time (") See Appendix, No. 1. limited by the Standing Order, No. 118, for presenting appeals to this House; and in case of default on the part of the respondent, the appellant shall be at liberty forthwith to set down his cause ex parte. The most material point in this order is the distinction which it suggests between the contingency of default made by the appellant, and of default made by the respondent, in lodging their cases respectively. When the appellant makes default, the appeal stands absolutely dismissed the House. But when default is made by the respondent, the consequence is, merely, that the cause may thereupon be set down for hearing ex parte; a consequence attended with no other practical inconvenience, than the expense of a petition, to be afterwards presented by the respondent, for leave to lodge his case, although out of time; an application which, upon a reference to the appeal committee, is granted as of course. It is, therefore, not usual for respondents to apply for enlargements of the time appointed for lodging their prints; because, in general, the prints on the respondent's side (as well as his answer) will be received at any time sufficiently early to admit of compliance with the Standing Order, No. 117(), which requires that the prints be delivered to the clerk of the Parliaments, or clerk-assistant, in due time to be distributed to the Lords, at least four days before the hearing of the cause (c). By the Standing Order, No. 59 ("), it is required that the printed cases upon appeals and writs of error, shall be signed by counsel. The terms of the order are as follow: "The House taking notice that upon appeals and writs of error, there have been of late several scandalous and frivolous printed cases delivered () Originally the printed cases were not lodged in the Parliament-office, but were delivered to the Peers by the parties. The system of depositation was adopted in 1724: probably at the suggestion of Lord Chancellor Mac- (‹) See Appendix, No. 1. to the Lords of this House. For preventing whereof for the future, it is this day ordered that no person whatsoever do presume to deliver any printed case or cases to any Lord of this House, unless such case or cases shall be signed by one or more of the counsel who attended at the hearing of the cause in the courts below, or shall be of counsel at the hearing in this House." This order appears to have been framed in consequence of certain calumnious reflections upon Lord Chancellor Somers (printed in 1697, and circulated among the Peers) with reference to an appeal (e) from the Court of Chancery, then depending before the House. The order was intended to correct irregularities not very likely to recur in the present day; and this object was supposed to have been secured, by requiring that the cases should be signed by one or more of the counsel who had acted for the parties in the court below; or who should be of counsel at the hearing of the appeal. The necessity which the House felt at this period, for enforcing, strictly, the regulations of the Standing Order, appears by the following example Thorogood v. Cordell, 19 March, 1699.-After affirming the decree of the court of Chancery, notice was taken that the printed case for the appellant was signed by one Charles Wood, who was not counsel in the cause below, nor at the hearing in the House: whereupon Charles Wood being called in, and kneeling at the bar, asked pardon for his offence, and was reprimanded by the Lord Chancellor (Somers) by order of the House. The offence of affixing counsel's names, without authority, to printed cases, has been more than once visited with great severity by the House. Thus Colquhoun v. Corbett, 1 June 1786.-Notice being taken that the appellant's case was signed by R. Mackintosh, Wm. Adam, and John Anstruther, who did not either of them attend at the bar to plead for the appellant, nor was it supposed that they were of counsel in the case in (*) Bertie v. Lord Falkland, 7 February, 1697, Collis Par. Ca. 10. Scotland; and the Standing Order of the 19th of April 1698 ('), being read, the solicitor for the said appellant was called in and examined touching the said matter, and was directed to withdraw. The counsel were directed to withdraw. Ordered that the further hearing be adjourned till to-morrow; and that James Brewster, the solicitor for the appellant, do then attend. June 2.-Counsel were called in, and the House being informed that James Brewster attended pursuant to the order of yesterday, he was called in and a petition from him was presented and read; setting forth that the petitioner from motives of charity had been induced to undertake the management of the appeal. That the proceedings in the court of Session did not come into his hands till late in the month of March; and the petitioner being willing to relieve Messrs. Anstruther and Adam as much as he could from trouble, did himself draw up a state of the case, which he laid before Mr. Adam, who signed the same, and the petitioner called several times at Mr. Anstruther's house in order to lay the case before him, but had not the happiness to meet with him. That at this time the cases on their Lordships' lists were going off very fast, and the petitioner (apprehensive that if any further delay should be occasioned, it might not be in his power to lodge cases within the time limited by the standing order) signed the cases to be printed, intending to lay a proof thereof before him (Mr. Anstruther). That in the meantime Robert Mackintosh, Esq. who had been of counsel for the appellant in the court of Session, arrived in London; and the indisposition of the Lord Chancellor, and the intervention of the Easter Holidays, having prevented the case from being heard on the day expected, the petitioner laid the case before Mr. Mackintosh, who made considerable amendments thereon, which made it necessary to reprint the case. The petitioner received it from Mr. Mackintosh, April the 21st, and the cause stood for hearing April 28th. He found himself therefore under the necessity of immediately sending it to be printed, and on the 25th of April, he sent copies of the case to each of the counsel, and at the same time apologised for not laying it before them sooner on account of the want of time. That Messrs. Anstruther and Adam, afterwards so far from disapproving of the petitioner's conduct, still continued to give their advice and assistance in the management of the case till within these few days that he received letters from each of them, wherein the reason they assigned for declining to appear was, that Mr. Mackintosh could not also appear at the bar and support the appeal. The petitioner was extremely sorry that their Lordships should have the trouble of making inquiry into any point of his conduct, and he humbly begged leave to assure the House that he had no intention to offend the gentlemen whose names were annexed to the case, and hoped he might be pardoned an error which he said arose from inadvertency. () Viz. the Standing Order, No. 59, Appendix, No. 1. Mr. Anstruther and Mr. Adam, two of the counsel whose names appeared to be signed to the printed cases of the appellant, informed the House that their names were put thereto without their direction and privity, whereupon the said James Brewster was asked if he had any thing further to offer in his own behalf, who said that from letters he had received from Mr. Anstruther and Mr. Adam, he had been induced to believe that they had given up the idea of his having improperly set their names to the case, which he had done, not from any disrespect to the House, nor from any intention to offend them, but because the time appointed for hearing the cause was so near at hand that he could not consult them on the occasion, and he thought they would have no objection to sign a case which had been settled with much care by Mr. Mackintosh. Ordered that James Brewster for setting the names of J. Anstruther and Wm. Adam, Esqrs. to the case without their direction and authority, be committed to the custody of the Black Rod, and further ordered that the said appeal be dismissed the House, but without prejudice to any right the appellant might have in the matter in question, if he should be advised hereafter to appeal for the same. June 12.-A petition was presented on behalf of Mr. Brewster, then in the custody of the Gentleman Usher of the Black Rod, setting forth that it was with the deepest concern that he had incurred unintentionally the displeasure of the House; and that having been in custody since the 2nd of June, to the great injury of him and his business, the petitioner humbly prayed the House to take his case into consideration that he might be discharged. He was ordered to be brought to the bar of the House, where accordingly on his knees at the bar, he received a reprimand from the Speaker, and was ordered to be discharged out of custody-paying his fees. Another example of more recent date may be referred to; the case of Grahame v. Grahame, session 1831 (§). On the 15th Sept., when counsel were called in to argue the appeal, the following conversation ensued : Lord Chancellor Brougham. How does it happen, Dr. Lushington, that your signature is affixed to the case for the appellant, and that you now appear for the respondents? Dr. Lushington. I do not know, my Lord. I believe there must have been some mistake about the retainer. Lord Chancellor. I will read the Standing Orders of the 19th April, 1698. [Here his Lordship read the Standing Orders, Nos. 58 and 59 (1); (*) 5 Wils. and Sh., 760. (1) See Appendix, No. 1. |