The form of a petition to revive may be as follows:

A. B., Appellant.

C. D., Respondent.

To the Right Honourable, &c.

The humble petition of E. F., &c.

Sheweth, That on the

day of

the above-named A. B.

presented his appeal to your Lordships, complaining of a decree, and of certain orders of the High Court of Chancery: and the above-named C. D. was required to put in his answer, and has accordingly so put in such answer, within the usual time limited for that purpose by order of the House.

That the said A. B. shortly thereafter, namely, on or about the

day of last, departed this life, having previously duly made and published his last will and testament in writing, whereof he appointed your petitioner, his only son, sole executor. That your petitioner has duly proved the said will in the proper Ecclesiastical Court, and has thereby become the sole legal personal representative of the said A. B., and he submits, that, as such, he is entitled to have the said appeal revived. Your petitioner therefore humbly prays that your Lordships will be pleased to order that the said appeal may stand revived in your petitioner's name, as in the place and stead of the said A. B., the original appellant; and that your petitioner may have the same benefit thereof, as the said A. B. might have had, if still living.

And your petitioner will ever pray, &c.

The order of revivor expresses that the cause shall stand revived, and be in the same plight and condition as at the time of the abatement; and, therefore, if at that time an answer had been put in by the original respondent, an answer by the representative brought in by revivor, seems, in general, unnecessary; and it is not the practice to require it.

Accordingly, it is laid down by Lord Chancellor Loughborough (*), that when an appeal in the House of Lords becomes abated, the order to revive is obtained, of course, and there is no fresh summons.

(5) Byne v. Potter, 5 Ves. 304.

PRACTICE

ON

ENGLISH AND IRISH APPEALS.

CHAPTER THE TWENTY-FIRST.

Of Hearings out of Course.

Advancement of Causes, 253.-Upon what grounds granted, ib.-Postponements, 254.—Upon what grounds granted, ib.-Standing Order, (No. 60), ib.

WHEN a strong case can be made out in support of such an application, the House will order an appeal, or a Writ of Error, to be heard on an early day; without regard to its place on the cause list.

A petition, on two clear days' notice, for this purpose, may be preferred by either party; or both may join in the application. It will be referred to the consideration of the Appeal Committee, upon whose report an order will be made granting or rejecting it.

Various grounds may exist for such an application. The parties may be very old and infirm, and a decision of the cause may be necessary to a settlement of their affairs; the guardians of a young person may be at a loss how to regulate his career till judgment be obtained; a claimant may be in great pecuniary distress; the appeal may be one of extraordinary and public im

portance (a); the personal status of an individual may be concerned, as in questions of legitimacy; or it may be a case on bill of exception from Scotland, which is entitled to preference by statute. In all these and the like cases, the House will order the cause to be advanced.

But, in general, applications of this sort are reluctantly assented to; because compliance with them is necessarily productive of injury, or inconvenience, to other litigants.

In the same way, on sufficient grounds, postponements of the hearing will be granted.

Of the grounds which will support an application for postponement, the following may be mentioned. As, for example, that papers are retained by a former agent, who holds them for his bill of costs; that some material document, exhibited in the court below, has not been furnished, or is withheld by a person interested; or, in Irish cases, that the proceedings have not arrived. Where, in any of these, or the like cases, it appears that the grounds of application have not been created by the laches, or fault, of the petitioner, the order for postponement for a reasonable time will be granted.

Indulgence of this sort is sometimes obtained on slighter grounds; as, in English and Irish cases, that the counsel are on the circuit; or in Scotch cases, that Scotch advocates are unable to attend. But on such grounds it is unsafe to rely; for the House may hold, and, indeed, has often decided, that the inability of particular counsel to attend, is only a reason for employing other counsel who can attend.

On the subject of advancements and postponements,

() As the famous Auchterarder case, relating to the Non-intrusion

question, which was taken out of its course in the session of 1839.

there is a Standing Order, No. 60 ('), which provides as follows:

That when a day shall be appointed for the hearing of any cause, appeal, or writ of error, the same shall not be altered but upon petition; and that no petition in such case shall be received, unless two days' notice thereof be given to the adverse party; of which notice oath shall be made at the bar of the House.

This order applies to the case where a special day has actually been fixed for the hearing; but not to the ordinary case where the appeal merely stands, with others, in the general cause list of the House. In this latter case there is no occasion for proof of notice upon oath, unless the House think proper to require it by special order.

(") See Appendix, No. 1.

PRACTICE

ON

ENGLISH AND IRISH APPEALS.

CHAPTER THE TWENTY-SECOND.

Attendance of the Judges.

Bound to advise on Appeals as well as upon Writs of Error, 256.—Joint Petition, 257;—or of either Party, ib.—Attendance to report Trials at Law, 258.

Ir has been already observed, that the Judges, or a selection of them, were in former times accustomed to assist at the hearing of all causes in the House of Lords («). They do not now attend unless specially required so to do, by order of the House. Such order being issued ex proprio motu, or at the suit of parties, when questions more than ordinarily important are expected to arise. The Judges are to advise not only on points of law, but on points of Equity ("). And it is a mistake to sup

(a) See Chapter on " The Assistants,"

ante.

() The writ addressed to the assistants requires them, in general terms, to advise in Parliament. The Chancellors of former ages called in the aid of the Judges, not only on points of law, but on points of equity. See 2 Rolle, 433, where two of the Judges (Doddridge and Chamberlain)

are reported to have stated-"That in former times the Chancellor used to send for the Judges, to know when equity should be admitted against the common law, and when not; because it was not to be allowed for every fancy, and it was a great doubt in what points equity should be allowed place."