appeals had no such effect; for, on the contrary, they left the Court below in the full enjoyment of its former jurisdiction. In fact, things were precisely the converse of what they are at present.

The attention of the House was first directed to the different effect of an English and a Scotch Appeal, by a case which occurred in 1709; and an order was pronounced, which established uniformity. The following is the entry in the Journals:

19 April, 1709.-The House having this day heard counsel upon the petition of Mr. George Mackenzie, son to Mr. George Mackenzie grantee from her Majesty in a decree of Exchequer of North Britain, pronounced against Sir Alexander Brand relating to his appeal in this House, as also counsel on the petition of Sir Alexander Brand. The following order was made:

That after an appeal shall be received by this House from any sentence or decree pronounced in any court in Scotland, and an order made by this House for the respondent to answer the said appeal, and notice of such order duly served on the respondent, the sentence or decree so appealed against from such time ought not to be carried into execution by any process whatsoever.

This regulation (directly in the face as it plainly is of the Scots claim of rights) has been the fruitful parent of many mischiefs and inconveniences; which have been but inadequately corrected by the interposition, somewhat tardy and reluctant, of the Legislature(TM).

In the mean time, enough has been said to show the origin of the jurisdiction exercised by the House of Lords upon appeals from the Court of Session.

The competency of appealing to the House of Lords from the decisions of the Commission of Teinds was

(m) It has undoubtedly increased the number of appeals from Scotland, as there are many stages of a cause to which the remedies devised by the

legislature are quite inapplicable.Note by the Lord Justice Clerk of Scotland.

questioned at an early period; but affirmatively decided by the House itself, in the following case:

Scott v. Magistrates of Montrose, 15 March, 1714.-Appeal presented, complaining of a sentence of the Lords Commissioners for the Plantation of Kirks and Valuation of Tithes, of 2 July last, and praying that the same might be reversed; and a debate arising in relation thereunto— Ordered that the said debate be adjourned to Thursday next at twelve o'clock.

19 March. The House being this day moved that the said appeal be proceeded on, it was ordered accordingly.

5 June.—After hearing counsel, interlocutors affirmed with 407. costs. By the 6 Anne, c. 26, s. 9, the Barons of the Court of Exchequer in Scotland are authorized to hold plea in equity by English bill; to issue process of subpœna thereon; and generally to proceed "according to such manner and form as the Court of Exchequer in England is used to proceed by."

The twelfth section of the same statute, after giving the party aggrieved by any judgment on the commonlaw side of the Scots Exchequer, the remedy of a writ of error in Parliament, provides also for redress against any decree or order that may be made on the equity side of that tribunal. The terms of the clause are indeed somewhat obscure, but the intention is plain; the words being as follow: "and every person or persons against whom any orders or decrees in English causes (") shall be made in the said Court of Exchequer in Scotland, shall and may have and pursue such and the like relief and redress thereon, as any person or persons against whom any orders or decrees in the Court of Exchequer in England have been or shall be made, may have and pursue in like cases."

The only "relief and redress" against an order or

(") That is to say, in any causes by way of English bill, in contradistinction to the Latin jurisdiction of the court.

Such, at all events, is my understanding of the clause. But see next note (°) by the Lord Justice Clerk.

decree made on the equity side of the Court of Exchequer in England, was by appeal to the House of Lords. And, therefore, under this clause, an appeal to the House of Lords must have been intended to be the only competent remedy against orders or decrees made on the equity side of the Court of Exchequer in Scotland.

It is to be observed, however, that in order to secure an appeal to the House of Lords, the proceedings are required by the statute to be according to the forms and modes of equitable jurisdiction, as exercised upon bill and answer, and as enforced by subpoena in English Courts of Equity. Such a course of practice is, I am informed, unknown and unprecedented in the Scots Court of Exchequer (°). Accordingly I have not observed any trace or indication in the Journals of an appeal from that tribunal to the House of Lords; with the exception of one case that of Haldane v. Keith, 26th March 1778; where the order complained of, appearing on the face of the appeal to have been made by the Barons in a ministerial capacity as a Board of Treasury under a special act of Parliament, the appeal was at once, and without any examination of the merits, dismissed as irregular (P).

It is also remarkable that the several statutes and standing orders passed from time to time in the present century, making sundry alterations in the practice of Scots appeals, do not appear to contemplate the remedy of an appeal to the House of Lords from any courts in Scotland, other than the Courts of Session and of Teinds.

(") The Court of Exchequer in Scotland has no equity jurisdiction, or any other than revenue jurisdiction, and a certain jurisdiction in questions between the Crown, as superior, and proprietors holding in fee under the Crown, where no question of title is

involved.-Note by the Lord Justice Clerk of Scotland.

(P) Although there have been no appeals from the Scotch Exchequer, yet there have been many writs of error, and they constantly occur. See infra, Writs of error from Court of Exchequer in Scotland.

The general benefits which have enured to Scotland from the exercise of appellate jurisdiction, by the House of Lords, are thus gracefully acknowledged by Sir Islay Campbell ("). "It cannot be denied," he says, "that the experiment, though apparently a bold one, and much objected to by some of the old lawyers at the time, on account of the trouble and expense attending it, has completely succeeded: and after the trial of a full century, it is believed there is not now any reasonable man in Scotland who would wish to see an alteration. The great lawyers who have successively presided on the woolsack, or taken any charge of Scots business in the House of Lords, from the Union downward, are well known to have been men of the highest talents, and fully adequate to so important a duty. This continues to be the case at present; and Scotland is, undoubtedly, very much beholden to them for the lights which have been thrown upon its law by judgments of the House of Lords in many instances."

(1) Preface to the Acts of Sederunt, p. 36.

PRACTICE

ON

SCOTCH APPEALS.

CHAPTER THE FIRST.

Limitation of Time for Presenting.

Appeals from Commission of Teinds and Equity Side of the Exchequer, 297. From the Court of Session, 298.

THE practice upon Scots appeals differing in some material respects from the practice in English and Irish causes, my endeavour now will be to point out the leading particulars by which they are distinguished. And first, with regard to the time limited for bringing Scots appeals, the Standing Orders Nos. 55 and 118 (") lay down certain rules which, though professedly applying to all appeals from Scotland, in point of fact do only apply to appeals from the Commission of Teinds, and from the Equity side of the Scots Exchequer ("); the time limited for appealing from the Court of Session, as will presently appear, having been regulated by Act of Parliament, overruling, to a certain extent, the Standing Orders of

the House of Lords.

() Appendix, No. 1.

(b) As before observed, there is no example of an appeal received from the Scots Exchequer. But the act establishing the Court gives power to hold plea in equity, and to issue process of sub

pœna; and its decrees are made appealable in like manner as decrees on the equity side of the English Exchequer. So that the jurisdiction is indisputable, and cannot, in a book of practice, be treated as a nonentity.