Scotland shall have liberty to proceed, except in so far as the subject matter of litigation is by the appeal brought under the review of the House of Lords.

I have gone somewhat fully into this matter, at the desire of a high judicial functionary, by whom my attention was originally directed to it, as a subject deserving of consideration in a treatise on the appellate jurisdiction. The views suggested in this chapter have been submitted to his Lordship; who has contributed the following important confirmatory observations:

"The grievance," he observes, "and the only serious one, is the stoppage of the cause; which gives undue encouragement to appeals. These, when brought against interlocutory judgments, upon difference of opinion, are a source of great embarrassment, oppression, and delay. On the other hand, where leave to appeal must be obtained, the Scotch court is not in a fair situation for exercising that discretion. The inclination is naturally to grant the leave. And there are many cases where the Judges of the court below might desire the point to be taken to the House of Lords, so as to ascertain whether the interlocutory order is to be adhered to or not, before finally disposing of the cause. But if they were to do so, all further proceedings in the cause would stop in the mean time. And if a jury-trial, or any ascertainment of facts, were necessary, the suspension of proceedings would prove a great hardship to the suitor. Again, when diligence has been used upon dependence, to secure what may be ultimately found due, the stoppage of proceedings locks up a man's funds for an indefinite period, perhaps for years, to abide the result of the litigation; and if at last the interlocutor be confirmed, the hardship of this is the greater, and makes it peculiarly proper to let the Scotch courts proceed as the

English and Irish courts do;-the practical grievances of the present system being, in some cases, really intolerable.

"Occasionally an appeal has been entered just before the actual liquidation of the sum contested, in order to protract ultimate decision, and to stave off payment, it might be, to infant children. And yet the court below, notwithstanding all that remained to be done in the cause was but to liquidate the sum so as to give decree and award interim execution, could not entertain a motion even to that effect.

"The Scotch courts would of course take care not to make matters inextricable, or to add to their own difficulties by going too far before the issue of an appeal. They would exercise the same discretion with which they are entrusted by the act, in the more arbitrary and indefinite matter of interim possession or execution.

"Interim execution under the statute is much more defective than may be generally supposed; for it is wholly inapplicable to a great mass of cases, and, in most cases, is a remedy only for one of the parties, viz. the pursuer. A defender can seldom proceed at all; though the decision might not only liberate his estate and funds from diligence, but be attended with pecuniary consequences most important to him."

The views taken of this matter in courts of equity are thus stated by Lord Chancellor Brougham (d) :—" Applications to suspend the execution of decrees are uniformly discouraged. In Huguenin v. Basely (e), Lord Eldon says, that encouraging them would palsy the arm of justice: and though in that case he made the order in the special circumstances, and because it could not pro

(d) Walbourne v. Ingilby, 1 Milne and Keen, 61.

(c) 15 Ves., 180

duce serious inconvenience, yet in another, Willan v. Willan (1), he refused it with costs, although it was clear that change of possession was the consequence; and if the motion had been granted, the party's enjoyment would only have been postponed. Stays of execution give encouragement to vexatious appeals upon a large class of the business which occupies these courts. The very cases in which it is of the most essential importance that a speedy execution should take place will be those in which the argument for suspending execution will be most powerful. It is needless to observe, that were the appellate jurisdiction so constructed as to give instantaneous despatch, then under proper regulations (for even then some restraint would be necessary) execution might generally be stayed, pending the appeal. But whether an appellate court is ever likely to be obtained so constructed as to insure such immediate despatch, and at the same time so composed as to obtain full confidence for its decisions, is another and a more serious question upon which this is no time or place to enter."

It

may become necessary to consider whether the Court of Session, in granting leave under the statute, to parties desirous of appealing, ought not to exercise that discretion with greater liberality than at present, in the event of the House ultimately determining that, for the future, an appeal shall not have the effect of suspending the proceedings of the court below.

On the whole, it seems not improbable that this subject will, ere long, be taken into consideration in the proper quarter, with a view to future regulation.

(') 16 Ves., 216.

PRACTICE

ON

SCOTCH APPEALS.

CHAPTER THE FIFTH.

Preparations for the Hearing.

Of the Recognisance, 330.-Of Amendments for want of Parties, &c. 331. Of objections by the Respondent, ib.-Of service of the Order to Answer, ib.-Of the Answer, 332.-Of due Prosecution, 333.-Of Evidence, ib.-Of the Printed Cases, ib.-Documents to be used at the Hearing, 334.-Cross Appeals, 335.-Abatements, ib.-Pleading in forma pauperis, ib.

THE rules before explained ("), with respect to recognisances on appeals from the English and Irish Courts of Equity, are alike applicable to appeals from the courts in Scotland (b).

The time limited for entering into recognisance on Scotch appeals is fourteen days after such appeals received (c).

When, in consequence of defects discovered in the ap

(a) See ante, p. 143.

(b) 28th Feb., 1842, The Lord Advocate v. Lord Dunglass.-On the petition of the Lord Advocate for leave to proIceed with the appeal without entering into the usual recognisance; and, on the counter petition of the respondent, ordered that the Lord Advocate is not

bound by the usage of this House to enter into recognisance when suing, as such, on behalf of the Crown, or in matters in which the Crown is interested.

(c) See Standing Order, No. 61, Appendix, No. 1.

peal after lodgment, an amendment becomes necessary, the appellant will lose no time in presenting a petition (duly served on two clear days' notice to the other side) praying leave to amend (d). The most usual defect is the want of proper parties.

The rules respecting necessary parties in Scotch appeals appear to be substantially the same as in English and Irish causes ().

If a party, in consequence of his residing in England, has been obliged to appear by mandatory in the Court of Session, the mandatory will have to accompany him to the House of Lords, on appeal. This point was decided in Stewart v. Gibson (Session 1827), where upon service of the order to answer upon the mandatory as well as on the principal party, the mandatory failed to make appearance. The principal party put in his answer, and then tendered a cross appeal. Upon a petition by the appellant, the House ordered that the cross appeal should stand dismissed, as irregularly brought, unless the cross appellant should, within a fortnight, apply to the House for leave to make the mandatory a party.

When the respondent has objections to the appeal on the ground of incompetency, or irregularity, he will not put in his answer, but will present a petition praying dismissal of the appeal, in the same manner as recommended, under similar circumstances, in English and Irish causes (1).

The order to answer on a Scotch appeal requires service thereof to be made on the respondent, or upon any of his known counsel or agents, in Scotland.

The mode of service is by delivering a copy of the order either to the respondent, or to his counsel or agent, show(†) See ante, p. 123. (') See ante, p. 156.

(4) See ante, p. 154.