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ing him at the same time the original. The person who so serves the order must then make affidavit of the fact before a justice of the peace, or other competent authority, and return the order along with such affidavit (which may be engrossed on the back of the order) to the agent in London. The form of affidavit is as follows:

J. S., of the city of Edinburgh, Writer to the Signet, maketh oath, and saith that he did duly serve the within order of the House of Lords, upon M. M., of the said city, Writer to the Signet, the known agent of the respondent in the Court of Session, by delivering to the said M. M. a true copy of the said order, and at the same time showing him the original. And this the deponent did at Edinburgh aforesaid the

day of

in the year one thousand eight hundred and forty-two.
Sworn at Edinburgh, this--day

of 1842, before me one of Her
Majesty's Justices of Peace for the
County of Edinburgh.

N. S. J. P.

The answer to a Scotch appeal is, in all respects, (except the title of the court,) the same as the answer to an appeal from the decree of an English or Irish Court of Equity ($).

The rules respecting due prosecution are the same as in English and Irish causes (").

So with respect to evidence, I am not aware of any peculiarity in Scotch causes (i).

As to the printed cases the rules also are the same(); except in so far as those rules have been superseded or affected by the following regulations, which are applicable solely to appeals from Scotland:-Thus, by the 6 Geo. IV. c. 126, s. 26, it is enacted

That when any cause shall be carried by appeal to the House of Lords, the appellant shall lay before the House a copy certified as authentic by the

(8) See ante, p. 159. () Ibid. ante, p. 166.

(1) Ibid. ante, p. 171.
() Ibid. ante, p. 182.

signature of one of the principal clerks of Session, or of one of the assistants of the said clerks, for whom the principal clerks shall be responsible, of the whole record of the averments and pleas authenticated by the Lord Ordinary; and instead of such cases as are delivered at present to the House of Lords, each party shall present to the House of Lords a case containing a printed copy of the record as authenticated, and of the case presented to the Court of Session, if such there be, and they shall also be at liberty to annex a supplementary statement containing an account of the further steps which have been taken in the cause since the record was completed, or the former cases prepared, and copies of the interlocutors, or parts of interlocutors complained against, with a summary of such additional reasons as may be thought fit set down in the form now used in the House of Lords.

These regulations were, however, soon afterwards (namely, on the 22nd June, 1829) improved upon by the following clause in the Standing Order, No. 177 :—

That in all cases of appeals from Scotland, the appellant alone in his printed case, shall lay before the House a printed copy of the record as authenticated by the Lord Ordinary; together with a supplement containing an account without argument or statement of other facts of the further steps which have been taken in the cause since the record was completed, and containing also copies of the interlocutors, or parts of interlocutors complained of, and each party shall in their cases lay before the House a copy of the case, presented by them respectively to the Court of Session, if any such case was presented there with a short summary of any additional reasons upon which he means to insist, and if there shall have been no case presented to the Court of Session, then each party shall set forth in his case the reasons upon which he founds his argument as shortly and succinctly as possible.

It is, therefore, neither necessary nor usual for the Respondent to incorporate in his printed case, the record as presented to the court below; the duty of bringing up a copy of the record being, by the Standing Order, devolved exclusively on the Appellant. And although the House will insist on having the entire record printed and lodged upon the table, it may not always be necessary to print the whole case as presented to the court below. On petition to the House, an order may be obtained, dispensing with

such parts of the printed case presented to the court below, as have no reference to or bearing upon the points decided by the sentence submitted to review. Thus, in the case of Rose v. Drummond, (Session 1841,) there was a very long closed record; and elaborate printed cases were presented to the court below; in which last were argued about a dozen distinct questions, each involving separate and independent points of law, of great nicety and difficulty. The court below selected one point which was held sufficient for the determination of the whole cause; and upon that one point they exclusively rested their judgment, finding at the same time that it was unnecessary to decide any of the other points raised. On appeal, the question arose whether the appellants were bound to print for the House of Lords, the whole record, as well as their entire printed case, great part of both relating to points not decided by the Court of Session, and which therefore could not be the subject of review in the House of Lords. Upon petitions by both parties, the Appeal Committee decided that the appellants must print the record entire, but as regarded the printed cases presented to the court below, leave was given to both parties to omit such parts of them respectively as they might be advised were unnecessary to be laid before the House of Lords.

By the 50th Geo. III. c. 112, s. 11, it is enacted,

That when an appeal shall be taken to the House of Lords, a full copy of the printed papers given in to the Court of Session, certified by one of the principal clerks of Session, together with copies so certified of such interlocutors and minutes of the court, as shall have been pronounced or framed subsequent to the date of the last of these printed papers shall and may be received in evidence, in such and the like manner as extracts of the whole proceedings are at present.

The copy thus certified, must be transmitted by the

appellant, so as to be made use of at the hearing. It ought to be in readiness four days, at least, before the day appointed for that purpose, when the appellant's agent will cause it to be delivered to the secretary of the Lord on the Woolsack.

Cross appeals in Scotch causes are not distinguished by any peculiarity (*).

Abatements of Scotch appeals are generally occasioned by the same causes, and rectified by the same remedies, as in English and Irish causes ('). It is to be observed, however, that the legal representative of a deceased party in a Scotch cause, either seeking revivor, or requiring to be served with notice of revivor, must be such representative as the law of Scotland points out. In Scotch causes, proof of the title to revive is required.

When either party proposes to plead in forma pauperis, the course is (after the order to answer has been made) to present a petition, praying to be admitted to plead in forma pauperis. The only difference between this form of proceeding and that adopted in English and Irish causes is, that the party's affidavit (which is usually made before a Justice of the Peace) is, in general, supported by a certificate of poverty, signed by the Minister, and by two Elders of the parish in which the party resides, stating the county in which such parish is situated ("). When it is intended to withdraw an appeal, the course of proceeding is precisely the same as in English and Irish causes (").

(*) See ante, p. 225.

(m) Ibid. ante, p. 259.

(1) Ibid. ante, p. 241.

(") Ibid. ante, p. 263.

PRACTICE

ON

SCOTCH APPEALS.

CHAPTER THE SIXTH.

Of the Hearing.

Of Counsel in Scotch causes, 336.—Precedence of the Lord Advocate, ib.— Of the Scotch Solicitor General, 337.-Question as to Dean of Faculty, ib.

THE general rules set forth respecting the hearing of causes, while treating of the practice on English and Irish appeals, are alike applicable to appeals from Scotland(").

Scotch causes are ordinarily argued by English counsel, or by one English and one Scotch counsel of a side. Questions of precedence occasionally arise. It may be well, therefore, to say a word of certain distinctions, recognised at the Scotch Bar; for they are peculiar.

The leaders of the Scotch Bar are: 1, the Lord Advocate (1); 2, the Dean of Faculty; and 3, the Solicitor-General.

Excepting the Lord Advocate and the Solicitor-General, there are no Queen's Counsel in Scotland; and patents of precedence are unknown.

(a) See ante, p. 203.

(b) Since writing the above, I am informed that the Lord Advocate is not necessarily (though usually) a member of the Faculty of Advocates. But when

he is a member of that body, he precedes all others at the Scotch Bar. With respect to the office of Lord Advocate, see Edinb. Rev. vol. 39, p. 363 (January 1824).

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