REHEARINGS

OF

APPEALS AND WRITS OF ERROR.

Power of the House to reverse its own Judgments, 434.-Standing Order as to Rehearings, 435.—Stewart v. Agnew, 436.—Observations of Lord Eldon, 437 ;-of Lord Redesdale, 438;—of Lord Brougham, 445.— Judgment on merits conclusive, 447.-Application for Rehearing after Judgment irregular, ib.-Secus before Judgment, 448.-Bill in the nature of a Bill of Review sustainable, ib.-Precedents for applications to amend Judgments of the House, 450 et seq.-Case of refusal to amend, ib.-Additional words inserted, ib.-Explanation refused, ib.-Trial at law allowed after Judgment, ib.-Enlargement of time for Trial at law, ib.-Direction given to Court below to restore possession, ib.-Ditto, to charge lands with a Charity, 451.-Judgment explained as to an Equity of Redemption, ib.-Petitioner referred to the Court below, ib.-Judgment upon a Writ of Error made as it ought to be, if given by the Court below, ib.-Direction given for possession to be restored upon certain terms, 452.-Stay of proceedings in Ireland added, ib.-Refusal to hear an application to amend, ib.- Words added, giving Court below permission to proceed, ib.-Words added to warrant Execution by Court below, 453.-Ditto, to allow of an Appeal from the Court of Admiralty to the Court of Delegates, ib.-Ditto, for an account to be taken, ib. Petition to amend rejected, ib.—Words added to admit a Presentee, ib.—Judgment upon a Writ of Error, made as it ought to be, if given by the Court below, 454.-Judgment explained, 455. -Direction given for Possession to be restored, ib.-Explanation refused, ib.-Order as to Costs, 456.-Explanation refused, ib.-Order dismissing an Appeal discharged, and Cause appointed to be heard, ib.Order discharged, and an Order by consent substituted in lieu thereof,

F F

457.- Words struck out of Judgment, and other Words substituted, ib. -Motion to add Costs negatived, 458.-Judgment amended by giving a fixed sum of Costs, 459.-Inserting " Chief Remembrancer," instead of "Master," ib.- Variations struck out, and other Variations substituted, ib.-Amendment as to a Point omitted through misapprehension Thalles Rendlesher in argument, 460.-Amendment giving interest on Judgment, ib.7 LPqAmendment giving Costs three years after date of Judgment, 461.

ACCORDING to Sir Matthew Hale, the House of Lords has power to reverse its own judgments. And this, he says, may be done either in a session subsequent to that in which such judgments have been pronounced; "or, possibly," adds his Lordship, "it may be done even in the same session (a.)"

Of the exercise, however, of this prætorian faculty, we have had no example for centuries. And in the comparatively modern case of Titus Oates, an Act of Parliament was considered necessary to reverse a judgment pronounced by the Lords upon error from the Court of King's Bench.

In that case, Titus Oates having, on the 4th of April, 1689, brought writs of error before the House, to reverse certain judgments given against him in the Court of King's Bench upon two indictments for perjury; by which judgments he was to be divested of his canonical habits, and to continue so divested during his life; he was yearly, during his life, to be set in the pillory several times at divers public places; he was to be imprisoned during life; was to be whipped from Aldgate to Newgate one day, and from thence to Tyburn another day; and

(*) If a judgment of attainder or reversal be given in the Lords' House in Parliament, a writ or petition of error lies, at another Session, in the same Lords' House, to reverse their own judgment; and possibly it may be done even the same Session. Many instances of this nature are; as in the case of

Alice Peres, of Holt and Burgh, of the Earl of Salisbury and others; for which see Rot. Parl. 2 R. 2. n. 36, 37; 7 R. 2. p. 2. n. 20; 8 R. 2. n. 11; 2 H. 5. p. 1. n. 13. p. 2. n. 11; 3 H. 5. p. 1. n. 18; 9 H. 5. n. 19. Hale's Lords' Jurisdiction, 123. See the case of the Prior of Newport Pagnell, supra, p. 355.

was fined one thousand marks. These judgments the Lords, on the 31st May, 1689, were pleased to affirm; notwithstanding the unanimous opinion of the Judges, that the said judgments were contrary to law and ancient practice, and ought to be reversed.

The extreme severity and the unusual character of the punishment inflicted upon Oates, gave rise to a discussion () in the other House of Parliament; in course of which the principal speakers agreed that the sentence of the King's Bench being affirmed by the Lords, could only be reversed by Act of Parliament.

Accordingly it was resolved, "that bills be brought in to reverse the judgments against Mr. Oates, as cruel and illegal." Those bills speedily passed the Commons, and were on the 6th July, 1689, carried up and read a first time in the Lords; where a few days thereafter (12 July) they were read a third time, and passed; but sent back, nevertheless, with some amendments, which proved so distasteful to the lower House, that upon conference, the bills were abandoned. The object, however, of the prevailing party was attained, and the controversy between the two Houses put an end to by a pardon and pension to Oates from King William.

The case is mentioned here as a precedent for reversing by bill a judgment pronounced by the Lords in the exercise of appellate jurisdiction. Because, undoubtedly, that course of proceeding received the sanction of both Houses, although the remedy stopped short of consummation, owing to the political divisions of the period.

On the subject of rehearings and reviewals in the House of Lords, not a little misapprehension has been occasioned in practice by the terms of the Standing Order No. 57 (c), which are as follows:

() 5 Cobbett's Parliamentary History, 290.

() Appendix, No. 1.

That no petition which relates to the rehearing of any cause or part of a cause formerly heard in the House shall be read the same day that it is offered, but shall lie upon the table, and a future day be appointed for reading thereof after twelve of the clock.

That this order was never intended to sanction an application for a rehearing and reviewal after final judgment by the House of Lords, was deliberately determined in the Scotch case of Stewart v. Agnew; a case very important and instructive upon this and other points of practice.

The appellant having obtained a reversal of a judgment of the Court of Session in Scotland, applied afterwards to the court below, in the usual way, to have his judgment carried into execution. The respondents, on the other hand, were advised to resist execution, on the ground that the judgment of the House was, in truth, erroneous; and that it would, therefore, be proper to give the parties permission to petition for liberty to be reheard upon the merits of the cause. The Court of Session, on the 15th November, 1822, granted the respondents' application; the learned Judges of that court holding that the remit from the House of Lords, authorising them "to proceed as should be just," warranted their suspending execution, until the House should have had an opportunity of re-considering, and, if necessary, of altering, its decision.

Taking advantage of this permission, therefore, the respondents, on the opening of the ensuing session of Parliament, presented their petition to the House of Lords, praying that the appeal might be reheard, that the judgment of the House might be recalled, and that the original sentence of the Court of Session might be set up and affirmed.

This petition being taken into consideration (on the