asserted a right to review the proceedings of the Irish Courts of Justice, the House of Lords in England ordered an inquiry to be made; the result of which was, that all proceedings in the nature of appeals and writs of error had in the Irish House of Lords, were voted and declared null and void, as coram non judice. Of this controversy, which was very eagerly sustained, the particulars will be found in the Appendix(). It is enough here to say, that the right of the English House of Lords was established by many precedents-and was ultimately conceded and confirmed by the reluctant acquiescence of the Irish Parliament.

In 1783, however, an appellate jurisdiction was granted (or, perhaps, restored) to the Irish House of Lords by an Act of the British Parliament. But it was afterwards transferred, by the Treaty of Union, to the Parliament of Great Britain and Ireland; and is now vested in the House of Lords of the British Empire. Into the particulars of that arrangement I shall not enter; this sketch (already, perhaps, unduly extended), being now brought to a close.

(♥) See Appendix, No. 5.

PRACTICE

ON

ENGLISH AND IRISH APPEALS.

CHAPTER THE FIRST.

When an Appeal will Lie.

From what orders, 94.-- Will not lie on mere matter of Costs, unless where given by Statute, ib.-Nor from an Order by Consent, ib.-Nor from part of a Decree, by a Party who has already obtained Reversal of another part, 95.-Nor from an Order to show cause, before it is made absolute, ib.-Nor from a Decree made on the Statute of Charitable Uses, ib.-Nor from an Award made a Rule of Court, ib. -Nor from an Order by Exchequer, in the matter of an Extent, ib.-Nor from an Order of Exchequer, to sell real property of a Crown Debtor, 96.-Nor from Orders on Motion or Petition, in Idiotcy, Lunacy, or Bankruptcy, ib. - Whether from Commitments for Contempt? ib.—Appeal sustained from an Order upon Petition in relation to the Guardianship of an Infant, 100,—and in relation to other summary proceedings in the Court of Chancery, ib.-On filing a Bill, an Appeal will lie on matters ordinarily determinable on Petition or Motion, and not appealable, 101. -A Remainder-man may appeal from a Decree made against a prior Tenant in tail;-but he must first make himself a party to the proceedings in the Court below, 105.—A Purchaser under a Decree may appeal; and a Creditor who comes in under a Decree, 106.-An Appeal will not be received whilst the cause is abated below, ib.-Nor an Appeal per saltum, ib.

THE only Courts in England and Ireland whose decisions are now subject to review by Appeal to the House of Lords, are Courts of Equity.

There is this difference between Appeals from Courts of Equity, and Writs of Error from Courts of Law, that Appeals may be brought upon any interlocutory matter; Writs of Error upon nothing but a definitive judgment (*).

An Appeal will not lie on costs alone; but it does not follow that the article of costs may not be taken into consideration when there is an Appeal respecting other matters ("). The rule is thus laid down by Lord Brougham :

In the House of Lords, as well as in the Privy Council and Court of Chancery, you cannot appeal for costs alone; but you can bring an appeal on the merits; and if that is not a colourable ground of appeal for the purpose of introducing the question of costs, the Court of Review will treat that not as an appeal for costs, but will consider the question of costs as if fairly raised (©).

An Appeal will lie against a decree or order, refusing costs awarded by statute; for in such a case, the costs are not in the discretion of the Court below ().

It is an established rule, that an Appeal does not lie against a decree or order made by consent. Where the decree or order is expressed to be made upon the Appellant's own consent, the Appeal will be dismissed (*). In such a case Lord Hardwicke says, the House, on one occasion, desired the party to bring an action against the counsel ().

The right, however, to insist on this objection, may be waived by the conduct of the party; for although, as Lord Eldon observed (®)—

It had been stated, very truly, that an Order by consent could not be got rid of but by consent: yet where any proceedings are taken in a cause by a party, if those proceedings are not consistent with the execution of that Order to which he alleges all parties have consented, he has waived the right to insist upon the rule, that an Order by consent cannot be got rid of but by consent.

An Appellant who obtains a reversal of part of a decree, is not afterwards allowed to appeal from the remainder (1).

A rule to show cause before it is made absolute, is not appealable.

Nagle v. Foot, 12 May, 1739.-The appellant's counsel being, by direction of the House, desired to speak to this point only, "whether an appeal will lie from an Order of a court of equity, to show cause before the same be made absolute?" and counsel on both sides having been fully heard thereon, it was declared by the Lords, That this appeal being brought against an Order to show cause only, and no unreasonable delay having been occasioned to the parties by the time for showing cause, is improperly brought; and it is hereby ordered, that the said appeal be dismissed with 50%. costs.

Nor will an appeal lie from a decree made upon the statute of Charitable Uses (i),

An award, made a rule of court, is not subject to review by appeal in the House of Lords.

After hearing counsel on

O'Sullivan v. Hutchins, 30 June, 1825. an appeal against an Order of the Court of Chancery in Ireland; inasmuch as the said Order was not made in a cause on the Equity side of the Court of Chancery, (no Bill having been filed) it relating to an award made between parties on submission to a reference, according to an Act of the Irish Parliament, passed in the 10th of William III., the House determined that any Judgment by it on an Appeal complaining of such Order, would be incompetent; in respect the House had no Jurisdiction upon the subject matter of such appeal.

An order made by the Court of Exchequer, consequent upon a judgment of the Barons, in the matter of an extent upon facts, reported by the deputy-remembrancer to () Norbury v. Meade, 3 Bli. 261. (i) Saul v. Wilson, Vern. 118.

the court, on a reference to him, is not the subject-matter of an appeal to the House of Lords; because such order is an order made at law, and not in equity ().

The act 25 Geo. 3, c. 35, for the more effectual sale of lands of crown debtors, does not make the order of the Court of Exchequer to sell the real property of a crown debtor an equitable proceeding, so as to subject it to the jurisdiction of the House of Lords, by way of appeal (k).

Orders made on motion or petition, in matters of idiotcy, lunacy, or bankruptcy, are not appealable in Parliament.

On this head I extract, from the Journals, the following report of a committee, whose attention appears also to have been directed to the consideration of the question, how far an appeal lay to the House from commitments for contempt-a question which they left unsettled; and which, so far as I know, is still undecided.

14 February, 1721.-Upon reading the Petition and Appeal of Susanna Lady Wenman, wife of Richard Lord Viscount Wenman, of Tuam, in the Kingdom of Ireland, complaining of certain Orders of the High Court of Chancery of the 27th October 1718, the 20th January 1720; and particularly of an Order of the said Court of the 19th January last, whereby the Petitioner is committed to the Prison of the Fleet for a supposed Contempt, in not yielding obedience to the several Orders of the said Court and to the Precepts of the Commissioners in the said order mentioned for producing the said Lord Wenman; made upon the application of Sir William Osbaldeston, Bart., in the prosecution of a Commission of Idiocy against the said Lord, and praying that the said Sir William Osbaldeston may answer the premises, and show cause, if he can, why the said orders (so far as the same relate to the Petitioner) should not be set aside and reversed, and the Petitioner discharged from her said imprisonment and otherwise relieved; It is Ordered, that on Saturday next this House will take the said Petition and Appeal into consideration, and the Lords to be summoned.

17 February, 1721.-The House, according to Order, proceeds to take

() Wall . The Attorney-General, 11 Pri. 668.

(k) Ibid.