1836. NARAIN RAE v. count against them in a character which they did not RAJUNDER Sustain. The ground of the amendment here allowed expressly is that the order amended had been framed under a mistake as to the variations which the House really agreed to make in the decree appealed from. This amendment was made upon great consideration and after a committee had been appointed to search for precedents. BIJAI GOVIND SING. The last case mentioned is that of Agnew v. Dunlop in 1823, in which an application to rehear the very important judgment that had been given was without hesitation refused. But it being represented that the order reversing the decree appealed from, and adjudg ing the estates in question to the appellant, had also decided in his favour another question, which had not been argued at the bar, namely, his claim to the rents and profits since the title accrued. The House took this into consideration. It is certain that the question was adverted to in the printed cases, and though not argued at the bar, that it might have been argued; and that the respondent might have taken, at the hearing, the objection which he now put forward, that the matter had not been argued in the Court below. All this is stated in the preamble of the order made by their Lordships on the application to amend, in which counsel were heard. Nevertheless their Lordships "conceiving that the neglect of the respondents, either to discuss the question on the hearing of the appeal, or to request that it might be remitted to the consideration of the Court below, arose from the mistaken apprehension that the House of Lords could not regularly hear it because it had not been discussed below," think fit, "under the particu lar circumstances of the case, to order that the judg 1836. ment be amended by omitting the words &c," that is, the part of the judgment disposing of the question RAJUNDERof debts and profits, which is saved entire for both parties to proceed upon in the Court below." The following cases, extracted from the Journals of the House of Lords, are added to those already cited in the judgment of Lord Brougham, in further illustration of the practice that has prevailed upon applications to reverse, amend, or vary decrees or orders after they have been pronounced by the House. The importance of the practice, and the voluminous nature of the records from whence they are taken, will, it is hoped, justify the attempt to enhance the value of the above decision, by furnishing the profession with an epitome of the decisions upon those points. Besides the cases alluded to, judgment was reversed in Petet v. Hyde, A.D. 1670, Lords' Journals, 12 vol., 147, where an order was made, reversing a previous order, by which possession of certain premises have been given to the sequestrator: in Pitt v. Pelham, A. D. 1670, Lords' Journals, 12 vol., 392, 397, where an order was made, reversing a former order, which reversed the judgment of the Court below, establishing therefore the decree appealed from: and in Hallett v. Kendall, A.D. 1678, Lords' Journals, 13 vol., 234, where, on petition of Henry Neilder and Johanna his wife, showing that the said Johanna was an infant at the time of the former hearing, and was not heard or comprehended in the former judgment of 20 May 1675, though her name was inserted in the judgment, in conformity to the title of the petition then depending, and thereby dismissed; it was ordered that leave be given to the said Henry Neilder and said Johanna, his wife to proceed below in the Court of Chancery, as counsel shall advise them, notwithstanding any former order or judgment of the House relating to the said matter, which is not to prejudice their proceedings in the Court below. Amendments or alterations in the orders or judgments of the House have been permitted in Ravenscroft v. Lenthall, A.D. 1668, Lords' Journals, 12 vol., 207-211, where the sum specified in the original order was altered on the oath of the petitioner, made at the bar, as to its being a mistake: in Chute v. Lady Dacres, A.D. 1680, Lords' Journals 13 vol., 709, an order was made amending a former order, by inserting the word "legacy" in place of "debt: " in Coke v. Cobb, A.D. 1689, Lords' Journals, 14 vol., 375, where NARAIN v. BIJAI GOVIND SING, 1836. It is impossible to doubt that the indulgence exRAJUNDER- tended in such cases, is mainly owing to the natural NARAIN RAE ". BIJAI GOVIND SING. the order was on consent, to transpose words in the judgment: in Ashfield v. Ashfield, A. D. 1689, Lords' Journals, 14 vol., 395, where words were inserted, in order to explain a former judgment: in Fountain v. Coke, A. D. 1690, Lords' Journals, 14 vol., 473, words were added to restrain the effect of the former judgment: in Davey v. Courtney, A.D. 1692, Lords' Journals, 15 vol., 178, where the original order was amended by fixing the time at which a trial at law should take place: in Bovey v. Smith, ib., 285, where words were ordered to be left out of the judgment: in Stephens v. Castle, A.D. 1695, ib., 625, where words were ordered to be inserted in the recital of a former judgment: in Lloyd & Godolphin v. Carew, A.D. 1697, Lords' Journals, 16 vol., 246, where words were added in explanation of the judgment: in Warner v. Jackson, A.D. 1699, ib., 520, where words were added, restraining proceedings in the court below: in Tiley v. Wharton, A. D. 1701, ib., 714-731, where the order was amended by adding provision for the costs of the trial at law directed in Birch v. Rawlinson, A. D. 1704, Lords' Journals, 17 vol., 659-661, where the judgment was amended by adding the words after revising the order appealed from, "and that the parties may be at liberty to bring their appeal from the Court of Admiralty to a a Court of Delegates:" in Falkland (Viscountess) v. Lord Cheney, A. D. 1704, ib., 681, where, on petition of the appellant, words were added to explain the order pronounced. In Phillips v. Bury, A. D. 1709, Lords' Journals, 19 vol., 13, judgment on a writ of error was amended; vide also Shireburn v. Hitch, ib., citing precedents. Cheres v. Geoghegan, A. D. 1720, Lords' Journals, 21 vol., 482. The following cases were referred to by the Lords appointed to search for precedents, in the case of Page v. Hamilton, supra, Morgan v. Jones; the King v. Amery; Kelly v. Woodward, and Hill v. Spence. In Morgan v. Jones, A. D. 1785, Lords' Journals, 37 vol., 344-5, the judgment was amended as to the sums mentioned in the order, on an allegation of mistake in the printed case, and consent of the appellant and in Keley v. Woodward, A.D. 1805, Lords' Journals, 45 vol., 201, the order was amended by inserting the amount of the costs allowed; in the other cases, such permission was refused, see infra: in Sibbald v. Hill, A.D. 1814, Lords' Journals, 49 vol., 1106, 1836. desire prevailing to prevent irremediable injustice being done by a Court of the last resort, where by RAJUNDER a clerical error was amended: in Lady Essex v. Wauchope, A. D. 1819, Lords' Journals, 52 vol., 335, an error in the dates was amended. Paton v. Brebner, A. D. 1829. ib., 702. : Applications to amend or vary the judgment of the IIouse have been refused in the following cases; in Eyre v. Eyre, A. D. 1689, Lords' Journals, 14 vol., 230.233, where, after an order to search for precedents, wherein the House have thought fit to explain or set aside their former judgments or orders, and hearing counsel, petition for that purpose was dismissed. S. P. Powle v. Earl of Dorset, A. D. 1690, ib., 598: in Whitaker v. Paulin, A. D. 1692, Lords' Journals, 15 vol., 161, where a petition of the respondent, praying time to be fixed in the order of the House, from whence the account therein directed should be taken, was dismissed: in Asheton v. Asheton, A. D. 1694, ib., 457, where a petition, to explain an order made by the House, was dismissed, with liberty, however, to apply, if the Court of Chancery should find difficulty in carrying the same into effect: in Caroll v. Eustace, A. D. 1700, Lords' Journals, 16 vol., 558, a petition to amend was dismissed in Baiseley v. Stratford, A. D. 1700, ib., 566, a petition to rehear was dismissed. Lord Mahun v. Duke and Duchess of Hamilton. A. D. 1703, Lords' Journals, 17 vol., 391, the petition of the appellant against part of the judgment pronounced, was dismissed. Horton v. Harrington, A. D. 1706, Lords' Journals, 18 vol., 233, a petition was dismissed after search for precedents, and report thereon by Lords' Committee: in The King v. Amery, A. D. 1793, Lords' Journals, 19 vol., 754, motion to add directions to tax relators' costs passed in the negative. Fraser v. The Advocate General, ▲. D. 1795, Lords' Journals, 40 vol., 540, was a case similar in many respects to that in the text; the circumstances of which were as follows: In the year 1795, the Honourable Archibald Fraser presented his petition to the House, stating the disposition and tailzie of the estate of Lovat, by Simon, late Lord Fraser, of Lovat, whereby the same was conveyed to Simon Fraser, his eldest son, in tail male, remainder to Alexander, his second son, in tail male, remainder to the petitioner, his third son, in tail male, with ultimate remainder in tail general, under strict settlement. In 1747, Simon, Lord Fraser, was attainted of high treason, and, by an Act passed 20 Geo. 2, the estates of Lord Lovat were, NARAIN 2. BIJAI GOVIND SING. 1836. some accident, without any blame, the party has not RAJUNDER- been heard, and an order has been inadvertently made as if the party had been heard. NARAIN V. BIJAI GOVIND SING. with others, vested in the Crown, provision being made for entering claims on the estates so vested; in pursuance of which a claim was entered in the Court of Session, for Alexander Fraser, the second son, and the petitioner, the third son, of Lord Lovat, claiming their right of succession to the estate according to Lord Lovat's entail, after the death of their elder brother, Simon, which was signed as directed by the above Act, before two witnesses, by John M'Farlane, as factor for Alexander Fraser and his curators, and by Primrose Campbell, Lady Fraser, of Lovat, the petitioner's mother, for him, then an infant of tender years, without guardians, it being by the provision of the statute directed, that claims for infants might be entered by the father or guardians, or by any other person. By the judgment of the Court of Session, 21 November 1750, the estate of Lovat was determined by a majority of one voice, to be forfeited by the attainder of Lord Lovat, and the claim was dismissed. From this decision an appeal was presented to the House of Lords, which was entered on the rolls as the humble petition and appeal of Alexander Fraser, second son, and Archibald Fraser, third son of Simon, late Lord Fraser, of Lovat, deceased, without any other addition or qualification, and which, coming on to be heard on the 26th November 1751, was, upon the consent of Mr. Ross, who claimed to act as agent for the petitioners, dismissed, and the interlocutor complained of, affirmed. In the year 1774, an Act of Parliament was passed, reversing the attainder of Lord Lovat, and disannexing the estate of Lovat from the Crown, and enabling His Majesty to make a grant of the estate to the said Simon Fraser, the eldest son of the late Lord Lovat, part of the preamble of which Act was in these words: "And whereas, before the attainder of the said Simon, late Lord Lovat, his said estate was settled by a deed of entail, which, coming to be tried before the Court of Session in Scotland, the estate was determined to be forfeited by a majority of one voice, and that judgment was not appealed from.” Under the grant made in pursuance of this statute, General Fraser enjoyed the estate till his death, in February 1782, and having died without issue, he, a short time before his death, made a settlement of the estate contrary to Lord Lovat's entail in every particular, whereby the peti |