SCOTCH APPEALS. (Hansard, 11 October 1831)

§ Lord Wynford
could not let that opportunity pass without asserting that he was ready to maintain the correctness of the judgment he had pronounced in this cause, and which his noble and learned friend had last night impugned. The Bill assumed that be directed the issue to be tried by a Jury of merchants, but he did no such thing.

The Lord Chancellor
was sorry that his noble and learned friend felt so much annoyed on this subject, or that he should at all imagine that his professional character was affected by it. He had yet to learn that a knowledge of the Scotch law or practice formed any portion of the education of an English lawyer. On the contrary, he believed that the better lawyer an English advocate was, the less he was likely to know of the practice of Scotch law, and the more probable it was, that he should fall into the mistake that special Juries, so familiar to the mind of an English practitioner, should be also found in a country so civilized as Scotland. He was anxious to postpone this Bill to Thursday, in order to have the advantage of the presence of his noble and learned predecessor, in whose time this judgment had been pronounced, and who was fully acquainted with all the circumstances of the case, which he himself was not. He 489 did not imagine that any doubt existed as to the propriety of passing this Bill; but after what had fallen from his noble and learned friend, he should make particular inquiries concerning it.

§ Lord Wynford
said, he held in his hand the judgment which he had pronounced, and it contained no such words as, "Special Jury of Merchants." The words in it were "Special Jury."

Lord Ellenborough
suggested, that the proper course would be, to refer the matter to a Committee of privileges. It appeared to him that if an error had been committed, their Lordships could correct it without an Act of Parliament, and that it was not expedient to involve the House of Commons in an act to correct an error in their own judicial proceedings. At present there was no foundation for such a bill in the shape of a petition from the parties in the cause; and, even if the proceeding were a right one, it should not be done hastily, and without a due observance of the rules and orders of the House.

The Lord Chancellor
said, this was not a Bill for the purpose of altering a judgment of the House, but for the purpose of placing a cause in a state fit for a rehearing. There would be abundance of time for discussing the subject on Thursday.

§ Lord Wynford
said, that as a lawyer and as a layman, he had no doubt as to the correctness of the judgment he had given. This cause related to a partnership, and, to the disgrace of the judicature of the country, it had been before the Courts since the period of the American war. The Scotch Judges, instead of sending a question of a matter of fact, which the case involved, to a Jury, sent it to an accountant for decision. He (Lord Wynford), seeing that it was a cause that ought to be tried by a Jury, ordered it to be sent to one, and the parties to be examined, and he was, in point of law, justified in sending it to a Special Jury in Scotland, as, by a late Act of Parliament, Juries had been introduced into that country for the trial of important civil causes. He had to complain that the Judges in Scotland, and the parties interested in this matter, had not corresponded with him on the subject, and that they had withheld all their light from the very individual who would now have to defend the judgment. In pursuance of the practice of the Courts of Equity in England in similar cases, he had ordered that the parties should be examined on 490 oath, and it was now said, that this could not be, as the original parties to the suit had long since died; but that fact did not vitiate or annul the judgment; for if their Lordships decided in a case to-day, that the parties should be examined on oath, and those parties should die to-morrow, that fact would not annul the judgment. Even supposing the judgment in this particular case wrong, there was no occasion for an Act of Parliament to correct the error. He should be sorry to think it necessary to apply to the House of Commons to correct a clerical error in one of their Lordships' judicial decisions, and to suppose that they did not possess a power vested in the lowest Courts in the kingdom, of correcting errors in their own decisions.

The Lord Chancellor
said, it would be inconvenient to proceed with this discussion now in the absence of the noble and learned Lord (Lyndhurst) with whom the Judges in Scotland had corresponded on the subject, who was fully acquainted with it, and who had no doubt that there was a mistake. He begged to assure his noble and learned friend (Lord Wynford) that there was nothing more common in Scotch practice than to refer to an accountant the decision of disputed matters of fact.