SCOTCH APPEAL CASE. (Hansard, 13 October 1831)

The Lord Chancellor
said, that he had made inquiry into this case, and found that no material loss would result to either party, by risking the postponement of it till another Session. Under these circumstances, and being of opinion that it would be much better not to proceed in the matter without investigating all the precedents that bore upon it, he should not, for the present, press the Second Reading of the Bill.

Lord Ellenborough
perfectly concurred 690 with the opinion which had been expressed by the noble and learned Lord.

§ Lord Wynford
thought, there was a previous question which he wished their Lordships to decide. The Bill assumed two things which were false. It assumed that the judgment ordered the cause to be tried by a Special Jury of merchants, whereas the judgment only directed that the cause should be tried by a Special Jury, and said nothing about merchants. This was the order of their Lordships, and the Court of Session ought to have complied with it. The Court of Session, however, had not thought proper to do so. Now, if he, when presiding over the Court of Common Pleas, had thought proper to deal with any order of their Lordships as the Court of Session had dealt with this order, he had no doubt that he should have been brought before the House to answer for his conduct. Another thing which the Bill assumed was, that the Court of Session had no power to examine the parties before a Jury. This was not true. The Court of Session had the power, and if they were not aware of the fact, they ought to be informed of it. He took it, also, to be as clear as day-light, that the House had the power to amend their order without a Bill of this kind. The Bill, therefore, was unnecessary. As to rehearing a case, he spoke upon good authority when he said, that their Lordships ought not to re-hear any case, however erroneous the judgment they had pronounced in it might be; because it was better even that injustice should be done in one case, than that the foundation upon which all property was held should be uncertain and unsettled. As to the judgment in this case, it was not erroneous. He had the authority of his noble and learned friend (the Chief Baron) for saying this. His noble and learned friend had examined the case, and had pronounced the judgment to be right. In conclusion, he must again observe, that the parties would have been in possession of their money long before this, if the Court of Session had not taken upon themselves to neglect the order of their Lordships.

The Lord Chancellor
said, that this was a matter in which he could have no interest—a matter of perfect indifference to him. He did, however, think it necessary to notice what had fallen from his noble and learned friend respecting the Judges of the Court of Session, lest something 691 unfavourable to those learned persons—something to their disparagement should go forth. His noble and learned friend had blamed the Judges of the Court of Session for not paying instant obedience to the order of their Lordships: but he begged to assure their Lordships that he had seen the correspondence on this subject—correspondence than which nothing could be more respectful, but which, at the same time, proved that these learned Judges had felt great difficulty in carrying their Lordships' order into execution. They felt that they had not the power to carry it into execution. He thought it but fair and just to the Judges of that Court to assure their Lordships, that those learned persons were wholly free from the charge of contumacy, or of holding out against a judgment of their Lordships.

§ Lord Wynford
I did not charge them with that.

The Lord Chancellor
No: he knew his noble and learned friend had not used those words—had not made that charge—his noble and learned friend had only said that if he, as Chief Justice of the Common Pleas, had behaved as the Judges of the Court of Session had behaved, he should have been made to answer for his conduct to that House. He was quite sure, however, that his noble and learned friend could not mean by this that the Judges of the Court of Session ought to be brought before the House to answer for their conduct. Of course his noble and learned friend could not have meant that. His noble and learned friend was quite satisfied that that House might amend its own order if it pleased.

§ Lord Wynford
Other Courts do it.

The Lord Chancellor
No doubt they did; but they were inferior Courts, whose judgments were subject to revision. He was one of those who thought that if a Court from which there was no appeal could amend its orders in substance— for clerical errors stood on different grounds—a door would be opened to the most perilous results. However great, therefore, might be the satisfaction of his noble and learned friend on this point, he could not go along with his noble and learned friend in that satisfaction, without diligently consulting all the precedents which bore upon the subject. He must be satisfied as well as his noble and learned friend, and for that purpose he now postponed the second reading of the Bill.