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office of the court to which an appeal was taken, an order was obtained requiring the respondent to answer. The order was served on the respondent, who thereupon put in his answer to the petition.24 A petition of appeal, like all other petitions to the lords, was presented by a peer, who mentioned it to the house in the words of the title, and moved that the petition might be read. The clerk thereupon read the prayer, and the proper order was made as a matter of course.25 Upon English appeals the time limited for answering was a fortnight, on Scotch appeals four weeks, and on Irish apeals five weeks from the date of the order. The order, in an English cause, was required to be served on the respondent, if in London, or his solicitor. If the appeal be from Ireland, the order was sent off without delay, to be served there. Care was required to be taken by the appellant's solicitor to enter into a recognizance, as hereinafter mentioned; otherwise the appeal would fall.26 The mode of serving the order was by delivering a true copy of it, and at the same time showing the original order. An affidavit of service was required to be indorsed thereon in the usual form.27 After an appeal had been lodged, the appellant was, within eight days, required to enter into a recognizance to answer costs.28 Where the appellant was not in London, his solicitor, or some other person for him, might enter into it, for which leave of the house was obtained, which was done upon a motion, made by a lord.29 The recognizance was not required in appeals by the attorney general on behalf of the crown.30 If an answer was not put in within the time limited

24 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1637-1641. 25 3 Daniell, Ch. Pl. & Pr. For form of such order, see 26 3 Daniell, Ch. Pl. & Pr. 27 3 Daniell, Ch. Pl. & Pr. 28 3 Daniell, Ch. Pl. & Pr. Palmer, Pr. H. L. 25.

(1st Am. Ed.) 1637; Palmer, Pr. H. L. 24. 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1637. (1st Am. Ed.) 1638. (1st Am. Ed.) 1638.

(1st Am. Ed.) 1638; Lords' Journ. 1710;

29 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1639. For form of the de feasance of the recognizance, see 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1639.

30 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1639; Palmer, Pr. H. L. 28.

for that purpose, a peremptory order on the respondent to answer might be obtained.31 Answers to petitions were of two kinds, general and special. A general answer admitted that the court made the decree or order as set forth in the petition, but, for greater certainty, referred to such decree or order when the same should be produced, and stated that the respondent was advised and apprehended that such decree or order was agreeable to equity and justice, and asked that the same be affirmed and the appeal dismissed with costs.32 An answer was special when particular facts were stated or some specific matter was alleged, either upon the merits of the case or upon any defect in form in the appeal, such as that there were not proper parties, or that the decree or order appealed from did not become final, but remained under review or rehearing, or that the date or purport of the decree or order was erroneously stated in the appeal. Special answers fell into disuse.33 Where both parties were dissatisfied with the determination of the court below, the respondent might seek review by preferring a cross appeal.34 The cross petition of appeal was in form the same as an original petition, except that it was entitled, "The petition and cross appeal," etc., and specified the particular nature of the decree or order appealed from. It was presented and moved and an order made upon it in the same method as upon an original appeal.35 No recognizance for costs was necessary upon cross appeals.36 The order to answer a cross appeal was served in the same manner as an order in the original appeal, but, the respondent in the cross appeal being the appellant in the original appeal, service of the order upon the agent of the respondent in the cross appeal was

31 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1639. For practice concerning such peremptory order, see 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1639; Palmer, Pr. H. L. 28.

32 3 Daniell, Ch. Pl. & Pr. 33 3 Daniell, Ch. Pl. & Pr. 34 3 Daniell, Ch. Pl. & Pr. 35 3 Daniell, Ch. Pl. & Pr. 36 3 Daniell, Ch. Pl. & Pr.

(1st Am. Ed.) 1640, 1641.
(1st Am. Ed.) 1641.

(1st Am. Ed.) 1641; Palmer, Pr. H. L. 33.
(1st Am. Ed.) 1642.

(1st Am. Ed.) 1642; Palmer, Pr. H. L. 34

sufficient.37 The answer to a cross appeal was in the same form as that to an original appeal, except that the title was, "The answer of A. B. to the petition and cross appeal of C. D.," and that, towards the end, instead of saying "that the decree," etc., "is just," it should be, "that the decree, in so far as complained of by the said C.D., is just and agreeable to equity," etc.38 The house of lords permitted an appeal to be amended after it had been presented.39 To obtain leave to amend, a petition was required to be presented and notice given to the opposite party.40 The respondent might move to amend."1 If an appeal was amended after a respondent had answered, and it was considered necessary that a new answer should be put in to the amended appeal, an order for leave to withdraw the former answer and put in the new answer might be obtained on petition. If the respondent failed to petition for such order, the appellant might proceed against him by a new peremptory order, and get the cause set down ex parte.42 Appeals might be withdrawn by leave of the lords, obtained on petition and notice to the adverse party.43

§ 768. Effect of appeal.

The effect of a successful appeal is to render useless, either wholly or in part, any proceedings under the original decree. Under the English practice, it did not follow that they would

37 3 Daniell, Ch. Pl. & Pr. 38 3 Daniell, Ch. Pl. & Pr. 39 3 Daniell, Ch. Pl. & Pr. Bligh (N. S.) 714.

(1st Am. Ed.) 1642; Palmer, Pr. H. L. 34. (1st Am. Ed.) 1642; Palmer, Pr. H. L. 34. (1st Am. Ed.) 1643; Bouchier v. Dillon, 5

(1st Am. Ed.) 1643.
(1st Am. Ed.) 1644.

40 3 Daniell, Ch. Pl. & Pr. 41 3 Daniell, Ch. Pl. & Pr. 42 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1644; Palmer, Pr. H. L. 42. 43 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1644; Palmer, Pr. H. L. 43. For right of appeal and procedure on appeal in the federal courts, see Foster, Fed. Pr. (3d Ed.) §§ 474-496; Desty, Fed. Proc. (9th Ed.); Beach, Mod. Eq. Pr. § 906 et seq. For appellate procedure generally, see Elliott, App. Proc., and American Digest (Century Ed.) tit. “Appeal and Error," vols. 2 and 3, §§ 1-4811, where the decisions in the various jurisdictions of the United States are digested. See, for English prac tice, 2 Smith, Ch. Pr. 17-47.

be stayed during its pendency, for it was presumed, until reversal, that the decree was right, and, if there were special grounds for requiring their stay, a distinct application must be made to the discretion of the court. If an order to stay them was made, it might be accompanied, in case of appeal, by the requirement that a similar order be applied for in the house of lords.44

$769. Procedure on appeal.

Under the English practice, after the answer was put in, either appellant or respondent might apply to the lords by motion to have the appeal appointed to be heard.45 Where two appeals related to the same subject, or the questions in both were similar, and one of them had been set down so as to stand several causes before the other, the house, upon petition, would order the second to stand next to the first.48 If the appellant or respondent died before the hearing, the appeal was required to be revived by petition to the house, in the name of the de ceased party's heir or personal representative, or both, as the occasion required, and supplemental cases delivered.47 On the hearing, one of the counsel for appellants opened the case, then the evidence on their side was read, and the other counsel for appellants made observations thereon; then one of the counsel for the respondents was heard, and the evidence on their side read, after which the other counsel for the respondents were heard, and one counsel only for the appellants replied.18

48

44 Adams, Eq. 401. See Storey v. Lennox, 1 Mylne & C. 685; City of Gloucester v. Wood, 3 Hare, 150.

45 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1645.

46 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1645; Palmer, Pr. H. L. 48. 47 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1645; Lords' Journal, 1813; Standing Order of March 20, 1823. See United States Supreme Court Rule 15; Green v. Watkins, 6 Wheat. (U. S.) 260; McClane v. Boon, b Wall. (U. S.) 244; Taylor v. Savage, 1 How. (U. S.) 282; United States Circuit Court of Appeals Rule 19.

48 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1649; Palmer, Pr. H. L. 68.

§ 770. Determination of appeal.

Under the English practice, when the arguments of counsel were finished, they withdrew from the bar, and the house, if then prepared, gave their judgment affirming the decree or order of the court below, with or without costs, or reversing or varying the same, according to the circumstances of the case. If lord conceived that the decree or order was erroneous, any he stated his reasons, and moved that it be reversed or varied. Should the rest of the house be of that opinion, a motion was put and carried, but, if it was opposed, then a debate ensued, and the question was put to vote, on which occasion proxies were not allowed; and, it being the rule of the house to put the question for reversing the decree or order, unless, upon a division, there was a majority for the reversal, it was affirmed.49 The decree may usually be reversed or affirmed simply, or it may be corrected or modified by the court of review. If the decree was substantially right, the practice in England was to affirm it with modifications or exceptions.50 Sometimes the house, instead of reversing or affirming, gave directions to the court below to rectify its judgment, in which case the order of the house of lords was required to be made a rule or order of the court of chancery.51 Such rule or order of the court

49 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1649, 1650.

50 Mitford & T. Pl. & Pr. in Eq. 489. In some of the American states, if a decree is decided to be erroneous in any particular, it is reversed, and a new decree is entered, and, if it appear to the court of review that, for the purposes of justice, there ought to be further proceedings in the court below, the cause will be remanded for further proceedings, and the court, in its order remanding the cause, may express the reasons for doing so, and its opinion on all points which have been made before it, and which may be presented by the record, and the reasons and the opinion contained in the order are conclusive on the court below. In such a case, a transcript of the proceedings in the court of review is filed in the lower court, which thereafter enters an order virtually reinstating the case before it, and then proceeds with it as if no appeal had been taken, but in accordance with the decision of the court of review. Mitford & T. Pl. & Pr. in Eq. 489, 490.

51 3 Daniell, Ch. Pl. & Pr. (1st Am. Ed.) 1650; Attorney-General v. Scott, 1 Ves. Sr. 419.

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