Note 163 — Chapter VII

This case is given briefly in contemporary reports, under the title of Smith and others v. Lord Pomfret and wife. It had been originally heard before Lord Camden when he held the Great Seal. He directed an action at law to be brought to try the right in dispute. The verdict, as Walpole correctly states, was given against Lord Pomfret. His Lordship then applied to the Commissioners of the Great Seal, who had succeeded Lord Camden, for a new trial, which they refused. On this he appealed to the Lords, where a new trial, and not the estate in question, was granted, upon some distinction taken by Lord Mansfield as to the original order for the action having been made without Lord Pomfret’s consent—a point which seems to have escaped the counsel, who had argued the case on the merits, which seem to have been on Lord Pomfret’s side, since the new trial ended in a verdict in his favour. There are some points of practice involved in the case which make it probable that the decision of the Lords would not be followed in the present day, and there is no doubt that the interference of the lay Lords in the adjudication of rights of this nature was wholly unjustifiable. No similar instance has occurred during the present century,—the attendance of lay peers on appeals being regarded as a mere matter of form. The decision on the appeal rests exclusively with the law peers, otherwise the appeal would be from a court of great authority to one of none at all.—E.