Under the old practice an appeal could be brought direct from an order made by the Judge in Chambers: Saunders v. Druce, 3 Drew. 139; if an order had been drawn up: Vyse v. Foster, 10 Ch. 236; or if the Judge certified that the case had been sufficiently argued before him in Chambers: Warrant Finance Co.'s case, 5 Ch. 88; Stroughill v. Gulliver, 1 D. & J. 113; or declined to adjourn it: Ridgway v. Newstead, 4 D. & J. 15; Snowdon v. Metropolitan Railway, 1 D. J. & S. 408 (sed v. McVeagh v. Croall, 11 W. R. 385; 1 D. J. & S. 399); and leave to appeal direct from an order made in Chambers without counsel was obtained from the Court of Appeal, and not from the Judge in whose Chambers the order was made: Allen v. Jarvis, 4 Ch. 616; Warrant Finance Co.'s case, 5 Ch. 88.

In order to save expense in the Chancery Division it has been the practice to entertain appeals from orders made in Chambers without any formal application for leave, if it appears by a certificate of the chief clerk or by the order (Murr v. Cooke, 24 W. R. 756), or otherwise, that the matter has been fully argued before the Judge: Re Elsom, Thomas v. E., 6 Ch. D. 346; Dickson v. Harrison, 9 Ch. Div. 243; or if the order relates to a mere point of practice, and is ex debito justitiæ: Northampton, &c. Co. v. Midland Waggon Co., 7 Ch. Div. 500; but now an appeal from an order made in Chambers in the Chancery Division or Probate Division will not be entertained by the Court of Appeal unless the Judge gives leave to appeal direct, or a certificate that he does not wish to hear the case further argued: Re Smith, Rigg v. Hughes, 50 L. T. N.S. 293.

Where all parties have been heard by counsel in Chambers, the chief clerk will give the certificate, and upon it the parties may go direct to the Court of Appeal: A. G. v. Llewellyn, 58 L. T. N.S. 367; W. N. (88) 88; and in such a case it is not necessary or proper to move to discharge the order: S. C.; but where an order had been made in Chambers by way of final judgment against an exor on originating summons, and all parties had not been represented by counsel, the proper course was to move to discharge such order: Re Somerville, Downes v. S., 56 L. T. N.S. 424; W. N. (87) 79; and see Re Butler's Wharf Co., 21 Ch. D. 131 (where it was said that application should be made to the Judge in Chambers to adjourn the summons into Court), not following Holloway v. Cheston, 19 Ch. D. 516 (where it was said that the proper course was to give notice of motion to discharge the order, so as to enable the Judge to give his reasons).

There cannot be any appeal direct from a certificate merely approved by the Judge: Rhodes v. Ibbetson, 4 D. M. & G. 787; Briggs v. Wilson, 5 D. M. & G. 12; 2 Eq. Rep. 153.

Appeals from an exercise of discretion by a Judge in Chambers will not be entertained by the Court of Appeal: Golding v. Wharton, &c. Co., 24 W. R.

423.

In Rhodes v. R., 1 Ch. 483, an appeal as to the rejection of evidence on an inquiry in Chambers was ordered to stand over to come on with any motion to vary the certificate.

By O. LVIII. 15, no appeal from an interlocutory order is, except by special leave of the Court of Appeal, to be brought after the expiration of twenty-one days, to be calculated from the time at which it is signed, entered, or otherwise perfected, or in case of the refusal of an application, from the date of such refusal.

Whether a Judge can rehear in Chambers an order previously made there, but not drawn up, quære: Re Eyton, Exp. Charlesworth, 36 Ch. Div. 299; and see A. G. v. Llewellyn, W. N. (88) 88; 58 L. T. N.S. 367.

The order on motion to discharge is in all Divisions subject to appeal like any other interlocutory order: Dickson v. Harrison, 9 Ch. Div. 243, 245; and see Fox v. Wallis, 2 C. P. Div. 45.

6. Judgments obtained by Fraud. Where a decision of the Court of Appeal is impeached as having been obtained by fraud, the proper course is, not to apply for a rehearing, but to commence an original action in the High Court to set aside the judgment on the ground of fraud: Flower v. Lloyd, 6 Ch. Div. 297; and it seems that a judgment will not be set aside merely on the ground of perjury or falsification of evidence: S. C., 10 Ch. Div. 327.

7. Orders within the Discretion of the Judge.-In matters within the discretion of the Judge of the Court below, the Court of Appeal has complete jurisdiction, but declines to interfere except in extreme cases, or where the Judge has clearly proceeded on a wrong principle: Watson v. Rodwell, 3 Ch. D. 380, 383; Re Martin, Hunt v. Chambers, 20 Ch. Div. 365; Wallingford v. Mutual Society, 5 App. Cas. 685; and therefore appeals will not, in general, be entertained from orders on applications to strike out pleadings: Exp. E. & W. India Dock Co., Re Clarke, 17 Ch. Div. 759; Golding v. Wharton Co., 1 Q. B. Div. 374; Watson v. Rodwell, 3 Ch. Div. 380; and see Cashin v. Cradock, 3 Ch. Div. 376; unless the pleading is embarrassing, so that the order is ex debito justitiæ: Davy v. Garrett, 7 Ch. Div. 473; nor from an order that the question at issue be stated in the form of a special case: Met. Bd. of Works v. New River Co., 2 Q. B. Div. 67; or tried in a particular manner: Ruston v. Tobin, 10 Ch. Div. 558; Re Martin, Hunt v. Chambers, sup.; Mangan v. Metropolitan Electric Supply Co., (1891) 2 Ch. (C. A.) 551; explaining Jenkins v. Bushby, (1891) 1 Ch. (C. A.) 484; or referred to an official or special referee: Ormerod v. Todmorden Mill Co., 8 Q. B. Div. 664; nor from an order for security on a debtor's summons: Exp. Marshall, 5 Ch. Div. 873; nor from a refusal to commit for contempt: Ashworth v. Outram (No. 2), 5 Ch. Div. 943; nor an order for examination of persons deemed to be capable of giving information under sect. 115 of the Companies Act, 1862 Re Gold Co., 12 Ch. Div. 77; nor an order refusing to displace debenture holders' receiver by the liquidator of the co.: Re Stubbs, Barney v. S., (1891) 1 Ch. (C. A.) 475; nor an order reviewing the decision of a taxing master, where no principle is involved: Real and Personal Advance Co. v. McCarthy, 18 Ch. Div. 362; nor an order allowing taxation of a bill after payment on the ground of "special circumstances," where the amount involved is small: Re Cheesman, 39 W. R. 497; and see Re Harrison, 33 Ch. Div. 52. As to the competency of appeals from committals for contempt, see Reg.v. Jordan, W. N. (88) 152; Jarmain v. Chatterton, 20 Ch. Div. 493; Ashworth v. Outram, 5 Ch. Div. 943.

On a question of privilege for documents, no appeal will be allowed from a decision of the Judge at Chambers to whom the documents have by consent been submitted: Bustros v. White, 1 Q. B. Div. 423.

Notwithstanding the great weight due in cases of conflict of vivâ voce evidence to the decision of a Judge of first instance who has seen the manner and demeanour of the witnesses, the Court of Appeal will draw its own inferences and conclusions in such cases, making due allowance for the absence of the witnesses: Bigsby v. Dickinson, 4 Ch. Div. 24; The Glannibanta, 1 P. Div. 287.

On the question whether an appeal will lie from the opinion of the Q. B. Division on a case stated by an arbitrator under the Ĉ. L. P. Act, 1854, 8. 5 (now sect. 7 of the Arbitration Act, 1889), see Jones v. Victoria Dock Co., 2 Q. B. Div. 314.

Leave to appeal to the House of Lords on a question of discretion will not be granted: Re Clark, Exp. E. and W. India Dock Co., 17 Ch. Div. 759.

8. Order in exercise of consultative jurisdiction.-No appeal lies from a decision of the High Court of Justice upon questions submitted to it under sect. 29 of the Local Government Act, 1888 (51 & 52 V. c. 41), the jurisdiction under that section being consultative only, and not judicial: Ex parte County Council of Kent, (1891) 1 Q. B. (C. A.) 725.

WHO MAY APPEAL.

In the absence of any special provisions in the Jud. Acts and Rules of Court the former practice remains unaltered on this point.

In the case of suits in the Court of Chancery, all persons parties to the suit, or served with or bound by the decree, might appeal from it: Bruff v. Cobbold, 7 Ch. 217; Ellison v. Thomas, 2 D. J. & S. 18; Giffard v. Hort, 1 Sch. & L. 386, 409; Crawcour v. Salter, 30 W. R. 329; and see Osborne v. Usher, 2 Bro. P. C. 314; Dan. 1270.

One of several Plts can appeal against his co-Plts: Jopp v. Wood, 2 D. J. & S. 323; and alone without his co-Plts: Beckett v. Attwood, 18 Ch. Div. 54.

In a representative action, a dissentient member of a class represented by the Plt cannot appeal from an order in favour of the class, but, semble, should apply in the Court below to be made a Deft: Watson v. Cave, 17 Ch. Div. 19.

Where the appellant was not a party to the record, he could only appeal by leave to be obtained on petition or motion ex parte from the Court of Appeal: Parmeter v. P., 2 D. F. & J. 526 ; Hodgson v. Clarke, 1 D. F. & J. 394; 2 D. F. & J. 526; and see Bruff v. Cobbold, 7 Ch. 217; Dan. 1270; and in this case the leave of the Court of Appeal is still to be obtained on ex parte motion: see Re Markham, M. v. M., 16 Ch. Div. 1. An executor of a deceased party who has given notice of appeal may prosecute the appeal under the common order of revivor: Ranson v. Patton, 17 Ch. Div. 766.

Leave to appeal will not be given to a person not a party, unless his interest is such that he might have been made a party: Crawcour v. Salter, 30 W. R. 329; Re Madras Irrigation Co., 23 Ch. Div. 248; Re Youngs, Doggett v. Revett, 30 Ch. Div. 421.

A Deft who has since the trial become bankrupt may appeal from an order for an injunction without the trustee: Deuce v. Mason, 41 L. T. N.S. 573. Where a trustee had not been appointed, a notice of appeal by the receiver in bankruptcy was ordered to be amended by adding the petitioning creditor, and the debtor: Exp. Chalmers, 11 Ch. Div. 911.

As to the principles upon which leave to appeal has been granted to liquidators under the winding-up of cos., see Re Silver Valley Mines, 21 Ch. Div. 381; Re City and County Investment Co., 13 Ch. Div. 475; Buckley, 275.

Under the present practice an uncertificated bankrupt cannot appeal against an order establishing a money demand which had been proved against his estate: Vale v. Oppert, 5 Ch. Div. 969.

An appeal involving a question of status was allowed to proceed notwithstanding the appellant's bankruptcy: Gordon v. Merricks, 10 App. Cas. 171 (Sc.).

A person summoned as a witness under s. 115 of the Companies Act, 1862, has (semble) no locus standi to appeal against the order directing his attendance: Re Gold Co., 12 Ch. Div. 77.

In a test action on neglect of Deft to appeal, a Deft in one of the other actions may be substituted: Briton Medical and General Life Assce. Soc. v. Jones, 60 L. T. N.S. 637.

MODE OF APPEALING-MOTIONS BEFORE THE COURT OF APPEAL.

1. Appeal Motions.-By O. LVIII. 1, all appeals are to be by way of rehearing, and are to be brought by motion in a summary way, and no formal proceeding is necessary other than notice of the motion, thus substituting a uniform mode of appeal for the several modes by which appeals were brought before the Jud. Acts-i.e., petition of rehearing in the case of a decree or decretal order, appeal petition in the case of an order on petition, and appeal motion on a two days' notice in the case of an order on motion or in Chambers.

Appeal motions under the new practice are perfectly distinct from appeal motions before the Jud. Acts and from original motions, and are solely regulated by the subsequent rules of O. LVIII.

As to cross appeals under the new practice, v. inf. p. 737.

2. Original Motions in Pending Appeals.-Applications in pending appeals are to be made by original motion under O. LVIII. 17, 18.

By r. 17, every application which under these rules may be made either to the Court below or a Judge thereof, or to the Court of Appeal or a Judge thereof, is to be made in the first instance to the Court or Judge below; and by r. 18, every application to a Judge of the Court of Appeal is to be by motion under the provisions of O. LII.

Motions under these rules which are to be made before the Court of Appeal in the first instance, and in respect of which the Court therefore has original jurisdiction, have been distinguished from applications which are to be made first before the Court or Judge below, in respect of which the Court of Appeal has an appellate jurisdiction; but in both cases the practice in the Court of Appeal is the same as that on original motion: see A. G. v. Swansea Co., 9 Ch. Div. 46; Cooper v. C., 2 Ch. Div. 492, Form 12, inf. p. 742.

3. Ex parte Applications.-By O. LVIII. 10, it is provided that when any ex parte application has been refused by the Court below, an application for a similar purpose may be made to the Court of Appeal ex parte within four days from the refusal, or such extended time as a Judge of the Court below or of the Appeal Court may allow.

NOTICE OF APPEAL.

By O. LVIII. 1, the appellant may, by notice of motion, appeal from the whole or part only of any judgment or order, and the notice of appeal is to state whether the whole or part of the judgment or order is complained of, and if part only, is to specify such part.

Under this rule service of the notice constitutes the appeal: Exp. Viney, 4 Ch. D. 794.

Mere communication of an intention to appeal is not a sufficient notice of appeal: Re New Callao Co., 22 Ch. Div. 484; Re Blyth and Young, 13 Ch. Div. 416; and see Re Manchester Economic Building Soc., 24 Ch. Div. 488.

A notice otherwise regular is not bad because the solrs are inaccurately described, and whether the notice should be signed by solrs, qu.: Kettlewell v. Watson, 52 L. J. Ch. 818.

The rule applies only in cases of original appeals, cross appeals being provided for by rr. 6, 7: v. inf. p. 737.

A notice of appeal may be withdrawn and a fresh notice given if within time: Norton v. L. & N. W. Ry. Co., 13 Ch. Div. 268; and see Watson v. Cave, 17 Ch. Div. 19.

Notice of discontinuance of an action ipso facto vacates an appeal by the Plt: Conybeare v. Lewis, 13 Ch. Div. 469.

Where a four days' notice of appeal was given instead of a fourteen days' notice, the time for appealing was extended, the applicant having given in proper time a distinct notice of appeal: Re Crosley, Munns v. Burn, 34 Ch. Div. 664.

By r. 2, the notice is to be served on all parties directly affected by the appeal, and it is not necessary to serve parties not so affected; but the Court of Appeal may direct notice of the appeal to be served on all or any parties to the action or proceeding, or upon any person not a party, and in the meantime may postpone or adjourn the hearing upon such terms as may seem just, and give such judgment or make such order as might have been given or made, if the persons served had been originally parties.

A third party who has been served by a Deft, and has obtained leave to appear at the trial, is not a person directly affected: Re Salmon, Priest v. Uppleby, 42 Ch. Div. 351; diss. Cotton, L. J.

Under this rule it was held that where a Deft appealed against an order discharging a rule for a new trial after a verdict against him and in favour of his co-Deft, the Court could not entertain the appeal in the absence of the co-Deft, and had jurisdiction to order service on him: Purnell v. G. W. Ry. Co., 24 W. R. 720, 909.

So, too, where any one of three persons might, according to the construction to be put on a will, be entitled to a fund, the notice of appeal of one of them was ordered to be served on the others: Hunter v. H., 24 W. R. 504.

The usual practice in these cases is not to draw up any order; when service has been effected the appeal is replaced in the paper by the proper officer, or, if necessary, on application to the Court.

Notice of appeal from a refusal to annul an adjudication must be served on the trustee in bankruptcy as well as the petitioning creditor: Exp. Ward, Re Ward, 15 Ch. Div. 292.

An order for substituted service of a notice of appeal may be made in a proper case: Exp. Warburg, Re Whalley, 24 Ch. Div. 364.

A party affected, but not served with notice, may appear gratis on the appeal, and obtain his costs if the appeal is dismissed, though for irregularity: Re New Callao Co., 22 Ch. Div. 484.

By r. 2, any notice of appeal may be amended at any time as to the Court of Appeal may seem fit; and, accordingly, where a four days' notice of appeal had been given, instead of fourteen days, which the Court held to be

required under r. 3, the notice was amended at the hearing: Re Stockton Iron Furnace Co., 10 Ch. Div. 335.

By r. 3, notice of appeal from any judgment, whether final or interlocutory, or from a final order, is to be a fourteen days' notice, and notice of appeal from an interlocutory order is to be a four days' notice.

FINAL OR INTERLOCUTORY JUDGMENTS OR ORDERS.

Every decision of the High Court is, for the purpose of appeal, either final or interlocutory: Standard Discount Co. v. Lagrange, 3 C. P. Div. 67, 69.

The distinction between "final" and "interlocutory" judgments and orders is important, under O. LVIII., with reference (1) to the time for appealing (r. 15); (2) to the length of the notice of appeal (r. 3); (3) to the composition of the tribunal before which the appeal is heard (Jud. Act, 1875, s. 12); and (4) to the admissibility of further evidence on the appeal (r. 4).

A precise definition of the meaning of these terms cannot be given (see Re Lewis, L. v. Williams, 31 Ch. Div. 623, per Chitty, J., at p. 627); but, in general, a judgment may be said to be final when it is necessarily conclusive as to the matter in dispute, whether given in favour of Plt or Deft: see Standard Discount Co. v. Lagrange, 3 C. P. Div. 67, 69; Salaman v. Warner, (1891) 1 Q. B. (C. A.) 734; Jones v. Insole, 64 L. T. N.S. 703.

But orders which do not determine rights (Re Stockton Iron Furnace Co., 10 Ch. Div. 349), or which merely direct how declarations of right already given are to be worked out (Blakey v. Latham, 43 Ch. Div. 23), or which, though in fact finally determining the action, would, if a contrary decision had been given, have not determined it (Sulaman v. Warner, sup.), are interlocutory.

And a judgment or order may be final within r. 3 or r. 4 as to the length of notice of appeal required or the admissibility of further evidence, but not so within r. 15 as respects the time for appealing; ex. gr., an order adjudicating on a claim against the estate in an admon action: Re Crosley, Munns v. Burn, 34 Ch. Div. 664; Re Compton, Norton v. C., 27 Ch. Div. 392; Re Lewis, L. v. Williams, 31 Ch. Div. 623; Pheysey v. P., 12 Ch. Div. 305.

Orders on demurrer, under the former practice: Trowell v. Shenton, 8 Ch. Div. 318, 321; Fitzgerald v. Dawson, 24 W. R. 129; an order striking out a statement of claim on the ground that it discloses no cause of action: Jones v. Insole, sup. ; judgments at the hearing: Internat. Society v. City of Moscow Gas Co., 7 Ch. Div. 241; judgments in default of pleading under O. XXVII.: Whistler v. Hancock, 3 Q. B. D. 83; Wallis v. Hepburn, 3 Q. B. D. 84, n.; but see Gossett v. Campbell, W. N. (77) 134; or on admissions in the pleadings under 0. XXXII. 6: A. G. v. G. E. Ry. Co., 48 L. J. Ch. 428; Re Emmet, E. v. E., 13 Ch. D. 484, 489; and see Jenkins v. Davies, 1 Ch. D. 696; Gilbert v. Smith, 2 Ch. Div. 686, 689; and orders on further consideration: Cummins v. Herron, 4 Ch. Div. 787; but see Re Johnson, inf.; an order under O. xv. in form of a foreclosure judgment: Smith v. Davies, 31 Ch. Div. 595; on special case stated by an arbitrator, where the decision necessitated the entering of final judgment: Shubrook v. Tufnell, 9 Q. B. Div. 621; an order confirming chief clerk's certificate as to damages by trespass: A. G. v. Tomline, 15 Ch. Div. 152; an order at a trial by jury depriving a successful party of costs: Marsden v. Lancashire and Yorkshire Ry. Co., 7 Q. B. Div. 641; are final.

The decision of a Divisional Court on a case stated by the Inland Revenue Commissioners, under sect. 19 of the Stamp Act, 1870, is not a "judgment," but an order," and therefore to be appealed from within twenty-one days: Onslow v. Inland Revenue, 25 Q. B. Div. 465.

But as an originating summons is an action, an order on such a summons, equivalent to judgment in the action, is appealable within a year: Re Fawsitt, Galland v. Burton, 30 Ch. Div. 231.

Orders on applications for leave to sign judgment under O. XIV. 1: Standard Discount Co. v. La Grange, 3 C. P. Div. 67; dismissing an action upon the hearing of a point of law under O. xxv. 2, 3, before trial: Salaman v. Warner, (1891) 1 Q. B. (C. A.) 734; findings on interpleader issues: M'Andrew v. Barker, 7 Ch. Div. 701; orders on creditors' claims in admon actions: Trail v. Jackson, 4 Ch. Div. 7; allowing set-off of costs consequent upon the dismissal of an appeal with costs: Blakey v. Latham,