order as to the costs of the appeal: Re M'Connell, Saunders v. M., 29 Ch. Div. 76.

But costs of shorthand notes of evidence in the Court below are not allowed, except in very special cases: Kelly v. Byles, 13 Ch. Div. 682; Glasier v. Rolls, 38 W. R. 116; 58 L. J. Ch. 820; 62 L. T. N.S. 305; and application for such allowance should be made at the hearing, and a special direction inserted in the order: Earl de la Warr v. Miles, 19 Ch. Div. 80; Glasier v. Rolls, sup. ; Ashworth v. Outram, 9 Ch. Div. 483.

Shorthand notes of evidence have been allowed in solr and client taxation, as extra costs on appeal: Re Nation, N. v. Hamilton, 57 L. T. N.S. 648; and see Bidder v. Bridges, W. N. (87) 208.

A shorthand note of evidence taken by a clerk to the solr of one of the parties cannot be used: Ellington v. Clark, 38 Ch. Div. 332.

The costs of transcribing and printing, but not of taking the notes, were allowed by the Court of Appeal: Bigsby v. Dickinson, 4 Ch. Div. 24, 32.

In ordinary cases the Judge's notes, supplemented by those of counsel, are sufficient for the use of the Court of Appeal: Walker's Case, C. A., 16 Dec. 1878, Reg. Min. fo. 233; Krehl v. Burrell, C. A., 21 Mar. 1879, Reg. Min. fo. 263; Earl De la Warr v. Miles, sup.; and see Re Gee, Laming v. G., 28 W. R. 217.

As to the duty of the appellant to procure such notes, see Ellington v. Clark, 38 Ch. Div. 332; and see Lumb v. Teal, 22 Q. B. D. 675.

As to the power of the Court of Appeal to admit any evidence which has been improperly rejected, see Dollman v. Jones, 12 Ch. Div. 553.

By r. 13, on any question as to a Judge's ruling or direction to a jury or assessors, the Court of Appeal is to have regard to verified notes, or other evidence, and to such other materials as the Court may deem expedient.

By r. 4, the Court of Appeal has full discretionary power to receive further evidence upon questions of fact, either by oral examination in Court, by affidavit, or by deposition taken before an examiner or commissioner. Such further evidence may be given without special leave upon interlocutory applications, or in any case as to matters which have occurred after the date of the decision appealed from. Upon appeals from a judgment after trial or hearing of any cause or matter upon the merits, such further evidence (save as to matters subsequent as aforesaid) is to be admitted on special grounds only, and not without special leave of the Court.

Further evidence means any evidence whatever not used at the hearing in the Court below: Re Chennell, Jones v. Chennell, 8 Ch. Div. 492, 505.

Special grounds for admitting evidence on appeals are afforded by the rejection of the evidence in the Court below on purely technical grounds: Re Chennell, sup.; or where the judgment of the Court below is founded on mistake, misapprehension, or surprise: Bigsby v. Dickinson, 4 Ch. Div. 24. But such further evidence is not by any means to be admitted without strong reason: Re Chennell, sup. ; and see Sanders v. S., 19 Ch. Div. 373; Pooley's Trustee v. Whetham, 28 Ch. Div. 38; Evans v. Benyon, 37 Ch. Div. 345; and will not be admitted where there has been no surprise, and the evidence has not been discovered since the hearing: Exp. Carnforth Co., 4 Ch. Div. 115; Weston's Case, 10 Ch. Div. 579.

Where the proposed further evidence is documentary, the proper course is to give notice to the other side that the Court will be moved at the hearing of the appeal to give special leave to adduce further evidence: Hastie v. H., 1 Ch. Div. 562; Justice v. Mersey Co., 24 W. R. 199; and see Re Chennell, sup.; but where it is proposed to examine fresh witnesses, the application for leave must be by motion before the hearing: Dicks v. Brooks, 13 Ch. Div. 652.

Where it was proposed to adduce affidavit evidence which the witness declined to swear, the Court gave leave on motion to serve him with a subpoena to attend at the hearing of the appeal without prejudice to any question as to the admissibility of the evidence, and intimated that the applicant must explain why it was not sooner adduced: Gover's Case, 24 W. R. 36.

The words "judgment after trial or hearing of the cause or matter upon the merits," appear to include not only final judgments, but also inter

locutory judgments, as distinct from interlocutory orders: v. sup. p. 730; and that applications for such judgments are not within O. XXXVIII. 3, as to evidence on information and belief, see Gilbert v. Endean, 9 Ch. Div. 259.

An order on summons by a creditor in an admon action is final as regards reception of further evidence: Re Compton, Norton v. C., 27 Ch. Div. 392; secus, a refusal by the Judge to order sequestration against Deft co. for breach of injunction: Spencer v. Ancoats Vale Rubber Co., 58 L. T. N.S. 363.

And where at the trial witnesses have been examined orally, further affidavit evidence by them will not, in general, be admitted on appeal: Taylor v. Grange, 13 Ch. Div. 165.

A respondent who objects to a further affidavit being used on appeal should not file affidavits in reply, but wait till the hearing and then apply for time: Mitchell v. Condy, W. N. (81) 83.

Whether the rule applies where the party seeking to adduce further evidence adduced none in the Court below, quære: Arnison v. Smith, 41 Ch. Div. 98.

If a note of oral evidence has been lost, the Court may allow the evidence to be re-taken: Exp. Firth, Re Cowburn, 19 Ch. Div. 419.

For case in which further evidence was adduced by consent, and the hearing of the appeal treated as the trial of the action, see Harris v. De Pinna, 33 Ch. Div. 255.

POWERS OF THE COURT OF APPEAL.

By O. LVIII. 4, the Court of Appeal is to have all the powers and duties, as to amendment and otherwise, of the Court of first instance, and is to have power to give any judgment and make any order which ought to have been made, and to make such further or other order as the case may require (including (r. 5) the power of setting aside the verdict and judgment, and directing a new trial on the hearing of an appeal from a judgment on the verdict or finding of a jury, or of a Judge without a jury, varying the practice as stated in Yetts v. Foster, 3 C. P. Div. 437; Etty v. Wilson, 3 Ex. Div. 359; Davies v. Felix, 4 Ex. Div. 32),-and may exercise these powers notwithstanding that the notice of appeal may be that part only of the decision may be reversed or varied, or in favour of all or any of the respondents or parties, although they may not have appealed from or complained of the decision.

Although the Court has the full powers of the Court below as to amendment, they will not be exercised so as to allow an appellant to raise upon appeal a case totally inconsistent with his original case: Exp. Reddish, 5 Ch. Div. 883; Cropper v. Smith, 26 Ch. Div. 700; Hipgrave v. Case, 28 Ch. Div. 356, 361; or a point not taken in the Court below, and as to which contradictory evidence might have been adduced: Exp. Firth, Re Cowburn, 19 Ch. Div. 419; and see The Tasmania, 15 App. Cas. 223, 225; nor where some of numerous Plts were unavoidably absent at the trial, but it did not appear why they did not instruct their solr to give such evidence as he could, or as would enable him to apply for adjournment: Arnison v. Smith, 41 Ch. Div. 98; and after judgment on appeal the Court refused leave to amend so as to give relief against third parties, which had not been asked for at the trial: Edison and Swan, &c. Co. v. Holland, 41 Ch. Div. 28; and quare whether the Court of Appeal has jurisdiction to give judgment for an injunction and damages against third parties as if they were Defts: S. C.

Where an application at the trial for leave to amend pleadings is refused, the Court of Appeal has power to give leave to amend: Laird v. Briggs, 16 Ch. Div. 663.

Liberty to amend after the time for appealing had long expired was granted under special circumstances on special terms: Kurtz v. Spence, 36 Ch. Div.

770.

Where a jury found issues in favour of the Plt, for whom a general verdict was given, and judgment was afterwards given for the Deft, the Court of Appeal, on affirming the judgment, amended the record by entering the verdict for the Plt on the issues only: Clack v. Wood, 9 Q. B. Div. 276.

As to rectification of accidental slip, whereby evidence really before the

Court on the hearing of the appeal was omitted from the order, see Exp. Banco de Portugal, Re Hooper, 14 Ch. Div. 1.

The Court will not readily allow an appellant whose notice of appeal affects part of an order only, to ask that the whole may be discharged; and in cases where such an application is allowed, the omission to give a proper notice in the first instance will usually be a ground for a special order as to costs: per James, L. J., in Cracknall v. Janson, 4 March. 1879.

Under this rule a respondent served by direction of the Court of Appeal was held entitled to ask at the hearing of the appeal to have the decree varied in his favour: Hunter v. H., 24 W. R. 527.

CROSS APPEALS.

By O. LVIII. 6, a respondent need not give notice of motion by way of cross appeal, but if he intends upon the hearing of an appeal to contend that the decision of the Court below be varied, he is to give notice (which is, subject to special order, to be an eight days' notice in the case of an appeal from a final judgment, and a two days' notice in the case of an appeal from an interlocutory order: r. 7) of his intention to any parties who may be affected by his contention. The omission to give such notice is not to diminish the powers conferred by the Jud. Acts upon the Court of Appeal, but may, in the discretion of the Court, be a ground for an adjournment of the appeal, or for a special order as to costs.

A notice by a respondent under r. 6 need not be given within the time limited by r. 15: Exp. Bishop, Re Fox, Walker & Co., 15 Ch. Div. 400.

A respondent seeking a variation of the order on a point in which the appellant has no interest, must give a separate notice of appeal: Re Cavander's Trusts, 16 Ch. Div. 270.

A respondent may give notice under r. 6 to a co-respondent: Exp. Payne, Re Cross, 11 Ch. Div. 539.

Where an appellant withdraws his appeal, a respondent who has given such notice is entitled to elect whether he will continue or withdraw his cross appeal: The Beeswing, 10 P. Div. 18; if he continues, the appellant may give a notice renewing his original contention: S. C.

COSTS OF APPEAL.

By O. LVIII. 5, the Court of Appeal shall have power to make such order as to the whole or any part of the costs of an appeal as may seem just.

By the Judge's memorandum, 1 Ch. D. 41, the rule of the Court of Chancery that a successful appellant is not entitled to costs, is no longer to be acted upon; and in all cases of appeals commenced under the new practice, the successful appellant is to be entitled to costs, unless in the particular case the Court shall otherwise direct.

This rule is one of general application: The Batavier, 15 P. Div. 37; Olivant v. Wright, 45 L. J. Ch. 1; and includes salvage cases: The City of Berlin, 2 P. D. 187; and has been adopted in the case of appeals to the Chief Judge in bankruptcy: Exp. Masters, 1 Ch. D. 113.

But the Court has a discretion (see O. LXV. 1; Jud. Act, 1890, s. 5), and a successful appellant may be refused costs where he fails to prove allegations of fraud: Exp. Cooper, 10 Ch. Div. 313; or succeeds on a point not raised in the Court below: Hussey v. Payne, 8 Ch. Div. 670; Chard v. Jervis, 9 Q. B. Div. 178; Dye v. D., 13 Q. B. Div. 147; or one point only out of many Elliot v. Lord Rokeby, 7 App. Cas. 43; or on fresh evidence: Exp. Hauxwell, 23 Ch. Div. 643; Arnot's Case, 36 Ch. Div. 702; and respondents whose conduct had justified the appeal were refused costs: Paterson v. Provost of St. Andrews, 6 App. Ca. 833 (Sc.); and a respondent who, having a preliminary objection, knowingly allows appellant to incur costs in preparing for an appeal, may be deprived of his costs: Re Blyth and Young, 13 Ch. Div. 416; Re Speight, Exp. Brooks, 13 Q. B. D. 42 ; but see Exp. Stead, Re Mundy, 15 Q. B. Div. 331.

An order as to costs was refused where the Court was not furnished with information as to the reasons of the Judge below: Re McConnell, Saunders v. M., 29 Ch. Div. 76.

VOL. I.

3 B

Where a trustee in bankruptcy adopts the action and abandons an appeal, it will be dismissed with costs: Borneman v. Wilson, 28 Ch. Div. 53.

Where two Defts appealed jointly and one succeeded, both appellants were allowed their costs of appeal, a cross appeal having failed, and the costs not having been increased by the joint appeal: Graham v. Campbell, 7 Ch. Div. 490, 495.

And a wife, party to an appeal in respect of her separate estate, was entitled to her costs though joined with her husband in the appeal, in a case where the husband was bankrupt: Kevan v. Crawford, 6 Ch. Div. 29; but see Wright v. Chard, 4 Drew. 702.

Cost of an unsuccessful appeal out of a fund in Court will only be allowed under very special circumstances: Re Barlow, Barton v. Spencer, 36 Ch. D. 387.

Where an appeal has been abandoned, it will be dismissed with costs though not set down: Charlton v. C., 16 Ch. Div. 273; but before application for costs of an abandoned appeal is made, there should be a previous demand for payment of them: Griffin v. Allen, 11 Ch. Div. 913.

An abandoned appeal will not be dismissed with costs on the ex parte application of the appellant: Ormerod v. Bleasdale, 54 L. T. N.S. 343.

Where an appeal is dismissed on the objection of the respondent that the notice of appeal is too late, the appellant will not be made to pay costs of his affidavits filed after the appeal was set down: Exp. Fardon's Vinegar Co., Re Jones, 14 Ch. Div. 285.

Where an appeal is simply dismissed after a cross appeal by the respondent, the costs occasioned by the cross appeal are to be deducted: The Lauretta, 4 P. Div. 25.

Where one of two respondents gave a cross notice affecting his co-respondent, the appeal failing and cross appeal succeeding, costs were apportioned: Harrison v. Cornwall Minerals Ry. Co., 18 Ch. Div. 334; but where the costs have not been materially increased by the cross appeal, there will be no apportionment: Robinson v. Drakes, 23 Ch. Div. 98.

Third parties, who in reality fought the Plts and failed, were ordered, together with the Defts, to pay the costs both of appeal and in Court below: Edison and Swan, &c. Co. v. Holland, 41 Ch. Div. 28.

The common law practice to have only one taxation in an action does not apply where costs are given to a party on appeal, and if there is no direction postponing taxation and payment, the party is entitled to taxation and payment forthwith: Phillips v. P., 5 Q. B. Div. 60.

8. Security for Costs by Deposit―0. LVIII. 15.

UPON motion this day made &c.; This Court doth order that the Plt H. do lodge the sum of £- in Court to the credit of this action [or matter] &c., "Security for the costs of the Plt's appeal," as directed in the schedule hereto to answer costs in case any shall be awarded to be paid by the Plt on his appeal against the order dated &c.; And it is ordered that in the meantime, and until such lodgment is made, and notice thereof given to the solr of the Deft, all proceedings in this appeal be stayed.—[Add Lodgment Schedule, Form 1.]-See Re Ivory, Hankin v. Turner, C. A., 2 Nov. 1878, A. 3243; 10 Ch. D. 372; and see Form 11, inf.

It is not the practice to fix a time in the order, but if the security is not given within a reasonable time an immediate order of dismissal is made: see Washburn and Moen Manufacturing Co. v. Patterson, 29 Ch. Div. 48; Polini v. Gray, 11 Ch. Div. 741.

9. The Like, by Bond, with Option to deposit a Sum in Court. UPON motion this day made &c., And upon reading &c., This Court doth order that the Plt J. do procure some sufficient person in his

behalf to give security, according to the course of this Court, by bond to the appellant, in the penal sum of £-, conditioned to answer any costs occasioned by the Plt's appeal against the judgment &c., in case any costs shall be awarded to be paid by the Plt; And it is ordered that in lieu of such security the Plt J. be at liberty to lodge the sum of £-in Court to the credit of &c., "Security for the costs of the Plt's appeal" as directed in the schedule hereto; And the Plt's appeal is not to be placed in the paper for hearing until days after such security has been given, and notice thereof given to the Defts; [or And in the meantime all proceedings in this appeal are to be stayed ;] And the costs of the Plts and Defts of this application are to be included in the costs of the appeal.-[Add Lodgment Schedule, Form 1.]-See Judd v. Green, C. A., 25 April, 1876, A. 1017; S. C., 4 Ch. Div. 784; Nantyglo and Blaina Ironworks Co. v. Grave, C. A., 22 May, 1878, B. 1524.

For like order, see Phosphate Sewage Co. v. Hartmont, C. A., 31 May, 1876, B. 1700; 2 Ch. Div. 811.

For order directing a Plt to pay to the Deft his costs of an abandoned appeal, and to give security by bond for the costs of a fresh appeal in the same action, and staying the prosecution of the appeal in the meantime, see Waddell v. Blockey, C. A., 18 Dec. 1878, B. 2273; 10 Ch. Div. 416.

10. Appeal dismissed for want of Prosecution in Default of

Security.

WHEREAS by an order dated &c., it was ordered that &c. (Recite order in Form 9, sup., verbatim); Now upon motion this day made unto this Court by counsel for the Deft, who alleged that the Plt hath not lodged the said sum of £- in Court as directed by the said order, and therefore prayed that the appeal of the Plt might be dismissed with costs; And no one appearing for the Plt [or And upon hearing &c.]; And upon reading &c. [if so, and an affidavit of &c., filed &c., of service of notice of this motion on the Plt]; This Court doth order that the said appeal of the Plt do stand dismissed; And it is ordered that the Plt H. do pay to the Deft T. his costs occasioned by the Plt's notice of appeal, including the costs of the said order dated the 2nd day of November, 1878, and of this application, such costs to be taxed by the Taxing Master.-See Re Ivory, Hankin v. Turner, C. A., 27 Nov. 1878, A. 2075; 10 Ch. Div. 377.

For like order, see Judd v. Green, C. A., 2 Feb. 1877, A. 234; 4 Ch. Div. 784; and see Harris v. Fleming, 30 W. R. 555; Polini v. Gray, 11 Ch. Div. 741.

SECURITY FOR COSTS OF APPEAL.

By O. LVIII. 15, such deposit or other security for the costs to be occasioned by any appeal shall be made or given as may be directed under special circumstances by the Court of Appeal.

In all cases where the Court of Appeal directs security for costs to the