sheriff monthly.

29. That the said sheriff shall make out and deliver to the 15 VICTORIA, Lieutenant-Governor of the said colony on the second Monday in No. 10. every month a list of all fines which during the preceding month List of fines have been inflicted by the said court or by any judge thereof and made out by the which he has been ordered to collect or which it may otherwise be his duty to collect, which list shall show the names of the parties fined the amount of the fines inflicted collected or remaining uncollected.

30. That if any debtor in execution shall escape out of legal custody after the passing of this Act the sheriff deputy sheriff bailiff or other person having the custody of such debtor shall be liable only to any action upon the case for damages sustained by the person at whose suit such debtor was taken or imprisoned and shall not be liable to any action of debt in consequence of such escape.

31. [Repealed by 27 Vict. No. 233 s. 2, "Criminal Law and Practice," ante, p. 467.]

sheriff not liable an action of escape.

in
debt if debtor

5 & 6 Vict. c. 98 s. 31.

32. That it shall be lawful for the said court from time to time Power to make to make such rules for regulating the forms of process and mode of rules of practice. pleading in the said court, and for the practice of the same in all its various departments, and for fixing the amount of fees and costs to be lawfully demanded by the master in equity registrar prothonotary keeper of the records or other officers of the said court, for or in respect of the several proceedings and matters in their respective offices in the said court, and also the amount of all fees and costs to be allowed in respect of all other matters at any time depending in the said court, and also for the government and conduct of the officers and ministers of the said court, and for regulating the admission of barristers and of attorneys solicitors and proctors to practise therein, and also the qualification of candidates to practise as barristers and as attorneys solicitors and proctors in the said court, and for regulating the examination or further or renewed examination of such candidates and the several departments of literature science and law in which respectively such candidates are to be examined, and for fixing the amount of fees) and costs to be paid by them and the mode of application of the same as to the said court shall seem meet; and such rules from time to time to repeal vary and alter as occasion may require: Provided that every such rule when so by such court made shall be by it sent to the Colonial Secretary of the said colony, and by him laid before the Legislative Council thereof without delay: And it shall be lawful for the said Legislative Council, at any time within one calendar month after the same may have been laid before such Council, to present an address to the Lieutenant-Governor of the said colony to disallow any such rule, who if he think fit shall disallow the same accordingly: And if after having been so laid before the said Legislative Council for such time no such address be presented, such rule shall be published in the Government Gazette of the said colony: And every such rule, save as hereinafter provided, shall take effect from the promulgation thereof by the said court, and shall have the same

(a) The fees payable before examination of candidates for admission as conveyancers, &c., under the "Supreme Court Rules," are payable

by Act of Parliament; and the court will not entertain a petition for remission of any part of them. In re Scott, 1 W. & W. (L.), 7.

No. 10.

15 VICTORIA, force and efficacy as if inserted in this Act unless disallowed as herein mentioned: Provided that no such rule relating to any fee to be taken in any office in any department of the said court, or to any costs to be paid, shall have any effect until after the same shall have lain for one calendar month upon the table of the Legislative Council and have been published in the Government Gazette as herein before mentioned: Provided that a copy of every such rule shall, with all convenient despatch after the same has been published as aforesaid, be forwarded by the said Lieutenant-Governor to Her Majesty's Principal Secretary of State for the Colonies for Her Majesty's approval or disallowance thereof as to Her Majesty shall seem meet: Provided also, that all the rules and orders for regulating the process pleading and practice and other matters hereinbefore enumerated in use in the Supreme Court of New South Wales for the district of Port Phillip at the time of the commencement of this Act, shall continue and be in force in the said Supreme Court of the colony of Victoria until repealed by rules made by virtue of the provisions herein contained, except so far as any of them may be inconsistent with or repealed by the provisions of this Act.

Appeal.

33. That if any person feel aggrieved() by any decision of the said court in any civil proceeding of any nature depending in the said court in which the matter in issue amounts to one thousand pounds sterling in value, by which decision the merits of the case may be concluded, it shall be lawful for such person within thirty days after such decision may have been pronounced to apply to

(a) The Supreme Court has no power to grant leave to appeal to the Privy Council against the refusal of a rule nisi for a certiorari to quash an order of petty sessions, fining an attorney for wilful misbehaviour in court.-Reg. v. Mollison, ex parte Faussett, 3 V.R. (L.), 3.

The court will not grant leave to appeal from a demurrer allowed, where the action has not yet been tried, and the damages claimed are £500.-M'Kinnon v. The Board of Land and Works, 3 A.J.R., 47.

(b) Upon application, under the Order in Council, for leave to appeal, the value of the matter in issue is a fact to be tried and controverted, and upon which both sides are to be heard.-Kettle v. The Queen, 3 W. W. & a'B. (Eq.), 141.

Semble, that in a suit to restrain a mining trespasser, and for an account of gold removed where no account has yet been directed, the fact that if such account be directed at the hearing the matters then in issue will involve claims respecting property to the value of £1000, will not, as to appealable amount, authorise an appeal to the Privy Council.-The Attorney-General v. Prince of Wales Company, 6 W. W. & a'B. (Eq.), 4.

The incidental effect of a decree upon other property of the unsuccessful litigant, not directly affected by the suit, cannot be considered in order to make up the appealable amount to entitle him to appeal under the Order in Council. -Wakefield v. Parker, 6 W. W. & a'B. (Eq.), 322; N.C., 40.

order £10, and on appeal to the Supreme Court the order was affirmed, leave to appeal under the Order in Council was granted on the uncontradicted affidavit of the company's secretary, that the case "indirectly" involved a claim or demand relating to property of the value of £500.-The Bendigo Waterworks Company v. Thunder, 1 V.R. (L.), 123; 1 A.J.R., 103.

The value of the debtor's estate, not the amount of the petitioning creditor's debt, is to be regarded in estimating the amount of the matter in issue for the purpose of an appeal to the Privy Council from an order as to compulsory sequestration. In re Mc Donald, 2 V.R. (I. E. & M.), 12.

(c) The granting of a rule absolute for a new trial is not a decision by which the merits of the case may be concluded within the meaning of this section. The refusing of such a rule is a "decision" by which the merits are concluded.Crooks v. Ormerod, 3 W. W. & a'B. (L.), 132.

A judgment overruling a plea in equity does not conclude the merits of the case within the meaning of this section, so as to entitle the unsuccessful party to obtain leave to appeal to the Privy Council.-The Attorney-General v. Prince of Wales Company, ubi sup.

The allowance of a demurrer for want of parties is not a ground of appeal either under the Act or the Order in Council.-Woolley v. The Ironstone Hill G. M. Coy., 1 V.L.R. (Eq.).

(d) Where a summons for leave to appeal to the Privy Council had been taken out for a day within the thirty days, and had on that day Where a company had been fined by a justice's been adjourned by the judge to a day without the

the said court for leave to appeal therefrom to Her Majesty in Her 15 VICTORIA, Privy Council.(a) And in case any such person shall have been by

No. 10.

15 VICTORIA, Such decision directed to pay any sum of money, or perform any duty, it shall be lawful for the said court to direct that such decision be carried into execution, or that execution thereof shall be stayed, as to the said court shall appear most consistent with real and substantial justice: And in case the said court shall direct that such decision be carried into execution, it shall be lawful for the said court to require that the person in whose favor it was pronounced shall, before the execution thereof, enter into sufficient security to be approved of by the said court for the due performance of such sentence as Her Majesty's Privy Council may pronounce thereon, or in case the said court shall direct that the execution upon such decision be stayed pending such appeal, it shall be lawful for the said court to direct that the person against whom such decision shall have been given shall in like manner enter into sufficient security(@)

in such manner and under such rules as are or may be observed in appeals made to Her Majesty from Her Majesty's colonies and plantations abroad.

And it is further ordered, that it shall be lawful for the said Supreme Court, at its discretion, on the petition of any party who considers himself aggrieved by any preliminary or interlocutory judgment, decree, order, or sentence of the said Supreme Court, to grant permission to such party to appeal against the same to Her Majesty, her heirs and successors, in her or their Privy Council, subject to the same rules, regulations, and limitations as are herein expressed respecting appeals from final judgments, decrees, orders, and sentences.

Provided also, that if in any action, suit, or other proceeding it shall so happen that no final judgment, decree, order, or sentence can be duly given in consequence of a disagreement of opinion between the judges of the said Supreme Court, then and in such case the final judgment, decree, order, or sentence may be entered pro forma, on the petition of any of the parties to the action, suit, or other proceedings, according to the opinion of the Chief Justice, or in his absence of the Senior Puisne Judge of the said Supreme Court, provided that such judgment, decree, order, or sentence shall be deemed a judgment, decree, order, or sentence of the court for the purpose of an appeal against the same, but not for any other purpose.

Provided always, and it is hereby ordered, that nothing herein contained doth or shall extend or be construed to extend to take away or abridge the undoubtable right and authority of Her Majesty, her heirs and successors, upon the humble petition at any time of any person or persons aggrieved by any judgment or determination of the said court, to admit his, her, or their appeal therefrom, upon such terms, and upon such securities, limitations, restrictions, and regulations as Her Majesty, her heirs or successors, shall think fit, and to reverse, correct, or vary such judgment or determination as to Her Majesty, her heirs and successors, shall seem meet.

And it is further ordered, that in all cases of appeal allowed by the said court, or by Her Majesty, her heirs or successors, the said court shall certify and transmit to Her Majesty, her

heirs and successors, in her or their Privy Council, a true and exact copy of all evidence, proceedings, judgments, decrees, and orders had or made in such cases appealed, so far as the same have relation to the matters of appeal, such copies to be certified under the seal of the said court; and that the said court shall also certify and transmit to Her Majesty, her heirs and successors, in her or their Privy Council, a copy of the reasons given by the judges of such court, or by any of such judges, for or against the judgment or determination appealed against, where such reasons shall have been given in writing; and where such reasons shall have been given orally, then a statement in writing of the reasons given by the judges of such court, or by any of such judges, for or against the judgment or determination appealed against.

And it is further directed and ordained, that the said court shall, in all cases of appeal to Her Majesty, her heirs or successors, conform to and execute, or cause to be executed, such judgments and orders as Her Majesty, her heirs and successors, shall think fit to make in the premises, in such manner as any original judgment, decree, or decretal order, or other order or rule of the said court, should or might have been executed.

And the Most Noble the Duke of Newcastle, one of Her Majesty's Principal Secretaries of State, is to give the necessary directions herein accordingly.

ARTHUR HELPS.

(a) Where a rule was obtained for leave for B. to appeal to the Privy Council on certain terms, and H. and R. agreed to enter into a bond as sureties for B.'s due performance of those terms; and afterwards, without H.'s and R.'s knowledge or consent, but with the knowledge of B.'s attorney, the rule and bond were drawn up with an added term extending the liability of the sureties, and such bond was executed by H. and R. in the belief that it was in accordance with their original agreement, and they had no notice or knowledge of the addition of such term until the notification of the result of the appeal reached Victoria-Held, 1st-That the time from which the objection should be taken by H. and R. should be considered as commencing to run when the notification of the result of the appeal reached Victoria. 2nd

No. 10.

to be approved of as aforesaid, for the due performance on his part 15 VICTORIA, of such sentence as Her Majesty's Privy Council may pronounce thereon: And it shall be lawful to the said court, if it shall see fit so to do, to continue pending any such appeal any injunction before that time granted, or the appointment of any receiver appointed by the said court in such proceedings, or to grant an injunction to restrain the party in possession of the property from disposing thereof, and to appoint a receiver to manage the same pending such appeal : And in all cases to require that the person appealing from such decision shall give such sufficient security as aforesaid for payment of all costs previously incurred and to be incurred by reason of such appeal:) And in every case of appeal so allowed to be made, the said court shall transmit to Her Majesty's Privy Council a true copy certified under the seal of the said court of all the evidence and proceedings in the cause relating to the matter of the said appeal.)

That the court had inherent power to rectify the error.- Bateman v. Moffatt, 1 V.R. (L.), 107; 1 A.J.R., 97.

Upon leave being given to appeal against a decision of the court in favor of the Crown, the court is bound by the Order in Council, if the decree be carried into execution to require that the Crown shall enter into security for the due performance of the order of the Privy Council. -Kettle v. The Queen, 3 W. W. & a'B. (Eq.), 141.

(a) Leave to appeal pursuant to this section was allowed on condition of the appellant giving security within three months for costs of appeal. The appellant at first offered to deposit money to the amount of the security required, but afterwards a security bond was approved by the Master, and, without objection by the defendants, filed as of record; but, in consequence of objections afterwards taken by the defendant's solicitors to the competency of the proposed sureties, the bond was not filed within three months. Upon a motion by the defendants to set aside the leave to appeal upon that ground, the Supreme Court made an order revoking the leave given. In such circumstances their Lordships, upon petition, gave special leave to appeal on security being given for costs in England, with liberty for the petitioners to apply to the Supreme Court to cancel the security bond.-Webster v. Power, L.R., 1 P.C., 150.

Several actions in the nature of petitions of right were brought against the Crown under 28 Vict. No. 241, and judgments obtained against the Crown; but the Supreme Court refused leave to appeal to England, in some cases, because the amount recovered was under £500, and in other cases, except upon terms of the Attorney-General paying the amount of the verdicts with costs. In giving leave to appeal, upon special petition for that purpose, the Judicial Committee refused to sanction the terms imposed by the Supreme Court on the Attorney-General of finding security for costs of the appeals, and admitted the appeals without security being given.-In re The Attorney-General for Victoria, L.R., 1 P.C., 147.

Where the application for leave to appeal to the Privy Council is made under this Act, the

court may make any order as to the security for costs they think fit; but they have no discretion where they act under the Orders in Council, which distinctly state that "personal recognizances" only are to be required.-Hassell v. Moore, A R., 3 Oct. 1868.

On appeal by defendants it was ordered that they should give security for costs of appeal, that execution on the judgment for the plaintiff should not be stayed, but that plaintiff should give security to refund the amount if the Privy Council allowed the appeal.-Stevenson v. Bear, 3 A.J.R., 30.

Defendants obtained leave to appeal upon giving, within three months, security for the costs of the appeal; execution for recovery of plaintiff's costs of suit being stayed until they gave security for refunding such costs, if so ordered by the Privy Council. The appeal was not proceeded with, and no security for costs given by the defendants. After the lapse of the three months, an order was made revoking the leave to appeal, and giving liberty to the plaintiffs to proceed for their costs, notwithstanding the former order.-The Mayor, &c., of Ballarat v. The Bungaree Road Board, 1 V.R. (Eq.),

166.

For form of order where the subject matter of the suit is of an exceedingly fluctuating value, see M'Lister v. The Garden Gully U. Q. M. Co., 5 A.J.R., 170.

Upon motion under the Order in Council for leave to appeal, either execution of the order appealed from must be stayed simply or the respondent must give security to perform the order on appeal.—Johnson v. Colclough, 1 V.L.R. (Eq.), 31.

(b) Defendants obtained an order for liberty to appeal to the Privy Council from a decision of the Supreme Court, and deposited £500 to abide the appeal under the Order. On rule nisi, obtained by the defendants to rescind their own order for appeal-Held, that the court had no jurisdiction to interfere, and rule discharged, but without costs.-Byrnes v. Clough, 2 W. W. & a'B. (L.), 17.

After leave to appeal has been granted, the Supreme Court has no jurisdiction over the case.― Goldsborough v. McCulloch, 2 A.J.R., 1.