15 VICTORIA, 34. That if such security as shall be required by the said Court No. 10. be not entered into within three months(a) from the date of the order Right of appeal made upon such application for leave to appeal, the person applying waive if security for such leave shall be held to have waived the benefit of such order, unless the time for entering into such security be enlarged by the said court. not given in time. Prerogative of saved. Commencement of Act. 35. That nothing in this Act contained shall be construed to affect the Royal Prerogative of Her Majesty, or to abridge the power of Her Majesty to allow any person aggrieved by any decision of the said court to appeal to Her Majesty at any time in such manner as Her Majesty may be graciously pleased to allow. 36. That this Act shall commence and take effect from the time of the passing thereof. An Act to enable the Sheriff of the Colony of [22nd January 1853.] HEREAS it is expedient that the sheriff of the colony of Victoria should be empowered to appoint deputies: Be it therefore enacted by His Excellency the Lieutenant-Governor of the said colony by and with the advice and consent of the Legislative Council thereof :— 1. That the sheriff of the said colony may and he is hereby authorised and empowered from time to time by any writing under his hand and seal to appoint any such deputy as shall to him seem fit and for whose acts and deeds the said sheriff shall be responsible and accountable; and the said sheriff may from time to time revoke every such appointment; and every such deputy shall and he is hereby authorised to execute any writ summons rule order warrant precept command or process of any court in the said colony directed (a) See cases under note (a), p. 2441. No. 31. to the said sheriff thereof, and make return of the same together with 16 VICTORIA, the manner of the execution thereof, and receive and detain in prison all such persons as shall be committed to the custody of the sheriff of the said colony, and do and perform all such other acts as the said sheriff would be bound to do and perform. Provided that it shall Proviso. be lawful for the said sheriff for his own security to cause every such deputy to enter into and execute such bond or recognizance conditioned for the due payment of any moneys which shall come to his hands and for the due performance of all the duties of his office and for the indemnity of the said sheriff against the consequences of any default of such deputy therein as to such sheriff shall seem meet. Provided further that no such deputy shall have jurisdiction within Proviso. the district or locality in or for which any deputy sheriff may have been appointed by the Lieutenant-Governor of the said colony. An Act to amend an Act intituled "An Act to make provision for the better Administration of Justice in the colony of Victoria." [19th March 1856.] WHEREAS WHEREAS by an Act of the Lieutenant-Governor and Legis- Preamble, lative Council of Victoria passed in the fifteenth year of Her present Majesty's reign intituled "An Act to make provision for the 15 Vict. No. 10. better Administration of Justice in the colony of Victoria" it was amongst other things enacted that a court should be holden in and for the colony of Victoria and its dependencies which should be styled "The Supreme Court of the Colony of Victoria" and that such court should consist of and be holden by and before a judge or judges not exceeding three in number: And whereas by an Act intituled "An Act to enable Her Majesty to assent to a Bill as amended of the 18 & 19 Vict. Legislature of Victoria to establish a Constitution in and for the c. 55. No. 13. 19 VICTORIA, colony of Victoria" provision is made for the salaries and pensions of a chief justice and three puisne judges of the said Supreme Court and also respecting the appointment and commissions of the said judges and their removal from office: And whereas it is expedient for the more effectual administration of justice in Victoria to make provision for the appointment of one addional judge of the said court and otherwise to amend the said first recited Act: Be it therefore enacted by His Excellency the Governor of Victoria by and with the advice and consent of the Legislative Council thereof as follows (that is to say) : Governor with tive Council may appoint additional judge. 1. It shall and may be lawful for the Governor of Victoria with advice of Execu- the advice of the Executive Council to appoint one fit and proper person qualified as in the said first recited Act mentioned as and to be a judge of the said court in addition to the number of judges so authorised by the said Act to be appointed: And after the passing of this Act the said court may be held before any one or more of the judges appointed or to be appointed under this Act and the said recited Acts or any of them: and if such judges shall be equally divided in opinion on any matter, the decision of the chief justice or the senior puisne judge then present shall be the decision of the said court. Judge appointed under this Act to be in same 2. Every person appointed a judge under the authority of this Act shall hold office upon and be subject to the same terms and position as if ap- conditions and shall possess the same powers and jurisdiction as a puisne judge appointed under the said first recited Act. pointed under recited Act. One or more may sit in banco. the court may sit 3. It shall be lawful for any single judge of the said court judge or judges whether heretofore appointed or hereafter to be appointed or for any two or more of such judges to sit in banco either in term or in vacaSingle judge and tion as occasion may require; and also for any two or more of such simultaneously judges to sit simultaneously in different courts in Melbourne or on circuit for the conduct and despatch of the business of the court in its various departments of law either in banco or at nisi prius in equity or insolvency ecclesiastical or criminal matters or in chambers as circumstances may demand; and every judgment rule decree decretal or other order so given or made shall have the like effect as if like judgments rules decrees decretals or other orders had been given or made by separate courts having similar jurisdiction. 11 Geo. IV. & 1 Will. IV. c. 70. Power of one 4. It shall be lawful for any one judge sitting in equity to hear judge in equity and determine any suit or matter depending in the said court in its equitable insolvency or ecclesiastical jurisdiction"); and every decree decretal or other order made by such judge shall, unless appealed against as hereinafter provided, be as valid effectual and binding as if made by any two or more of such judges sitting in the said court in banco. (a) A single judge sitting in equity, ecclesiastical, and insolvency business only, has no jurisdiction to make an order in a common law action. -Farie v. Frost, 2 W. & W. (Eq.), 56. A single judge sitting in equity has no jurisdiction to discharge a prisoner from custody, under an attachment for contempt granted by the full court in banco at law.-In re Burton, 3 W. W. & a'B. (Eq.), 8. An appeal will lie from the order of a single judge made in chambers on summons, by way of appeal from the Chief Commissioner's rejection of proof of debt under the " Insolvency Statute 1865."-In re Kingsland, ex parte Warburton, 6 W. W. & a'B. (I. E. & M.), 10; (N.C.), 33. equity judge. 5. Any person feeling aggrieved(a) by any such decree decretal 19 VICTORIA, or other order and being desirous of appealing therefrom, upon No. 13. giving notice within fourteen days next after the same shall have Power of appeal been made of such his desire and upon paying into court the sum of from decision of fifty pounds as security for costs to abide the event of such appeal and delivering at the same time to the opposite party a statement in writing setting forth briefly and distinctly the grounds on which it is intended that such appeal shall be made, shall be entitled to appeal to the court sitting in banco) against such decree decretal or other order; but no proceedings upon such decree decretal or other order shall be stayed pending(e) such appeal except by the order of the court or by one of the judges thereof sitting in chambers on such terms as to costs security or otherwise as the said court or judge may think proper to impose. Provided further that nothing Appeal to Her herein contained shall abridge or affect the right and power of any Privy Council suitor or party so affected by any such decree decretal or other order or saved. such affirmance reversal alteration or variation thereof to appeal to Her Majesty in Her Privy Council) against any such decree decretal or other order so affirmed reversed altered or in part varied. 6&7. [Repealed by 38 Vict. No. 502 s. 1, "Judicature," ante, p. 1146.] (a) There is no appeal on questions of costs, unless ordered out of a fund which is not liable to them, or unless they are ordered against a party who ought not to pay them.-London Chartered Bank v. Lempriere, 4 A.J.R., 136. (b) Notice of "intention" to appeal, without using the word "desire," held sufficient under this section.-Harrison v. Smith, 6 W. W. & a'B. (Eq.), 182. (c) The full court has no jurisdiction to entertain an appeal from the primary judge, unless the £50 deposit be lodged by the appellant, even though he be suing in formâ pauperis.-Merry v. Hawthorn, 6 W. W. & a'B. (Eq.), 329. A cause being before a single judge sitting in equity, and the judge having on the 11th September announced some determination in the cause which the plaintiff regarded as a final decree against him, the plaintiff, on 17th September, gave notice of appeal under this section, complying with the three requisites there described, and particularly, on the same day, paying into court £50 to abide the event of the appeal. But on 24th September, the judge below announced that his final decree was to be taken as delivered on that day; and thereupon the plaintiff gave a fresh notice of an appeal, delivered fresh grounds of appeal, and on the same day paid into court £50, by inducing the officer of the court "to take the £50 theretofore lodged as a lodgment for the new notice, and to alter the date of lodging the same in his book." On motion to strike out the appeal under the second notice, on the ground that the requisites of the Act had not been strictly complied with-Held, that the £50 originally lodged on the 11th September was, in fact, newly lodged on 24th September, and was a fresh payment into court of £50 to abide the event of the second appeal on the same day, with the giving of the second notice, and with the delivering of the second grounds of appeal with Majesty in Her in the Act.- Simpson v. Harvey, 2 V.L.T., 242. When the deposit of £50 required by this section is paid to the clerk by cheque, the cheque is a matter for the clerk alone, and if he chooses to take it the deposit is good.-Harrison v. Smith, 1 A.J.R., 78. (d) An appellate judge should hear an appeal without reference to negotiations for compromise after the decision below. Objections to appeals must be dealt with by the appellate court, not by the primary judge.-Harrison v. Smith, ubi sup. In appeals, it is the practice of the court that the appellant should begin.-Taylor v. Southwood, 1 W. & W. (Eq.), 29. The appeal may be set down for hearing on the notice and statement of grounds of appeal only, and no formal petition or signature of counsel is required. The words "making the decree" are equivalent to "pronouncing the decree," and do not refer to the time when the decree was made up and entered; and the notice of appeal must, therefore, be served within fourteen days from that day.-Hodgkinson v. Courtney, 1 V.L.T., 147. (e) An appeal pending does not stay proceedings in an application for further directions; the order, however, will not be drawn up until the end of the appeal sittings, unless the appeal is previously decided.—Attorney-General v.. Boyd, 3 A.J.R., 127. (f) This section gives the right to appeal to the Privy Council, without an appeal to the full court. Under the Act 15 Vict. No. 10 s. 33, the court must require security for costs in all cases; and under the "Crown Remedies Statute," the Crown is in the same position as the subject as to the right to receive and the obligation to give security for costs.-Davis v. The Queen, 1 V.R. (Eq.), 33; 1 A.J.R., 22. 19 VICTORIA, No. 13. This Act and recited Acts to be construed as one Act. 8. The said recited Acts and this Act shall be read and construed together as one and the same Act except so far as they shall be inconsistent with each other. Preamble. Execution by fi. fa. 15 Vict. No. 10 8. 25. sonalty. 1 & 2 Vict. c. 110 s. 12. An Act to alter and simplify the Practice and mode of Procedure in an Action at Law and for other purposes in relation thereto. [19th March 1856.] WHEREAS it is expedient to assimilate as far as possible the practice of the Supreme Court of the colony of Victoria to the practice of the superior courts of common law at Westminster and to make certain other improvements for the advancement of justice and the better administration of the law: Be it therefore enacted by His Excellency the Governor of Victoria by and with the advice and consent of the Legislative Council thereof as follows: 176. That the twenty-fifth section of an Act of the LieutenantGovernor and Legislative Council of this colony passed in the fifteenth year of the reign of Her present Majesty intituled " An Act to make provision for the better administration of justice in the Seizure of per- colony of Victoria" shall be and the same is hereby repealed: and by virtue of any writ of fieri facias to be sued out of the Supreme Court after the time appointed for the commencement of this Act the sheriff or other officer having the execution thereof may and shall seize and take any money or bank notes and any cheques bills of exchange promissory notes bonds specialties or other securities for money belonging to the person against whose lands and effects such writ of fieri facias shall be sued out; and may and shall pay and deliver to the party suing out such execution any money or |