2. BEFORE THAT ACT.

of costs, the matter is not one of “ practice and procedure within the meaning of s. 1, sub-s. 4, of the Supreme Court of Judicature (Procedure) Act, 1894, and an appeal from the order of a judge at chambers lies to the divisional court, and not direct to the Court of Appeal. Jackson, In re, 84 L. J., K. B. 548; [1915] 1 K. B. 371; 112 L. T. 395; 59 S. J. 272; 31 T. L. R. 109-D.

Writ of Attachment-Refusal by Witness to Produce Documents.]-A witness refused to produce certain documents at an examination under the Foreign Tribunals Evidence Act, 1856, whereupon an application was made in chambers for leave to issue a writ of attachment against him. The judge refused to make the order :-Held, that the judge's order was not made in a criminal matter, inasmuch as what was sought to be done by the writ of attachment was to compel the witness to produce the documents, and not merely to punish him, and therefore that an appeal lay from the judge's decision. Eccles v. Louisville and Nashville Railroad Co., 56 S. J. 74; 28 T. L. R. 36-D.

An order of a judge at chambers under s. 41 of the Regulation of Railways Act, 1868, for the trial in the High Court of a question of compensation in respect of lands falling within the operation of that section, is not a matter of practice and procedure within the meaning of s. 1, sub-s. 4, of the Supreme Court of Judicature (Procedure) Act. 1894, and an appeal from such an order lies to a divisional court under Ord. LIV. r. 23 of the Rules of the Supreme Court. Long v. Great Northern and City Railway, 71 L. J., K. B. 598; [1902} 1 K. B. 813; 86 L. T. 440; 50 W. R. 402; 18 T. L. R. 478-C. A.

An appeal from an order of a judge at chambers upon an application for a writ of prohibition to a county court is to a divisional court of the Queen's Bench Division. Watson

v. Petts (No. 1), 67 L. J., Q. B. 970; [1899] 1 Q. B. 54; 79 L. T. 330; 47 W. R. 68; 15 T. L. R. 31-C. A.

Power of Judge to refer Summons.]—On the hearing of any summons at chambers, with regard to which the appeal, under the Judicature Act, 1894, s. 1, lies direct from the judge to the Court of Appeal, the proper practice is for the judge either to make an order on the summons or to refuse to make any order, giving leave to appeal, if necessary, where he thinks fit to do so. He cannot refer the summons either to the Court of Appeal or to the divisional court. Hood-Barrs Cathcart, 64 L. J., Q. B. 352; [1895] 1 Q. B. 597, n.; 14 R. 224, n.; 72 L. T. 184; 43 W. R. 309-C. A.

V.

The transfer of appeals from a judge at chambers in matters of practice and procedure to the Court of Appeal instead of to a divisional court has taken away the power of the judge to refer matters to the divisional court, and does not empower him to refer them directly to the Court of Appeal: he should now in every case himself make or refuse the order asked for. Roberts V. Plant, 64 L. J., Q. B. 347; [1895] 1 Q. B. 597; 14 R. 222; 72 L. T. 181; 43 W. R. 308-C. A.

(a) In Chancery Division.

Chancery Division-Motion to Discharge Order in Chambers.]-A judge of the Chancery Division has still jurisdiction to hear a motion to discharge an order made on a procedure summons in chambers, notwithstanding the Judicature Act, 1894, s. 1 (4) :— Semble, such application should be discouraged. Boake v. Stevenson, 64 L. J., Ch. 261; [1895] 1 Ch. 358; 13 R. 171; 71 L. T. 722; 43 W. R. 189.

Refusal of Judge to Order Petition to be Taken off File.]-An appeal from the refusal of a judge at chambers to order a petition to be taken off the file lies to the divisional court. Pope v. Bruton, 17 T. L. R. 182-D.

66

From Vacation Judge of Court of Appeal.] -An application, under s. 52 of the Judicature Act, 1873, to discharge or vary an interim order made during vacation by a single judge of the Court of Appeal, is not an appeal within the meaning of s. 1, sub-s. 1 (b), of the Supreme Court of Judicature (Procedure) Act, 1894. Such an application may, therefore, be made without such leave as the latter section requires in the case of interlocutory appeals: Boyd v. Bischoffsheim, 64 L. J., Ch. 148; [1895] 1 Ch. 1; 7 R. 629; 71 L. T. 531; 43 W. R. 36-C. A.

2. BEFORE THAT ACT.

a. In Chancery Division.

To Judge in Court or to Court of Appeal.] -Where a judge in chambers hears full arguments, an appeal lies to the Court of Appeal, though the judge has not certified that he requires no further argument. Strong v. Carlyle Press, 62 L. J., Ch. 541; [1893] 1 Ch. 268; 2 R. 283; 68 L. T. 396; 41 W. R. 404-C. A.

It is the practice to adjourn summonses into court for argument or judgment in cases in which an appeal is desired. If there is no such adjournment, the proper course, so far as any application to the court below is concerned, is for a party wishing to appeal to move in court to discharge the order made in chambers, not to apply to the court below for leave to appeal direct to the Court of Appeal. Holloway v. Cheston, 51 L. J., Ch. 208; 19 Ch. D. 516; 30 W. R. 120. But see next case.

Where, on a summons heard in chambers, an order has been made by the judge, and not adjourned into court, and there is a desire to appeal against it, the proper course is not to move in court, on notice, to discharge the order, or for a certificate that the judge does not desire it to be re-heard, but to make an application in chambers. Holloway v. Cheston, supra, not followed. Butler's Wharf Co., In re, Anderson v. Butler's Wharf Co., 51 L. J., Ch. 694; 21 Ch. D. 131; 30 W. R. 723.

When a case has been heard by a judge in chambers in the Chancery Division, and parties desire to appeal to the Court of Appeal without another argument before the judge in court, it is a proper and convenient practice for the judge to refuse leave to go straight to the Court of Appeal, and to insist on an argument in court, as the Court of Appeal, after hearing in court, has the benefit of

Time for.]-A summons to vary the chief clerk's certificate was adjourned into court and directed to come on with the hearing of the cause on further consideration. At the hear

ing on further consideration an order was made refusing to vary the certificate and disposing of the cause-Held, that the refusal to vary the certificate was distinct from the order on further consideration, and being an interlocutory order could not be appealed from after twenty-one days from the making of it. Cummins v. Herron, 46 L. J., Ch. 423; 4 Ch. D. 787; 36 L. T. 41; 25 W. R. 325.

a

The rules which relate to appeals to the Court of Appeal do not relate to motions to discharge orders made in chambers, and the court will not act by analogy and give a party moving to discharge a final order made in chambers the same time-one year-as person would have to appeal from a final order made in court, to the Court of Appeal. No longer time will be given in the case of a final than in that of an interlocutory order in chambers. An order on further consideration made in chambers which does not wind up the action, and gives liberty to apply, is not a final order. Johnson, In re, Manchester and Liver

pool Banking Co. v. Beales, 59 L. J., Ch. 99;

42 Ch. D. 505; 61 L. T. 160; 37 W. R. 765.

A motion to discharge or vary a final order made in chambers, must be brought within twenty-one days. Johnson, In re (42 Ch. D. 505), approved. Giles, In re, Real and Personal Advance Co. v. Michell, 59 L. J., Ch. 226; 43 Ch. D. 391; 62 L. T. 375; 38 W. R. 273-C. A.

In an action to set aside a contract for fraud, on June 23, the judge made an order in chambers, upon a summons taken out by the defendants. The order was not drawn up, passed and entered, until July. 14. On July 18, the plaintiff gave notice of a motion in court to discharge the order. The judge refused the motion, on the ground that it was his invariable rule that notices of motion to discharge orders made in his chambers must be given within twenty-one days from the date of pronouncing the order, and not from the date of its being perfected, whether the order was a simple refusal of an application or

not.

Section 50 of the Judicature Act, 1873, provides that orders made by a judge in chambers (except the discretionary orders mentioned in s. 49) may be set aside or discharged upon notice by any divisional court, or by the judge sitting in court, according to the course and practice of the division of the High Court to which the particular cause or matter in which such order is made may be assigned." There did not appear to be any settled practice of the Chancery Division as to the time within which such appeals from the judge in chambers to the judge in court should be brought :-Held, that following the analogy of Ord. LVIII. r. 15, the limit of time for applying to a judge in court to discharge an order made by him in chambers is twenty-one days from the date of pronouncing the order in the case of a simple refusal, and, in other cases, twenty-one days from the date of the perfecting of the

VOL. I.

order. Heatly v. Newton, 51 L. J., Ch. 225; 19 Ch. D. 326; 45 L. T. 455; 30 W. R. 72— C. A.

Ord. LVIII. r. 15, limiting the time for bringing appeals, does not apply to the time for making motions before a divisional court or a judge in court to discharge an order in chambers; but in the Chancery Division the practice is that no such motion shall be made without special leave after twenty-one days. Dickson v. Harrison, 47 L. J., Ch. 761; 9 Ch. D. 243; 38 L. T. 794; 26 W. R. 730C. A.

In an administration action by next of kin against administratrix, the conduct of which had been given to a creditor, an order was made, on the application of the administratrix, by the judge in chambers, directing the taxation of the costs of the plaintiff, the defendant, and the creditor, and the application of the funds in court in payment of a debt and then pro tanto of the costs when taxed, priority being given to the costs of the defendant. Liberty was also given to any of the parties to apply in chambers as to the getting in of an outstanding asset, and generally :-Held, that this was an interlocutory order, and that a the expiration of twenty-one days, was too late. notice of motion in court to vary it, given after

Lewis, In re, Lewis v. Williams, 31 Ch. D. 623; 54 L. T. 198; 34 W. R. 410-C. A.

Where a motion was made to discharge an order made in chambers more than twenty-one days after such order had been pronounced,

the court held that the motion was made too late, and refused it with costs. Hardwidge, In re, 52 L. T. 40.

Where a summons, taken out on March 25, was heard on June 30, when the chief clerk clerk refused an application to adjourn it into made no order, and on October 23 the chief court on the ground of lapse of time; on summons on October 29, for the opinion of the judge upon the chief clerk's refusal to make an order upon the summons of March 25 :-Held, that though no time was limited for an adjournment into court by s. 50 of the Judicature Act, 1873, the court would not hesitate to act by analogy, and the application being in the nature of an appeal from the summons of March 25, should have been made within twenty-one days from the hearing of that summons. Norwich Equitable Fire Insurance Co., In re, Brasnett's Case, 51 L. T. 620; 33 W. R. 270.

Appeal to Court of Appeal from Refusal.]-Where a party moved to discharge a final order made in chambers after the expiration of twenty-one days, and the judge refused to hear it because it was too late, quære, whether the motion was made within the terms of the 50th section of the Judicature Act, 1873, so as to give the party a right to appeal. Giles, In re, Real and Personal Advance Co. v. Michell, supra.

Further Evidence.]-Where a summons has been heard by a judge personally in chambers, and he has given his decision upon it, further evidence, which was not before his lordship in chambers, will not be received without leave upon a motion in court to discharge the order

22

made in chambers. Trible, 59 L. T. 887.

b. In Queen's Bench Division. Order under Law of Libel Amendment Act, 1888.] An order of a judge at chambers made on an application under s. 8 of the Law of Libel Amendment Act, 1888, is a decision in a criminal cause or matter," and no appeal lies therefrom to the divisional court. Pulbrook, Ex p., 61 L. J., Q. B. 91; [1892] 1 Q. B. 86; 66 L. T. 159; 40 W. R. 175; 17 Cox, C. C. 464; 56 J. P. 293.

Time for]. An order having been made in chambers on June 20, the defendant, on the 24th, gave notice of appeal to a divisional court for Saturday, the 28th. The court sat on the 26th to hear motions, and was sitting on the 28th, but not for the purpose of hearing motions. The defendant brought forward his motion on the 30th, being the next day on which the court sat to hear motions :-Held, that the appeal motion was out of time, since a court to which an application to enlarge the time could be made had been sitting within the eight days. Stirling v. Du Barry, 5 Q. B. D. 65; 28 W. R. 405-C. A.

When notice of motion of appeal from a decision in chambers was given on the eighth day after the decision -Held, that under Ord. LIV. r. 6, it was too late, as the notice must be given so that the motion can be heard within eight days after the decision appealed against. For v. Wallis, 2 C. P. D. 45; 35 L. T. 690; 25 W. R. 287-C. A.

By Ord. LIV. r. 6, appeals from chambers shall be by motion, and shall be made within eight days after the decision appealed against. It is not a sufficient compliance with this rule to give notice of motion within eight days. Deykin v. Coleman, 36 L. T. 195; 25 W. R. 294-C. A.

A judge at chambers having made an order on August 29, the party affected by such order moved the divisional court to rescind it during the Michaelmas sittings within eight days from the commencement of such sittings :Held, that the application was too late, inasmuch as by Ord. LIV. r. 6, an appeal from a judge at chambers must be within eight days from the decision appealed against. Crom. v. Samuels, 46 L. J., C. P. 1; 2 C. P. D. 21; 35 L. T. 423; 25 W. R. 45.

When an appellant from chambers has only the eighth and last day whereon to move, and it happens that no divisional court sits on that day, the right of appeal is not lost, but the appellant must move the next practical court. Forrest v. Davis, 26 W. R. 534.

Order made during Vacation.]-On an appeal from the decision of a judge at chambers given in vacation, two clear days' notice of motion must be given within five

days, and for a day within eight days, after the decision although no divisional court sits within the eight days. Steedman v. Hakim, 58 L. J., Q. B. 57; 22 Q. B. D. 16; 37 W. R. 208-C. A. Affirming, 59 L. T. 607. S. P., Hobbs v. Mead, 53 J. P. 40.

Ord. LIV. r. 6 (as amended R. March, 1879, r. 8), which directs that an appeal from a decision at chambers shall be made within eight days, applies to decisions at chambers during the long vacation; and if that period has elapsed without the sitting of a divisional court, the right to appeal is lost, unless the party decided against obtains an extension of time. An order empowering the plaintiff to sign judgment upon a specially indorsed writ, was made by a judge at chambers upon August 29; the time for appealing to a divisional court was on September 2, extending conditionally upon payment into court of the sum sued for within fourteen days. This condition was never fulfilled, and no divisional court sat during the long vacation. Upon the first day of Michaelmas sittings, the defendant moved the Exchequer Division to set aside the order made upon August 29 :-Held, since the order was made, no appeal could lie. that as more than eight days had elapsed Runtz v. Sheffield, 48 L. J., Ex. 385; 4 Ex. D. 150; 40 L. T. 539—C. A.

Delay in Drawing up Order.]—In appealing from the decision of a judge sitting at chambers it is not necessary to wait until the order has been drawn up by the party succeeding before the judge. If the order is not drawn up within the time limited for appealing and the party desirous of appealing waits until such order is served upon him, and is thereby out of time, the court will not extend the time for serving notice of appeal. Watson v. Hope,. 53 J. P. 311.

Calculation Sunday.]-In calculating the time within which to serve notice of motion by way of appeal from an order of a judge at chambers, Sundays cannot be excluded; so that when the last day on which notice of motion could be served was a Sunday, and notice of motion was not given until the Monday, it was held that the notice was out of time. Chambon v. Heighwey, 54 J. P. 520.

When the last of the eight days, limited by Ord. LIV. r. 6, for appealing from a decision at chambers expires on a Sunday, the appellant has the following Monday for appealing. Taylor v. Jones, 45 L. J., C. P. 110; 34 L. T. 131.

See TIME.

Extension of Time.]-By one of the general orders of the Judicature Act, 1875, eight days only are given for an appeal to the divisional court against an order made by a judge at chambers-Held, that that limitation of time does not affect the right to appeal against an order made in vacation at chambers, when no divisional court would be sitting within the eight days. The time for appealing against such an order ought, almost as a matter of course, to be enlarged. Wallingford v. Mutual Society, 50 L. J., Q. B. 49; 5 App. Cas. 685; 43 L. T. 258; 29 W. R. 81-H.ˇL. (E.).

Where an order had been made at chambers, and the eight days had, under such circumstances, expired without an appeal to the divisional court, the fact that an execution had in the meantime issued, makes no difference in the matter. Ib.

Under Ord. VII. r. 6, the court or a judge has power to enlarge the time for appealing against an order in chambers, notwithstanding that the time for appealing has elapsed, and that the action stands dismissed under the order. Carter v. Stubbs, 50 L. J., Q. B. 161; 6 Q. B. D. 116; 43 L. T. 746; 29 W. R. 132— C. A.

What Orders are before Court of Appeal.] -An order at chambers was made refusing leave to defend, except on terms, the time for performing which was allowed by the defendant to expire, and another order at chambers was afterwards made refusing leave to enlarge the time within which the first order might be contested. An appeal was then taken to the divisional court against the second order, when that court desired that the notice of motion should be considered as amended so as to include the first order :-Held, that the two orders were thus brought fully before the court, and the judgment then given must be taken as applicable to both of them. Wallingford v. Mutual Society, 50 L. J., Q. B. 49; 5 App. Cas. 685; 43 L. T. 258; 29 W. R. 81-H. L. (E.).

For the same reason, in an appeal against that judgment, the Court of Appeal must be considered to have had both the orders brought under its revision, and on an appeal to the House of Lords both the orders and both the judgments were brought into discussion. Ib.

Fresh Affidavit.]-The divisional court on an appeal from chambers will, as a matter of convenience, allow a new affidavit made since the date of the order at chambers to be read. Robinson v. Bradshaw, 32 W. R. 95.

Costs.]-Costs follow a reversal of & decision of a judge at chambers. Friend v. L. C. & D. Ry., 25 W. R. 735-C. A.

o. In Probate and Admiralty Division, Order of Registrar Reviewed by Judge in Chambers.]—An order made by a registrar sitting as judge under Ord. LIV. is not, for the purposes of the Judicature Act, 1873, s. 50, an order made by a judge in chambers, and hence, where such an order has been reviewed by a judge in court, an appeal from the judge's decision will lie without special leave. The Vivar, 2 P. D. 29; 35 L. T. 782; 25 W. R. 453-C. A.

Leave to Appeal to Court of Appeal.]-The practice with reference to appealing from orders in chambers in the Probate Division is the same as that which is followed in the Chancery Division-namely, that special leave must be obtained from the judge, which leave is signified by a certificate from the judge that he does not require to hear any further argument in the case. Smith, In re, Rigg v. Hughes, 53 L. J., P. 62; 9 P. D. 68; 50 L. T. 293; 32 W. R. 355-C. A.

F. TO JUDGE. From Official Referee Interlocutory Matter.]-An official referee, to whom an action is referred for trial, has jurisdiction to make an order granting a commission to examine witnesses abroad, and a judge at chambers has jurisdiction to review the decision of an official referee granting or refusing such an order. Hayward v. Mutual Reserve Association, [1891] 2 Q. B. 236; 65 L. T. 491; 39 W. R. 624.

Sheriff's Costs.-Taxation-Review of.]-A taxation of sheriff's costs and charges by a Master of the Supreme Court or district registrar of the High Court, under the general order as to fees of August 31, 1888, made in pursuance of the Sheriffs Act, 1887, is not the subject of review under the provision of Ord. LXV. r. 27 (39-41) of the Rules of the Supreme Court. Such taxation is a mere calculation of amount, and, per se, fixes no liability on the person assessed. Townend v. Yorkshire (Sheriff), 59 L. J., Q. B. 156; 24 Q. B. D. 621; 62 L. T. 402; 38 W. R. 381; 54 J. P. 598.

Interpleader-Summary Decision-Leave.] -An appeal lies to a judge at chambers from the summary decision by a Master disposing of the merits of the claims in an interpleader where special leave to appeal has been given by such Master. Webb v. Shaw, 55 L. J., Q. B. 249; 16 Q. B. D. 658; 54 L. T. 216; 34 W. R. 415.

Quære, whether an appeal does not lie without leave to a judge at chambers, under Ord. LIV. r. 21, from every order or decision of a Master at chambers, including a decision in an interpleader proceeding by a Master in a summary way under Ord. LVII. r. Bryant v. Reading, 55 L. J., Q. B. 253; 17 Q. B. D. 128; 54 L. T. 524; 34 W. R. 496C. A.

8.

Upon the true construction of Ord. LIV. rr. 12 and 21, and Ord. LVII. rr. 8 and 11, an appeal lies from a summary decision of a Master in an interpleader proceeding to a judge at chambers. Clench v. Dooley, 56 L. T. 122.

Appeal for Costs.]-The enactment in s. 49 of the Judicature Act, 1873, that no order by the High Court, or any judge thereof, as to costs only which by law are left to the discretion of the court, shall be subject to any appeal, does not apply to the order of a Master or district registrar, and therefore a judge of such court has power to vary as to costs an order of a district registrar dismissing the action without costs. Foster v. Edwards, 48 L. J., Q. B. 767.

Time for Appealing.]-In order that an appeal from a Master to a judge at chambers may be in time, according to Ord. LIV. r. 4, it is not sufficient that the appeal summons should be taken out within four days from the Master's decision, but it must be heard or adjourned within the four days. Bell v. North Staffordshire Ry., 48 L. J., Q. B. 518; 4 Q. B. D. 205; 27 W. R. 263.

Extension of Time for Appeal.] Within four days from the decision of a Master at chambers, an appeal summons was taken out and made returnable at a date after the