order, and must be appealed from within twenty- | trial. Yetts v. Foster, 3 C. P. D. 437; 38 L. T. one days. But if no definite issues of fact are 742; 26 W. R. 745—C. A. settled at the commencement of the trial, the finding of fact as well as the judgment on the whole case may be appealed from at any time within a year. Krehl v. Burrell (10 Ch. D. 420) explained. Lowe v. Lowe, 48 L. J., Ch. 383; 10 Ch. D. 432; 40 L. T. 236; 27 W. R. 309-C. A.

Where an action has been tried by a judge without a jury, if the unsuccessful party is dissatisfied with the judgment either on the ground that the judge has misdirected himself as to the law, or that his findings as to the facts are against the weight of evidence, the proper mode of obtaining relief is by appeal to the Court of Appeal, and not by motion for a new trial.Krehl v. Burrell (10 Ch. D. 420) commented on. Potter v. Cotton, 49 L. J., Q. B. 158; 5 Ex. D. 137; 41 L. T. 460; 28 W. R. 160-C. A.

Where an action has been tried by a judge of one of the common law divisions without a jury an appeal lies direct to the Court of Appeal. | It is not proper in such a case to move for a new Pannell v. Nunn, 28 W. R. 940-C. A.

trial.

Motion for New Trial for Rejection of Evidence.]-Where, on a trial in the Chancery Division, the judge has not found a separate verdict on a question of fact, but has decided the case as a whole according to the old practice of the Court of Chancery, a motion for a new trial on the ground of improper rejection of evidence cannot be made, the remedy of the unsuccessful party being by appeal from the order, and the Court of Appeal having power at the hearing of the appeal to admit any evidence which may have been improperly rejected. Krehl v. Burrell (10 Ch. D. 420) distinguished. Dollman v. Jones, 12 Ch. D. 553; 27 W. R. 877-C. A.

Trial with Jury.]-During the trial of an action before a jury the judge was asked by the defendants' counsel to nonsuit the plaintiffs, or to direct a finding for the defendants, upon the ground that no evidence had been given in support of the plaintiffs' case; this the judge refused to do, and the jury found the issue left to them in favour of the plaintiffs. Upon the following day the judge directed judgment to be entered for the plaintiffs, and stated his reasons for holding that there was evidence to support the finding of the jury. The defendants appealed to the Court of Appeal against the judgment directed to be entered-Held, that the appeal would not lie; for the judgment was upon the face of it correct, so long as the finding stood unreversed, and the Court of Appeal has no power, in the first instance, to review the finding of a jury; and the defendants' grounds of complaint being for misdirection, they ought to have applied to the Exchequer Division for a new trial under Ord. XXXIX. r. 1. Yetts v. Foster (infra) followed. Davies v. Felix, 48 L. J., Ex. 3; 4 Ex. D. 32; 39 L. T. 322; 27 W. R. 108-C. A.

When it is desired to appeal to the Court of Appeal against a judge's direction to a jury, the proper mode is to give ordinary notice of appeal from his ruling. Harris, In re, Cheese v. Lovejoy, 2 P. D. 161; 37 L. T. 294; 25 W. R. 453-C. A.

When a judge directs the jury to find a verdict for one of the parties, and gives judgment, the other party cannot appeal to the Court of Appeal, but must apply to the divisional court for a new

When a judge directs a nonsuit, and the facts are disputed, the plaintiff cannot appeal to the Court of Appeal, but must apply to the divisional court for a new trial. Etty v. Wilson, 47 L. J., Ex. 664; 3 Ex. D. 359; 39 L. T. 83-C. A. See also PRACTICE (NEW TRIAL).

Judgment Entered against Finding of Jury.]-At a trial before a judge and jury, the jury found a verdict for the plaintiff upon the claim, and for the defendant upon the counterclaim; upon further consideration the judge thought that there was no evidence which he ought to have left to the jury in support of the plaintiff's claim. and gave judgment for the defendant both upon the claim and counterclaim. The plaintiff having appealed to the Court of Appeal:-Held, that the appeal would not lie, and that the plaintiff's remedy was by motion in the divisional court under Ord. XXXIX. r. 1. Rocke v. McKerrow, 59 L. J., Q. B. 146; 24 Q. B. D. 463; 62 L. T. 556; 38 W. R. 342-C. A. See now 53 & 54 Vict. c. 44, s. 1.

to question the assessment of damages, the Writ of Inquiry.]-If either party wishes motion for a new writ of inquiry must be made to the Court of Appeal under s. 1 of the Judicature Act, 1890. William Radam's Microbe Killer Co. v. Leather, 61 L. J., Q. B. 38 ; [1892] 1 Q. B. 85 ; 65 L. T. 604; 40 W. R. 83—C. A.

h. Election Matters.

Municipal Petition - Leave Given.]-Notwithstanding s. 93, sub-s. 7 of the Municipal Corporations Act, 1882, which enacts that the decision of the High Court upon a petition questioning municipal election shall be final; nevertheless an appeal, if leave be given, lies from a judgment of the Queen's Bench Division upon a petition of that nature to the Court of Appeal, owing to s. 242 of the statute above mentioned, which in effect incorporates the Supreme Court of Judicature Act, 1881, s. 14. whereby in certain cases an appeal is allowed from the High Court of Justice to the Court of Appeal, if special leave be given. Warren, 54 L. J., Q. B. 291; 14 Q. B. D. 548; 53 L. T. 446-C. Á.

Line V.

On a

At an election of members of a county council under the Local Government Act, 1888, the respondent obtained a majority of votes over the petitioner and was declared to be elected. petition claiming the seat on the ground that the respondent, being a woman, was disqualified :Held, that an appeal lies in such case, by special leave, from the divisional court to the Court of Appeal. Beresford-Hope v. Sandhurst (Lady), 58 L. J., Q. B. 316; 23 Q. B. D. 79; 61 L. T. 150; 37 W. R. 548; 53 J. P. 805-C. A.

Petition-Interlocutory Matter.]-From an order of a divisional court upon an interlocutory matter arising in an election petition, an appeal lies to the Court of Appeal. Harmon v. Park, 50 L. J., Q. B. 227; 6 Q. B. D. 323; 44 L. T. 81; 29 W. R. 750; 45 J. P. 436-C. A.

Corrupt Practices.]-There is no appeal from a decision of the High Court under the Corrupt Practices (Municipal Elections) Act, 1872, except by special leave of that court. Unwin v.

McMullen, 60 L. J., Q. B. 400; [1891] 1 Q. B. | under s. 10 of the County Courts Act, 1867 694; 39 W. R. 712; 55 J. P. 582-C. A.

1. Habeas Corpus.

entitled to appeal against an order under sub-s. 4 of s. 24 of the Bankruptcy Act, 1883, committing "Judgment or Order."]-An appeal lies to the him for contempt of court, for wilful failure to Court of Appeal against an order for the issue of a deliver up to the trustee in his bankruptcy writ of habeas corpus, but the order should not be property forming part of his estate. Ashwin, Er set aside unless, in the opinion of the court, there parte, Ashwin, In re, 59 L. J., Q. B. 417; 25 are unquestionably no grounds for its issue. Bar-Q. B. D. 271; 7 Morrell, 175-C. A. nardo v. Ford, 61 L. J., Q. B. 728; [1892] A. C. 326; 1 R. 17; 67 L. T. 1; 41 W. R. 333; 56 J. P. 629-H. L. (E.)

An order that a writ of habeas corpus should issue is an "order" within section 19 of the Judicature Act, 1873, and therefore an appeal lies from such order. The court will not encourage such appeals or lightly interfere with the issue of the writ. Barnardo v. Ford, 61 L. J., Q. B. 728; [1892] A. C. 326; 1 R. 17; 67 L. T. 1; 41 W. R. 333; 56 J. P. 629-H. L. (E.) S. P., Barnardo v. M Hugh, 61 L. J., Q. B. 721; [1891] A. C. 388; 65 L. T. 423; 40 W. R. 97; 55 J. P. 628-H. L. (E.)

Discharge of Prisoner.]-Where a divisional court has granted a habeas corpus, and discharged the prisoner, there is no right of appeal to the Court of Appeal. Sect. 19 of the Judicature Act, 1873, does not apply to such a case. Bell-Cox or Cox v. Hakes, 60 L. J., Q. B. 89; 15 App. Cas. 506; 63 L. T. 392; 39 W. R. 145; 17 Cox, C. C. 158; 54 J. P. 820H. L. (E.)

Attachment for Disobedience.]—An appeal lies to the Court of Appeal against an order for an attachment for disobedience to a writ of habeas corpus. Reg. v. Barnardo (Tye's Case), 58 L. J., Q. B. 553; 23 Q. B. D. 305; 61 L. T. 547; 37 W. R. 789; 54 J. P. 132-C. A.

m. Committal for Contempt. Where a judge has refused to commit for contempt, an appeal lies from such refusal, although where that refusal has been simply an exercise of judicial discretion, the Court of Appeal, while entertaining an appeal, will be slow to alter the (5 Ch. D. 943) must not be treated as laying down a general rule that no appeal lies from a refusal to commit. Jarmain v. Chatterton, 51 L. J., Ch. 471; 20 Ch. D. 493; 30 W. R. 461-C. A.

decision of the court below. Ashworth v. Outram

n. From Orders as to Costs.-See COSTS.

o. In Other Cases.

Suspension of Certificate by Court of Inquiry into Shipping Casualty.]-See post, SHIPPING.

Trial at Bar.]-An appeal lies to the Court of Appeal from any order or judgment made or given by the Queen's Bench Division either during or afterwards with respect to a trial at bar of a civil proceeding, and whether or not the appeal is brought from a decision upon a motion for a new trial on the ground of misdirection or wrongful reception of evidence; but the appeal must be brought on by notice of motion, an ex parte application for a rule nisi to the Court of Appeal being irregular. Att.-Gen. v. Bradlaugh, ante, col. 382.

Rule for Mandamus.]-An appeal lies from a rule for a mandamus. Reg. v. Bishopwearmouth Burial Board, 5 Q. B. D. 67—C. A.

From L.JJ. sitting as Judges in Lunacy.]— An appeal lies to the Court of Appeal from the Lords Justices sitting in Lunacy, where the latter have made an order under section 109 of the Lunacy Act, 1890, dealing with the costs of a lunacy inquiry. Cathcart, In re, 62 L. J., Ch. 320; [1893] 1 Ch. 466; 2 R. 268; 68 L. T. 358; 41 W. R. 277—C. A.

From Judge in Chambers.]-See infra.

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, made without such leave as the latter section 1894. Such an application may, therefore, be A plaintiff moved to commit the defendant for requires in the case of interlocutory appeals. contempt in having sold property of the intestate Boyd v. Bischoffsheim, 64 L. J., Ch. 148; [1895] in the cause in disobedience to an order that she1 Ch. 1; 7 R. 629; 71 L. T. 531; 43 W. R. 36— should deliver up to the receiver all property of the intestate in her hands, but the notice did not ask for restitution of the property. The ViceChancellor refused to commit, and made the costs of the application costs in the action :-Held, that an appeal would not lie from this order. worth v. Outram, 5 Ch. D. 943.

C. A.

From Registrar sitting as Judge.]—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 Ash-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.

A refusal by a judge at chambers to make an order to commit a defendant to prison for default of payment of a judgment debt is a matter within s. 50 of the Judicature Act, 1873, and therefore subject to appeal. Debenham v. Wardroper, 48 L. T. 235; 15 Cox, C. C. 207.

Committal of Bankrupt.]-Sub-s. 2 of s. 104 of the Bankruptcy Act, 1883, provides that "orders in bankruptcy matters shall, at the instance of any person aggrieved, be subject to appeal as follows," and proceeds to specify the courts to which different appeals are to be brought :-Held, that, by virtue of this sub-section, a bankrupt is

Writ of Error.]-An appeal lies to the Court of Appeal from a judgment of the Crown side of the Queen's Bench Division upon a writ of error; and the proceeding is by way of appeal, and not by writ of error. O'Brien v. Reg., 26 L. R., Ir. 451-C. A.

From Compulsory Order to refer.]—An appeal from a compulsory order of reference, made under s. 57 of the Judicature Act, 1873, by a judge,

sitting at nisi prius or assizes, must be brought | Court of Passage is to the Court of Appeal. direct to the Court of Appeal. Hoch v. Boor, Anderson v. Dean, 63 L. J., Q. B. 668; [1894] 2 49 L. J., C. P. 665; 43 L. T. 425—C. A. Q. B. 222; 9 R. 418; 70 L. T. 830; 42 W. R. 472 -C. A.

Trial by Official Referee-No Leave Given.]Where an action has been referred for trial under s. 14 of the Arbitration Act, 1889, an appeal lies to the Court of Appeal, without leave, from a decision of the Queen's Bench Division refusing to order a new trial. Munday v. Norton, 61 L. J., Q. B. 456; [1892] 1 Q. B. 403; 66 L. T. 173; 40 W. R. 355—C. A.

Patent-Certificate of Validity.]-By s. 31 of the Patents, Designs, and Trades Marks Act, 1883, in an action for infringement of a patent, the court or a judge may certify that the validity of the patent came in question :-Held, that such a certificate is not a judgment or order against which an appeal lies to the Court of Appeal under s. 19 of the Judicature Act, 1873. HasRuling of Judge as to Stamp Objection.]-lam Engineering Co. v. Hall, 57 L. J., Q. B. 352; Where a judge, trying an action without a jury, 20 Q. B. D. 491; 59 L. T. 102; 36 W. R. 407rules that the stamp upon any document is suffi- C. A. cient, or that the document does not require a stamp, the decision is final, and no appeal lies to the Court of Appeal by way of application for a nonsuit, or to enter judgment, or for a new trial. Blewitt v. Tritton, 61 L. J., Q. B. 773; [1892] 2 Q. B. 327; 67 L. T. 72; 41 W. R. 36—C. A.

From Refusal to Nonsuit.]-A motion to set aside a judgment refusing to nonsuit must be made to the divisional court, and not to the Court of Appeal. Clarke v. Midland Ry., 44

L. T. 131-C. A.

From Order at Trial depriving of Costs. The plaintiffs, after a trial with a jury, recovered 51. beyond the amount paid into court. The judge at the trial gave judgment for 5l., but without costs. The divisional court reversed this decision as to costs:-Held, that the appeal (if any) from the order of the judge was to the Court of Appeal, cashire and Yorkshire Ry., 50 L. J., Q. B. 318; 7 Q. B. D. 641; 44 L. T. 239; 29 W. R. 580— C. A.

and not to the divisional court. Marsden v. Lan

Taxation on Higher or Lower Scale.]-An appeal will lie from a decision by a judge under rules of the Supreme Court (Costs), August, 1875, Ord. VI. r. 3, as to the taxation of costs on the higher or lower scale; but where he has exercised his discretion the Court of Appeal will not interfere unless he has proceeded on a wrong principle, or made a manifest slip. Terrell, In re, 22 Ch. D. 473; 47 L. T. 588; 31 W. R. 208-C. A.

Judge settling Form of Conveyance.]-In a sale by the court, one of the conditions was that, in case of dispute, the form of the covenants was to be settled by the judge. On disputes arising, the judge settled the covenants :-Held, that the order of a judge settling the form of a conveyance is subject to appeal. Pollock v. Rabbits, 21 Ch. D. 466; 47 L. T. 637; 31 W. R. 150-C. A.

Probate-Non-Contentious Business-Refusal to grant Letters of Administration.]—A person claiming to be a creditor of an intestate applied for letters of administration, having cited the next of kin, who did not appear. The judge refused the grant, holding that the applicant was not a creditor of the intestate. The applicant appealed :-Held, that, whether the application was contentious or non-contentious business, as to which the court gave no opinion, there was under s. 19 of the Judicature Act, 1873, an appeal from the judge's decision to the Court of Appeal. Clook, In re, 15 P. D. 132; 63 L. T. 536–Ċ. A.

Question for Opinion of High Court-Local Government Act, 1888.]-The jurisdiction of the High Court of Justice upon questions submitted to it under s. 29 of the Local Government Act, 1888, is consultative only, and not judicial, and no appeal lies from its decision to the Court of Appeal. Kent County Council, Er parte, 60 L. J., Q. B. 435; [1891] 1 Q. B. 725; 65 L. T. 213; 39 W. R. 465; 55 J. P. 647—C. A.

Motion to vary Minutes.]-The minutes of an order made in the trial of an action as settled by the registrar did not mention certain documents that the plaintiff contended were admitted during the trial. The judge refused to alter the minutes:

Held, that the Court of Appeal would not enterThe tain an appeal from the judge's refusal. proper course is for the plaintiff to appeal from the judgment as it stands, and apply at the hearing for leave to use the documents alleged to have been omitted as evidence on the appeal. James v. Jones, 67 L. T. 584-C. A.

Refusal of Leave to Appeal.]-No appeal lies, either to the Divisional Court from the decision of a judge at chambers, or to the Court of Appeal from the decision of a divisional court, refusing to grant leave to a claimant to appeal under Under Debtors Act.]-The jurisdiction of the rule 26 of Schedule II. of the Housing of the High Court under s. 5 of the Debtors Act, 1869, Working Classes Act, 1890, from the award of the arbitrator. The leave contemplated by the rule has been, by virtue of s. 103 of the Bankruptcy Act, 1883, and orders under it assigned to the is that of the High Court, and can be equally judge in bankruptcy, and the exercise of it dele- granted or refused by the court itself, or by a gated to the bankruptcy registrars. An appeal judge at chambers, who does not grant his own from an order of a registrar, approved by the leave, but that of the High Court, and for the judge in bankrupty, will therefore not lie to the purposes of the statute is the High Court. divisional court, but will be regulated by s. 104 Stevenson, Ex parte, 61 L. J., Q. B. 492; [1892] of the Bankruptcy Act. Genese, Ex parte, Las-1 Q. B. 609; 66 L. T. 544; 40 W. R. 417; 56 cellas, In re, 53 L. J., Q. B. 668; 32 W. R. 794; 1 Morrell, 183-D.

Court of Passage-New Trial.]-An appeal on an application for a new trial from the Liverpool

J. P. 501-C. A.

Decisions of Privy Council.]-No appeal lies to Court of Chancery from decisions either of the Privy Council or the commissioners under the

acts and conventions for indemnifying British | a re-hearing at the Rolls; but the other party subjects from the confiscation of their property having previously appealed from another part of by the French revolutionary government. Hill the decree, the second appeal brought up to the v. Reardon, 2 Sim. & S. 431; 4 L. J. (o.s.), Ch. first. Blackburn v. Jepson, 2 Ves. & B. 359. See 127. But see S. C. 2 Russ. 608, on appeal. this case, 17 Ves. 473, and 3 Swan. 132.

On an appeal from part of a decree, the whole

Liberty to Amend.]-By an order of the Vice-case is open to the respondents. Watts v. Symes, Chancellor of England, the cause was ordered to 1 De G. M. & G. 240 ; 21 L. J., Ch. 713; 16 Jur. stand over, with liberty for the plaintiff to amend 114. his bill by adding parties:-Held, upon a preliminary objection being taken before the Lord Chancellor, that it was competent to the plaintiff to appeal from the above order. Beresford v. Adair (2 Cox, 156) treated as overruled. Davis v. Chanter, 2 Ph. 545; 1 Coop. C. C. 285; 10 Jur. 975. And see S. C., 15 Sim. 93; 10 Jur. 151.

As to Quantum of Damages Assessed by Jury.] -The Court of Appeal will not entertain an appeal from an order of the court below assessing damages, unless it be shown that the court below has acted on a wrong principle in assessing the quantum of damages. Ball v. Ray, 30 L. T. 1; 22 W. R. 283.

Amount Involved.]-An appeal will not be allowed when the amount in dispute is only 17. 158., although it is a representative case, which would govern many others. National Assurance and Investment Society, In re, Cross, In re, 41 L. J., Ch. 341; L. R. 7 Ch. 221; 26 L. T. 53;

20 W. R. 324.

A motion by defendants to expunge evidence for scandal and impertinence was ordered to stand over till the hearing of the cause. At the hearing a decree was made both on the hearing and on the motion, by which substantial relief was given, and the motion was refused, and the evidence sought to be expunged was entered as read. The plaintiff appealed from part of the decree, which was varied by the Lords Justices :-Held, that the whole decree was open to the respondents on the appeal, and on their application the order on the motion was reversed, and the evidence directed to be expunged. Middlemas v. Wilson, 44 L. J., Ch. 476; L. R. 10 Ch. 230; 32 L. T. 105; 23 W. R. 301.

3. PARTIES TO APPEAL.

Appeal by One of several Parties.]-Two of the three trustees of a settlement brought an action to have the trusts administered under the direction of the court. Malins, V.-C., dismissed the action with costs. One of the plaintiffs Order in Excess of Jurisdiction.]—If a court having declined to concur in an appeal, the other acting in assumed exercise of a jurisdiction be- appealed alone. The Court of Appeal held that longing to it, makes an order which, under the such an appeal was regular, and must be allowed particular circumstances of the case, is beyond to proceed; and, being of opinion that a sufficient that jurisdiction, the order must, until it be dis-ground had been shown for asking the direction charged, be treated as a subsisting order, and can only be discharged upon an appeal. Padstow Total Loss and Collision Assurance Association, In re, Bryant, Ex parte, 51 L. J., Ch. 344; 20 Ch. D. 137; 45 L. T. 774; 30 W. R. 326—C. A. Where a limited tribunal takes upon itself to exercise a jurisdiction which does not belong to it, its decision amounts to nothing, and does not create any necessity for an appeal. Att.-Gen. v. Hotham (Lord), i Turn. & R. 219; 3 Russ. 415; 24 R. R. 21.

Order "until further Order "-Application to vary.]-When an order is made under s. 1 of the Infants Custody Act, 1873, on the petition of a mother, giving the custody of an infant child to her "until further order," an application to vary the order by reason of something subsequent to its date should be made, not by way of appeal, but by motion before the judge of first instance. Such a motion can be made by the respondent to the original petition. The provision of s. 1 of the Act, that the application shall be made by the mother by her next friend, applies only to the original petition. Holt, In re, 16 Ch. D. 115;

29 W. R. 341-C. A.

Order to bring Sum into Court.]-An order directing that a sum of money should be brought into court was appealed against :-Held, that the appeal could not be heard while the appellant disobeyed the order by not bringing the money into court. Wood v. Farthing, 8 W. R. 425.

From Part of Decree.]—Appeal to the Lord Chancellor from a part of the decree affirmed on

of the court, a decree for administration of the trusts was made. Beckett v. Attwood, 50 L. J., Ch. 687; 18 Ch. D. 54; 44 L. T. 660; 29 W. R.

796-C. A.

Distinction, where the appeal is by one of several defendants, and the other defendants do not join in it. Tasker v. Small, 1 Coop. C. C. 61, n.

A petition of appeal by some of several complainants against the others of them was allowed. Jopp v. Wood, 2 De G. J. & S. 323.

was made in favour of P.

On a bill by P. against R. and A., who all separately claimed the same property, a decree alone the court being of opinion that R. was On appeal by A. entitled, dismissed the bill against both de 561; 30 L. T. 741 ; 22 W. R. 886. Vaughan v. Halliday, L. R. 9 Ch.

fendants.

is made upon grounds equally applicable to all Although an order upon appeal dismissing bill the defendants, those who do not join in the appeal cannot have the benefit of such order, although it renders the decree useless. Tasker v. Small, C. P. Coop. 255.

defendants, the decree of the court below cannot Where an appeal is brought by one of the be varied, by directing the plaintiff's costs to be paid by another defendant, who does not appear on the appeal. Athenæum Life Insurance Society v. Pooley, 1 Johns. 265; 5 Jur. (N.S.) 129.

Appearance in Court below.]-A person against whom an order is made on his default in appearing may appeal from the order on its merits. Streeter, Ex parte, Morris, In re, 19 Ch. D. 216; 45 L. T. 634; 30 W. R. 127.