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involving only an issue of fact refused. Canada fact of the public importance of the question at
Central Railway Company v. Murray, 8 App.
By an order in council of the 10th of May,
1860, provision is made for a direct appeal from
judgments, decrees, or orders of the Supreme
Court at New Zealand to the Queen. That
court refused to allow an appeal from an order
made before the date of that order in council, on
the ground that it was not retrospective in its
operation. Upon petition, special leave to appeal
was granted. Bunny, In re, 15 Moore, P. C. C.
The committee will not grant leave to appeal
to a party who resists a claim, not on the ground
of the merits of his case, but on the ground of a
mere formal defect in procedure on the part of
the claimant. Kennington, Ex parte, 8 Jur.,
Criminal Cases.—-Special Leave to Appeal.]
An order of court directing a defendant to
plead to an information (or other analogous
proceeding) for libel, and directing that having
pleaded he should be tried without a jury, is not
à definitive sentence within the meaning of the
Order in Council of 13th May, 1572. Special
leave to appeal therefrom refused. Quære, as to
granting special leave to appeal in criminal
cases in Jersey, or where there has been no defi-
nitive sentence. Esnouf v. Jersey (Attorney-
General), 8 App. Cas. 304; 52 L. J., P. C. 26 ;
On a petition by the attorney-general of New
South Wales for special leave to appeal from an
Sum involved being below the appealable
Amount.]-Special leave to appeal (the sum in-
volved being below the appealable amount)
allowed, on the ground that the question in-
volved the construction of a colonial act which
affected the interests of a large class in the
colony for which the act was passed, and in
granting the leave the committee limited the
appeal to the construction_of_the_colonial act.
Brown v. M'Laughan, 3 L. R., P. C. 458; 7
Their lordships will not advise her Majesty to
admit an appeal from the Supreme Court of the
Dominion save where the case is of gravity,
involving matter of public interest or some
important question of law, or affecting property
of considerable amount, or where the case is
otherwise of some public importance or of a very
substantial character. Petition for special leave
to appeal refused, the case depending on a dis-
puted matter of fact whether there had been a
gift or sale of certain goods of the value of 1,000l.
Prince v. Gagnon, 8 App. Cas. 103-P. C.
Where, although the subject in dispute was
under the appealable value prescribed by the
issue, allowed an appeal. Lindo v. Barrett, 9
Moore, P. C. C. 456 ; S. P., Wilson v. Callender,
Special leave to appeal granted, although the
subject-matter in the suit was under the appeal-
able value, as the decision was to govern other
suits. Ko Khine v. Snadden, 2 L. R., P. C. 50 ;
37 L. J., P. C. 119; 5 Moore, P. C. C., N. S. 67.
So, under circumstances shewing a question
of importance, and that the sum involved was
uncertain in value, leave was given to appeal,
although the amount of the verdict was under
the appealable value limited by the order in
council. St. George, Jamaica (Churchwardens)
v. May, 12 Moore, P. C. C. 282.
In an action for non-performance of a contract,
a verdict was given for 6001. currency (under
5007. sterling), and the court in Canada refused
leave to appeal to England, on the ground that
the sum was under the appealable value. Upon
a special petition for leave to appeal, such leave
was granted, because important questions of
mercantile law were raised, and an action of a
similar nature was pending, the transaction being
a continuing contract. Boswell v. Kilborn, 12
The judicial committee declined to advise the
exercise of her Majesty's prerogative to allow an
appeal in a case where the amount at issue was
only $300, and where the issue between the
parties related simply to the legal construction
and effect of a particular contract, and where
no general principle was involved, and no other
cases were necessarily affected by the decision
complained of. St. Andrew's Church, Montreal,
v. Johnston, 3 App. Cas. 159; 37 L. T. 556; 26
Petition, Contents of.]-Upon a petition for
leave to appeal, it is the duty of the petitioner
to state in the fullest and frankest manner all
the circumstances of the case. Lyall v. Jardine,
3 L. R., P. C. 318; 39 L. J., P. C. 43; 22 L. T.
The petition must state fully but succinctly
the grounds upon which it is based; the record
Railway Co. v. Murray, 8 App. Cas. 574—P. C.
Mis-statement of Facts in Petition.]-When
ing, however, that there was in this case no
intention to mislead, the appeal was heard and
allowed, but without costs. Ram Sabuk Bose
v. Monomohini Dossee (2 L. R., Ind. App. 81)
approved. Mussoorie Bank v. Raynor, 7 App.
Cas. 321; 51 L. J., P. C. 72; 46 L. T. 633; 31
Special leave to appeal having been given on
an ex parte application, and upon an erroneous
statement contained in the petition for leave;
the order allowing such leave discharged with
costs. Bulkeley v. Seutz, 3 L. R., P, Č, 196; 6
Granted on Terms.]—Where the judicial committee of the privy council grants leave to appeal under the general jurisdiction of the Queen in council, it will impose such terms upon the applicant as the special circumstances of the case require. Ghos, In re, 8 Moore, P. C. C. 276. In granting special leave to appeal from a judgment in an action in which damages were awarded, the judicial committee imposed terms on the petitioner, in addition to giving security for costs, to find security for the amount of the damages awarded by the jury, and upon the compliance of such terms, ordered execution of the judgment of the colonial court to be stayed. Stace v. Griffith, 2 L. R., P. C. 420.
Order for leave to appeal granted upon the report of the committee without prejudice to the right of the respondent's shewing cause against such order. Robertson, Ex parte, 11 Moore, P. C. C. 288.
Cause being shewn upon a counter petition, such order rescinded. Ib.
Leave to appeal was given from an order of a court committing the appellant for contempt, but liberty was reserved to the judges of the court to object to the competency of such appeal at the hearing. MDermott, In re, 1 L. R., P. C.
Counter Petition to Dismiss.]-If leave to appeal is obtained ex parte, the respondent may, as a matter of course, present a counter petition to dismiss. Sibuarain Ghose v. Hullodhur Doss, 9 Moore, P. C. C. 354.
When leave to appeal has been unduly given, the proper course is to come to the privy council before any expense has been incurred, and to apply for the dismissal of the appeal. Sauvageau v. Gauthier, 5 L. R., P. C. 494; 30 L. T. 510; 22 W. R. 667.
Such an application, if delayed till the hearing, will only be granted without costs, and if there are special circumstances in favour of granting special leave to appeal, an application for such leave will be entertained; but if it is granted, fresh security for costs must be given. Ib.
An order granting leave to appeal, obtained upon an ex parte application, founded on an allegation that the interest added to the principal recovered in an action on a fire policy exceeded the appealable value, upon petition of the respondents, shewing that the calculation as to value was erroneous, was discharged. Quebec Fire Assurance Company v. Anderson, 13 Moore,
P. C. C. 477.
Appeal contrary to Agreement-Time for raising Objection.]-Where it is alleged that the bringing an appeal is contrary to agreement, the objection ought to be made when leave to appeal is applied for, or to be taken by a petition to the Queen before the appeal comes on for hearing. Pisani v. Att.-Gen. (Gibraltar), 5 L. R., P. C. 517; 30 L. T. 729; 22 W. R. 900.
Rescinding Leave to Appeal.]-Her Majesty in council is not precluded from entertaining a petition to rescind leave to appeal on the ground of want of jurisdiction, by the fact that leave to appeal was granted by a colonial court under the authority of a colonial statute, as the construction put by the colonial court upon the act can be reviewed by the committee. Macfarlane
Effect of Order of the Queen in Council on subordinate Tribunals.]—When a decision of the judicial committee has been reported to her Majesty, and has been sanctioned, it becomes the decree or order of the final court of Appeal; and it is the duty of every subordinate tribunal to whom the order is addressed to carry it into execution. Pitts v. La Fontaine, 6 App. Cas. 482; 50 L. J., P. C. 8; 43 L. T. 519P. C.
Mandamus to Privy Council.]-See MANDA. MUS.
5. PRINCIPLES ON WHICH PRIVY COUNCIL ACTS.
Questions of Fact.]-In a question of fact the judicial committee is reluctant to reverse or disturb the decision of the court below. The Alice and The Princess Alice, 2 L. R., P. C. 245; 38 L. J., Adm. 5; 19 L. T. 678.
As a general rule the appellate court will not reverse a decision of the court below on a mere question of fact; but where there is no conflict of testimony, and the only question of fact is as to the effect of the facts proved in raising further inferences of fact, that rule does not apply. Thurburn v. Steward, 3 L. R., P. C. 478; 40 L. J., P. C. 5; 19 W. R. 678.
As a general rule, the judicial committee will not reverse the concurrent findings of two courts on a question of fact. Hay v. Gordon, 4 L. R., P. C. 337; 21 W. R. 11.
It is not the practice of the committee to disturb the finding of the court below upon mere issues of fact, unless clearly satisfied that there has been some miscarriage, either in the reception, or in the application of evidence. Ghoolam Moortoozah Khan Bahadoor, In re, 9 Moore, Ind. App. 456,
When the question is one of fact only, and has been tried by a jury, the committee will not reverse a judgment upon such finding, un
less satisfied that the judgment is clearly wrong.
On an issue involving a question of fact, tried
P. C. C. 354.
Where evidence is conflicting, the appellate court, in order to advise a reversal of the judg ment appealed from, must not merely doubt whether the judgment appealed from is correct, but must be satisfied that it is wrong. German Lloyd Steam Ship Company v. Elder, North 14 Moore, P. C. C. 241.
On Facts not before Court below.]-The judicial committee will not entertain an appeal upon facts which were known to the appellant at the time of hearing in the court below, but which were not brought to the notice of the court below. Lyall v. Jardine, 3 L. R., P. C. 318; 39 L. J., P. C. 43 ; 22 L. T. 882; 18 W. R.
The judicial committee is unwilling to decide a case upon points which have been raised for the first time at their bar, and which possibly may have been treated as agreed upon or too clear for argument in the court below. Mackay v. Commercial Bank of New Brunswick, 5 L. R., P. C. 394; 43 L. J., P. C. 31; 30 L. T. 180; 22 W. R. 473.
New Trial-When ordered.]-Although the privy council have the right, if they think fit, to order a new trial on any ground, that power will not be exercised merely where the verdict is not altogether satisfactory, but only where the evidence so strongly preponderates against it as to lead to the conclusion that the jury have either wilfully disregarded the evidence or failed to understand or appreciate it. Connecticut Mutual Life Insurance Company of Hertford v. Moore, 6 App. Cas. 644—P. C.
The principles which govern the appellate court in granting a new trial when the verdict of the jury is against the opinion of the judge, explained. Humphrey v. Nowland, 15 Moore,
P. C. C. 343.
The judicial committee is unwilling to send a case down for a new trial upon points which have been raised for the first time at their bar, and which possibly may have been treated as agreed upon, or too clear for argument, in the court below. Mackay v. Commercial Bank of New Brunswick, 5 L. R., P. C. 394; 43 L. J., P. C. 31; 30 L. T. 180; 22 W. R. 473.
At the trial, documents contained in the schedule to the answer of the defendant to a bill of discovery filed in equity were read as evidence for the plaintiff, but the court refused to allow the defendant to read the answer to which the schedule was annexed-Held, that as the Supreme Court at Calcutta, being jurymen as well as judges, had refused to allow the answer to be read, on the ground that such answer contained nothing material to the issue which could influence their verdict, a new trial on the ground of such refusal ought not to be granted. East India Company v. Paul, 7 Moore, P. C. C. 85; 14 Jur, 253,
Matter of Discretion.]-The judicial committee discretion exercised by the court in India, unless is always reluctant to interfere with a matter of it can be shewn that the court has acted upon an erroneous principle. Bank of Hindustan, China and Japan v. Eastern Financial Association, 2 L. R., P. C. 489.
been brought in her Majesty's Consular Court at Nominal Claim for Damages.]—A suit having right, and judgment having been given for the defendant:-Held, that if the plaintiff had a Smyrna to recover damages, and not to try a nominal interest which might be the subject of an action in one of the courts of common law, nominal claim for damages would be no ground that species of nominal interest for the mere reversed. Giraud v. Paterson, 38 L. J., P. C. 56 ; before the judicial committee to recommend that 18 W. R. 359. the judgment of the court below should be
Where Law different to English Law.]-The committee will not, unless there is manifest error in a judgment under appeal, overrule delaw of France prevails, must be known and concisions pronounced in a country in which the tinually acted upon by courts of law, and in which also the witnesses on both sides reside and may have been more or less known to and seen when under examination by the judges or some of them, who likewise are familiar with the usages and customs of the place in which all the circumstances which formed the subject of Moore, P. C. C., N. S. 505; 36 L. J., P. C. 65. the evidence occurred. Scott v. Paquet, 4
mittee will be unwilling to reverse the colonial Question of Procedure.]-The judicial comcourt on a question of procedure. Montreal (Mayor) v. Brown, 2 App. Cas. 168; 35 L. T. 870-P. C.
Pleadings.]-When the rules of pleading in a over British subjects are by petition and answer, court in a foreign country having jurisdiction the several paragraphs of the answer can be read together, and not as in English pleadings treated as separate pleas. Hart v. Gumpach, P. C. 439; 42 L. J., P. C. 25; 21 W. R. 36; 9 Moore, P. C. C., N. S. 241. L. R.,
deciding a case on its merits, without regarding The privy council will exercise its discretion in Lean v. Kay, 5 L. R., P. C. 327; 29 strictly the precise terms of the pleadings. L. T. 352; 21 W. R. 798.
The privy council, though not holding parties to be set up on appeal which have not been sugstrictly to their pleadings, will not allow defences gested in the pleadings, or called to the attention of the courts below. Company v. Mc Lister, 1 App. Cas. 39; 33 L. T. Garden Gully Mining 408; 24 W. R. 744—P. C.
ment of the court below, liberty was given to
directed to abide the event of the
6. PRACTICE RELATING TO. Special leave to Appeal.]-See ante col. 201.
In Forma Pauperis.]—An appeal in formâ pauperis allowed, the appellant, by his petition and affidavit, alleging that he was not worth 57. besides wearing apparel. Brouard v. Dumaresque, 3 Moore, P. C. C. 457.
And sureties for prosecuting the appeal will be dispensed with. Brouard v. Dumaresque, 6 Moore, P. C. C. 412; S. P., Bunny v. Hart, 11 Moore, P. C. C. 189; Lempriere, In re, 1b.
An appellant who had not sued as a pauper in the court below admitted to appeal in formâ pauperis, upon the usual certificate, without giving security for the costs already incurred, and in which she had been condemned by the decree of the court below. Watts v. Beaman, I Moore, P. C. C. 81.
Permission was given to appeal in formâ pauperis in a case in which the appellant was not heard in the court below, and was refused leave to appeal, the decision being in fact ex parte. George v. Reg., 1 L. R., P. C. 389; 4 Moore, P. C. C., N. S. 287.
Semble, that there may be special circumstances in which a guardian may be permitted to prosecute an appeal in formâ pauperis, on the ground of the poverty of his ward, but the court requires an affidavit that the infant cannot get a solvent next friend. Gaudin v. Messeory, 2 Moore, P. C. C., N. S. 372.
Judgment of Court below.]—Reasons given by a judge of a court from which an appeal lies to the privy council ought to be stated publicly at the hearing, and communicated to the registrar of the privy council. Richer v. Voyer, 5 L. R., P. C. 461; 30 L. T. 506; 22 W. R. 849.
The privy council will not look at notes merely communicated to one of the parties. Ib.
Two of the judges in the court below dissented from the other judges, but did not express their reasons in court for disagreeing with the other judges. After an appeal was interposed to England, those judges prepared written judgments, which were transmitted to England, and first known at the hearing, as forming part of the printed record before the Judical Committee. Such course condemned, as the judges' opinions should have been stated publicly at the hearing in the court below, and not have been reserved to influence the decision of the court of appeal. Brown v. Gugy, 2 Moore, P. C. C., N. S. 341.
The council can only look to the record of proceedings transmitted by the court below. It will not receive shorthand writers' notes to impeach the accuracy of the judges' notes taken at the trial, to shew that the evidence set forth in the transcript record was not exhibited, or that evidence had been given which had been omitted in the transcript. Stanford v. Brunette, 14 Moore, P. C. C. 60.
Transcript of Record-Duty of Appellant.] An appellant obtained leave to appeal, but took no steps to procure a transcript of the record to be sent and lodged at the Privy Council office for three years, or any other step. The appeal was dismissed, with costs. Smith v. Cresswell, 10 L. T. 672-P. C.
Notice of Arrival of Record.]-It is no part of the duty of the registrar of the judicial committee to give notice to the parties to an appeal of the arrival of the record of the proceedings in the court below. The parties must examine for themselves at the council office. Moyee v. Roy, 2 L. R., P. C. 274 ; 38 L. J., P. C. 21 ; 20 L. T. 333.
Extension of Time to Appeal.]—The committee has no jurisdiction to entertain an application for extension of time to appeal until the petition of appeal is lodged. Gungadhur Seal v. Dossee, 9 Moore, P. C. C. 411.
Who may Appear.]-Two sets of defendants severed in defence (their interests involving an alternative as to which was responsible to the plaintiff), and the court below fixed one set of the defendants with the liability. Upon an appeal, in which the plaintiff was made sole respondent, the other defendants were held entitled to appear, and to lodge a separate case. East India Company v. Robertson, 12 Moore,
P. C. C. 400.
Printed Case not Lodged.]— Respondents appeared by counsel at the hearing to argue an appeal, without having lodged a printed case. The council refused to hear the appeal until a printed case was lodged. Bengal Government v. Mussumat Shurruffutoonnissa, 8 Moore, Ind. App. 225.
Judgment of Court below not Operative till Confirmed-Effect of.]-Semble, that in cases where the decision of a court below is only operative upon confirmation by a superior court, the judgments will not be considered as two separate judgments. Hay v. Gordon, 4 L. R., P. C. C. 337; 21 W. R. 11.
Security for Costs of Appeal.]-An appeal allowed by a government officer, the nominal defendant under a local colonial act, without giving security for costs of appeal. Robertson v. Dumaresq, 2 Moore, P. C. C., N. S. 66.
The attorney-general of the Isle of Man, as the chief law officer of the crown there, bringing an appeal, is not required to enter into a recognizance to answer the costs of appeal. Att.-Gen. (I.M.) v. Cowley, 12 Moore, P. C. C. 27.
Leave to appeal was granted on an ex parte application upon the terms that a certain sum should be deposited as security for the respondent's costs upon the respondent's petition this sum was increased by the privy council, on account of the length of the transcript of the proceedings. Boswell v.Kilborn, 13 Moore, P. C. C. 476.
By an order of the Supreme Court of Victoria, leave to appeal, pursuant to a colonial act, was allowed on condition of the appellant giving security within three months for costs of appeal.
The appellant at first offered to deposit money Rehearing, when Allowed. J-The rehearing of to the amount of the security required, but after-on appeal heard ex parte, on which an order in wards a security bond was approved by the master council has been made, refused, the default in of the court, and, without objection by the defend- not appearing and contesting the appeal being ant, filed as of record; but in consequence of ob- occasioned by the agents of the respondent, who jections afterwards taken by the defendant's sought to have the appeal reheard. Kisto Nauth solicitors to the competency of the proposed sure- Roy, Ex parte, 2 L. R., P. C. 274; 38 L. J., ties, the bond was not filed within three months. P. C. 21; 20 L. T. 333; 17 W. R. 521. Upon a motion by the defendant to set aside the leave to appeal upon that ground, the Supreme Court made an order revoking the leave given. The Privy Council upon petition gave special leave to appeal, on security being given for costs in England, with liberty for the petitioners to apply to the court at Victoria to cancel the security bond. Webster v. Power, 1 L. R., P. C.
If a respondent delays in making an application to rescind leave to appeal which has been unduly given, at the hearing the committee may give special leave to appeal, but fresh security for costs must be given. Sauvageau v. Gauthier, 5 L. R., P. C. 494; 30 L. T. 510; 22 W. R. 667. Recognizance entered into to abide the determination of an appeal vacated upon petition of the appellant upon the abandonment of the appeal. Reed v. Dabee, 11 Moore, P. C. C. 151.
Objections, what and when may be Raised.] An objection not raised in the court below cannot be taken unless it is patent upon the face of the proceedings, so that the appellate court can take judicial notice of the objection. Derine v. Holloway, 14 Moore, P. C. C. 290.
The committee will not entertain a purely technical objection to a party's right of action, which has not been made in the court below. Bank of Bengal v. Macleod, 7 Moore, P. C. C. 35: 13 Jur. 945; S. P., Bank of Bengal v. Fagan, 7 Moore, P. C. C. 61.
What Points may be Raised on Appeal.]-In a case in which the government of a colony appeared in the name of the nominal defendant, and obtained judgment:-Held, that the right of the plaintiff to appeal against such judgment could not be prejudiced by the objection that the action had not been brought against the right party, such objection not having been taken in the court below. Webb v. Wright, 8 App. Cas. 318; 52 L. J., P. C. 40; 49 L. T. 145— P. C.
Where there is a fatal objection to the right of appeal, the respondent ought to apply to quash the appeal, and not to wait till the hearing to urge such objection to its competency. Tronson v. Dent, 8 Moore, P. C. C. 420.
When a defendant did not apply to the colonial court for a new trial in an action for a libel, but, upon special application for leave, the judicial committee, after hearing counsel on both sides, allowed the appeal on the ground of the judge's misdirection:-Held, that it was too late at the hearing to object, and that the appellant ought to have applied to the court below for a new trial. Stace v. Griffith, 2 L. R., P. C. 420; 6 Moore, P. C. C., N. S. 18; 20 L. T. 197.
It is too late for a respondent at the hearing to take objection that the suit does not involve the prescribed appealable value; such objection not having been taken in his case. The proper course would have been to move in the first instance to dismiss the appeal on that ground. Aldridge v. Cato, 4 L. R., P. C. 313; 20 W, R. 977.
A rehearing will not be allowed except under very special circumstances. Ib.
A petition having been presented for a rehearing of the appeal, before the report of the committee had been confirmed by her Majesty in council, which stated that evidence had been received at the hearing of the appeal which was not called for or produced in the court below, and which the petitioner alleged contradicted the case made by the pleadings on both sides, was dismissed, the committee, without deciding that they were not competent to grant a rehearing, being of opinion that the grounds relied on in the petition did not bring the case within any principle on which such an application could be supported. The Singapore and the Hebe, 1 L R., P. C. 378; 4 Moore, P. C. C., N. S. 271.
Costs General Rules.]-The rule allowing an appellant costs upon a successful appeal, is discretionary with the court, and only to be allowed in special circumstances. Lindo v. Barrett, 9 Moore, P. C. C. 456.
Upon a reversal, the order contained no direction as to costs. Upon petition by the appellant for a supplemental order, allowing costs, the committee refused to interfere. Ib.
To entitle an appellant to costs, an application ought to be made at the hearing. Ib.
When an appeal is dismissed, a verbal modification of the decree of the court below, such modification being consistent with the intention of that court, ought not to relieve the appellant from paying the costs of the appeal. Van Breda v. Silberbauer, 3 L. R., P. C. 84; 39 L. J., P. C. 8; 22 L. T. 667; 18 W. R. 553; 6 Moore, P. C. C., N. S. 319.
When a printed case has been lodged by a respondent, but he does not appear on the hearing, he will, if successful, be allowed his costs down to the lodging of the case, inclusively. O'Shanassy v. Joachim, 1 App. Cas. 82; 34 L. T. 265—P.C.
On reversal of an order of the court below no costs were given, as special leave to appeal was only allowed to decide an abstract question of constitutional law. Speaker of the_Legislative Assembly of Victoria v. Glass, 3 L. R., P. C. 560 ; 40 L. J., P. C. 17; 24 L. T. 37; 20 W. R. 42; 7 Moore, P. C. C., N. S. 499.
Action on Order.]-An action is maintainable in the courts of this country upon an order of the Judicial Committee, directing payment of costs on an appeal from the judgment of a colonial court, on a petition of intervention in a suit by creditors for the attachment of debts and property of their debtor; the decree of the Judicial Committee being final as regarded the petition of intervention, although not necessarily so in the main suit. Hutchinson v. Gillespie, 11 Ex. 798; 25 L. J., Ex. 103; 2 Jur., N. S. 403.
Allowance of Interest.] By an order in council, the judgment of the Supreme Court at