Courts of Notice of appeal. Bail. rule being refused, or, when granted, being discharged or made absolute, as the case may be, or, provided the court in its discretion think fit that an appeal should be allowed; provided, that where the application for a new trial is upon matter of discretion only, as on the ground that the verdict was against the weight of evidence or otherwise, no such appeal shall be allowed. 36. The Court of Error, the Exchequer Chamber, and the House of Lords shall be Courts of Appeal for the purposes of this act. 37. No appeal shall be allowed unless notice thereof be given in writing to the opposite party or his attorney, and to one of the masters of the court, within four days after the decision complained of, or such further time as may be allowed by the court or a judge. 38. Notice of appeal shall be a stay of execution, provided bail to pay the sum recovered and costs, or to pay costs where the appellant was plaintiff below, be given, in like manner and to the same amount as bail in error, within eight days after the decision complained of, or before execution delivered to the sheriff. The appellant, whether plaintiff or defendant, is bound to give bail under this section; in like manner and to the same amount as bail in error: (see C. L. Proc. Act, 1852, 15 & 16 Vict. c. 75, s. 151.) The court appealed to is called by the act the Court of Appeal, to distinguish it from the Court of Error, and so the bail may be termed bail in appeal, to distinguish it from bail in error. The appellant is to be bound with two or more sureties unto the party for whom judgment has been given by recognizance in double the sum recovered and costs where judgment has been glven for the plaintiff, and probably it will be held in double the probable amount of the defendant's costs where the judgment has been given for the defendant. This seems the reasonable interpretation to be given to the words "to the same amount as bail in error." The rules of practice will most likely contain provisions as to the notice of appeal and the mode of putting in and justifying bail (see Chit. Arch. 495, as to putting in and justifying bail in error: Pract. Rules, Hil. T. 1853, r. 81, et seq.) appeal. 39. The appeal hereinbefore mentioned shall Form of be upon a case to be stated by the parties, (and in case of difference, to be settled by the court or a judge of the court appealed from,) in which case shall be set forth so much of the pleadings, evidence, and the ruling or judgment objected to, as may be necessary to raise the question for the decision of the Court of Appeal. granted on 40. When the appeal is from the refusal of Rule nisi the court below to grant a rule to show cause, appeal, how and the Court of Appeal grant such rule, such disposed of. rule shall be argued and disposed of in the Court of Appeal. Court of 41. The Court of Appeal shall give such judg- Judgment, ment as ought to have been given in the court Appeal. below; and all such further proceedings may be taken thereupon as if the judgment had been given by the court in which the record originated. See Chit. Arch. 506, 8th edit. Court of 42. The Court of Appeal shall have power to Powers of adjudge payment of costs, and to order restitution; and they shall have the same powers as costs and the Court of Error in respect of awarding process and otherwise. It is not imperative on the Court of Appeal to grant the costs of appeal. As to restitution, see Chit. Arch. 511, 8th edit. The Court of Error has power to award a repleader or grant a venire de novo (Plead. R. Trin. T. 1853, r. 24); and may give such judgment and award such process as the court from which error is brought ought to have done without regard to the party alleging error: (C. L. Proc. Act, 1852, 15 & 16 Vict. c. 76, s. 157.) otherwise. award of trial de noro. 43. Upon an award of a trial de novo by any Error upon one of the Superior Courts or by the Court of Error, upon matter appearing upon the record, error may at once be brought; and if the judg Payment of costs upon new trial ment in such or any other case be affirmed in error, it shall be lawful for the Court of Error to adjudge costs to the defendant in error. The costs of the proceedings in error are to be taxed and allowed as costs in the cause: (Pract. R. Hil. T. 1853, r. 69; Plead. R. Trin. T. 1853, r. 25.) 44. When a new trial is granted, on the ground that the verdict was against evidence, on matter of the costs of the first trial shall abide the event, unless the court shall otherwise order. fact. Affidavits on This is a modification of r. 54 of the Pract. R. Hil. T. 1853: "If a new trial be granted without any mention of costs, the costs of the first trial shall not be allowed to the successful party, though he succeed on the second." 45. Upon motions founded upon affidavits, it new matter. shall be lawful for either party, with leave of the court or a judge, to make affidavits in answer to the affidavits of the opposite party, upon any new matter arising out of such affidavits, subject to all such rules as shall hereafter be made respecting such affidavits. The power of making affidavits in answer, as given by this section, differs materially from that of re-examination of a witness at a trial. On re-examination at trial any question may be put that is proper to explain the sense and meaning of the expressions used by the witness on cross-examination, if they be doubtful, and also the motive by which the witness was induced to use those expressions; but as the object of reexamination is to explain what is stated on cross-examination, the re-examination is confined to the subject-matter of the cross-examination; whereas the power given by this section to make affidavits in answer, is limited to make affidavits in answer to any new matter arising out of the affidavits of the opposite party. In re-examination, new matter cannot be introduced, so neither in affidavits in answer can "new matter" be introduced, but either party under this section may (by leave) answer new matter in the affidavits of the opposite. party. At present it is difficult to put a clear construction upon what is meant by new matter, for if the affidavits, in answer to those on which a rule is moved, confine themselves within proper bounds, that is, to answering the matters contained in the affidavits, new matter will not be introduced at all: (see Report of Commissioners, Affidavits, Practice, supra p. 31.) This section, however, is expressly "subject to all such rules as shall hereafter be made respecting such affidavits.” The decision of the judge at chambers on applications for leave to answer the affidavits of the opposite party will be subject to review by the court, as in other cases (Chit. Arch. 1442, 8th edit.) court or direct oral witnesses. 46. Upon the hearing of any motion or sum- Power to mons, it shall be lawful for the court or judge, judge to at their or his discretion, and upon such terms examinaas they or he shall think reasonable, from time tions of to time to order such documents as they or he may think fit to be produced, and such witnesses as they or he may think necessary to appear, and be examined vivâ voce, either before such court or judge, or before the master, and upon hearing such evidence, or reading the report of such master, to make such rule or order as may be just. This section enables the court or judge where, from the statements in the affidavits, there is a difficulty in deciding upon the facts in dispute, or where, for the purpose of ascertaining the truth, it is thought necessary, to order the production of documents and vivâ voce examination of witnesses: (see Report of Commissioners, supra, p. 32.) The power to make the order is "upon the hearing of any motion or summons;" this assumes a rule nisi and a summons to have been granted, and such rule nisi and summons to have come on for hearing, when of course the affidavits to be used on both sides are in court, and the power is given to the court to obtain the additional assistance in case the materials before the court are imperfect or unsatisfactory. It is doubtful whether this section extends to other than civil proceedings: the words are upon the hearing of any motion or summons, and the section is not limited like sect. 48 to "civil actions or other civil proceedings." (But see Reg. v. Upton St. Leonards, 10 Q. B. 827.) Proceedings 47. The court or judge may by such rule or before and order, or any subsequent rule or order, command upon such examination. the attendance of the witnesses named therein, for the purpose of being examined, or the production of any writings or other documents to be mentioned in such rule or order; and such rule or order shall be proceeded upon in the same manner, and shall have the same force and effect, as a rule of the court under an act passed in the first year of the reign of his late Majesty King 1 W. 4, c. 22. William the Fourth, intituled An Act to enable Courts of Law to order the Examination of Witnesses upon Interrogatories or otherwise; and it shall be lawful for the court, or judge, or master to adjourn the examination from time to time as occasion may require; and the proceedings upon such examination shall be conducted, and the depositions taken down, as nearly as may be, in the mode now in use with respect to the vivâ voce examination of witnesses under the lastmentioned act. Examination of person who refuses to make an affidavit. See Chit. Arch. 313 et seq, as to the practice under 1 Will. 4, c. 22. 48. Any party to any civil action or other civil proceeding in any of the Superior Courts, requiring the affidavit of a person who refuses to make an affidavit, may apply by summons for an order to such person to appear and be exaamined upon oath before a judge or master, to whom it may be most convenient to refer such examination, as to the matters concerning which he has refused to make an affidavit; and a judge may, if he think fit, make such order for the attendance of such person before the person therein appointed to take such examination, for the purpose of being examined as aforesaid, and for the production of any writings or documents to be mentioned in such order, and may therein impose such terms as to such examination, and . the costs of the application and proceedings thereon, as he shall think just. |