and if he thinks it sufficient, the objection that it does not СНАР. ХХ. contain any statement of the grounds of dissatisfaction with the decision, cannot be taken before the court of appeal (x). The notice must be signed by the appellant, his attorney or agent, and it must be served on the registrar, as well as on the successful party, by post, or otherwise (y). If, before such notice of appeal be served upon the registrar, execution has issued, and the amount of the judgment and costs of execution has been paid into the hands of the bailiff, or has been levied and not paid over to the successful party, it must remain in court to abide the order of the court (z). Security.]- The party appealing must within ten days Security give security, to be approved of by the registrar of the court, for the costs of the appeal, and must state to which of the courts of common law at Westminster he intends to appeal (a); and, if he be defendant, for the amount of the judgment, in case the appeal should be dismissed. This security as to the amount of the judgment is not, however, required in any case where the judge of the county court has ordered the party appealing to pay the amount of the judgment into the hands of the registrar of the court, and the same has been paid (b). The security may be either a bond executed by the appellant and two sureties (c), or a deposit of money (d). If the appellant fails to give security, the court will not hear the appeal (e). If, before the appellant has given the required security, execution has issued, the registrar must, upon the appealing party giving security, forthwith send notice thereof, by post or otherwise, to the bailiff, and proceedings on such execution will be forthwith stayed (f). The court of appeal will, if it gives judgment for the appellant, order the money paid in by him as security for costs to be paid out to him (g). For the practice respecting the bond or deposit of money, see Chap. XXI. PART I. Form and de Form and Deposit of Appeal.]—The appeal must be in the form of a case agreed on by both parties, or their posit of appeal. attorneys. If they cannot agree, the judge of the county court, upon being applied to by the parties or their attorneys, must settle the case and sign it (h). The appellant should be careful that the case is so prepared as to raise fully any objection on which he may intend to rely; for both parties are bound by it, and will not be allowed, when before the court of appeal, to travel out of it (i). On the other hand, the respondent should be careful that the case when settled does not contain any ground of appeal, which was not taken before the judge of the county court; since, if an objection appears on the face of the case, it will be considered as evidence that it was raised before the county court; though, probably, if it could be shown that it was not so raised, the court of appeal would refuse to entertain it (k). Where a case was stated at improper length, the Court of Queen's Bench, on reversing the decision, refused to give costs to the appellant (1). The case must be presented to the judge for signature, unless he otherwise orders, at the court held next after twelve clear days from the day on which judgment was pronounced, and must then be signed by the judge, and be sealed with the seal of the court (m). This rule does not limit the right of appeal given by the statute; it is intended only to prevent delay, and to enable the successful party to proceed on the judgment should the appellant not conform to the rule and proceed with his appeal in the course prescribed; and the county court judge is bound to settle and sign the case, although it was first submitted to him at a court held subsequent to that required by the rule (n). Where a judge signed a case, but stated that certain documents ought to be inserted, and that when that was done he would re-sign it, which he afterwards declined to do, it was held that the signing, being only conditional, did not take effect until the documents were inserted, and that the date of their insertion must be taken as the true date of the affixing of the signature (o). There is no provision in the County Court Acts, as to what is to be done, if the judge dies before the case is signed by him. Where this occurred after a judgment for plaintiff, it was held that the defendant was premature in moving for a prohibition, when the plaintiff had taken no step to enforce the judgment (p). When signed and sealed, one copy of the case must be deposited with the registrar, and another sent by the appellant to the successful party, by post or otherwise, within three clear days next after the time of its being signed and sealed. If the appellant does not comply with this, the successful party may proceed on the judgment, unless the judge otherwise orders (q). CHAP. XX. appeal. Transmission to Court of Appeal.]-The appellant must Transmission within three clear days next after the case is signed and to court of sealed transmit two copies thereof, by post or otherwise, to the rule department of the master's office of the court in which the appeal is to be brought. Notice of such transmission must forthwith be given by the appellant to the successful party, by post or otherwise. In default of this the successful party may proceed on the judgment; and, on application to the court, will be entitled to such costs as he may have incurred in consequence of the appellant's proceedings. The respondent may, however, instead of proceeding on such judgment, within twentyeight days from the signing of the case, transmit it in the manner prescribed to the appellant, and give the like notice to him of such transmission (r). The appellant must set down the case for argument (s), and deliver copies of the case to the clerks of the judges who are to hear the appeal, in the same manner and at the same time as paper books are delivered before the argument of a demurrer; namely, four clear days before the day appointed for argument (t). a new trial, notwithstanding the (r) 13 & 14 Vict. c. 61, s. 15, (p) M'Allum v. Cookson, 5 C. B., N. S. 498; S. C., 28 L. J., C. P. 1. In Newton v. Boodle, 3 C. B. 795; S. C., 16 L. J., C. P. 135, the court decided that it was not competent for another judge of the court out of which the record issued to seal a bill of exceptions; but that, where the circumstances warranted it, the party might be allowed to move for r. 16. (s) Reg. Gen., H. T., 16 Vict., r. 15; Cooper v. Stephenson, 16 Jur. 424. (t) Reg. Gen., H. T., 16 Vict., PART I. Neglect to prosecute. Judgment of Neglect to prosecute.]-If after the case has been transmitted the appellant does not prosecute his appeal with due diligence according to the practice of the court of appeal, the party successful in the county court may apply to the judge for leave to proceed on the judgment, and leave for that purpose may be granted accordingly, if the judge thinks fit; and the successful party will also be entitled to such costs as he may have incurred in consequence of the appellant's proceedings, which costs will be added to the judgment (u). Judgment of Court of Appeal.]-The court of appeal court of appeal. having heard the case argued, may order a new trial on such terms as it thinks fit, or may order judgment to be entered for either party, as the case may be, which order is final (x). The court may also order a judgment of nonsuit to be entered (y). Where the case stated by the parties does not confine itself to the asking of particular questions, but sets out the judgment of the judge below, or his summing up to the jury, the court of appeal will give judgment upon the whole case (≈). Entry of. Where a plaint was tried by a jury in the county court who found for the plaintiff, and an appeal was brought on the ground of the improper reception of evidence, it was held that the court above had no power to set aside the verdict, and direct that judgment should be entered for the defendant, but that they should only direct a new trial (a). When the court of appeal has pronounced judgment, either party may deposit the original order of the court of appeal, or an office copy thereof, with the registrar of the county court, and within forty-eight hours from the time of such deposit give notice thereof in writing to the other party, by post or otherwise (b). If the order of the court of appeal is, that judgment shall be entered for either party, then such judgment must be entered accordingly, and the successful party is at liberty to proceed thereupon, as if upon an original judgment of the county court (c). CHAP. XX. Costs.]-The court to which the appeal is made may make such order as to costs as they think proper (d). Costs. The costs of appeal, as a general rule, follow the result (e). The rule is not, however, inflexible (f). Where a new trial was granted upon the ground of misdirection, the Court of Exchequer, following the rule acted upon where a new trial is granted in a superior court, refused to allow costs to the appellant (g). In a more recent case in the Common Pleas, however, the court held that there was no analogy between the granting of a new trial in a superior court for misdirection, and directing a new trial in a county court, and adhered to the rule, that upon appeal costs should be allowed to the successful party (h). Where the judge of a county court ruled a point of law against a plaintiff, with leave to move to set aside the verdict, and the plaintiff, instead of so moving, appealed to a superior court, which decided the point in his favour: it was held that he ought to have his costs of appeal, since he was not bound to try the experiment of going a second time before the same judge who had once expressed an opinion against him (i). Costs of appeal will not be allowed unless the application for them is made at the time the case is disposed of (k). county court. Costs of Proceedings in County Court.]-It has been Costs of proheld in the Common Pleas, that the costs of the proceed- ceedings in ings in the court below are to be dealt with as accessory to the judgment; and that therefore the reversal of the judgment below and order for a new trial reversed an order for costs in the court below (1). (d) 13 & 14 Vict. c. 61, s. 14. (e) Robinson v. Lawrence, 7 Exch. 123; S. C., 2 L. M. & P. 673; 15 Jur. 1087; 21 L. J., Exch. 36. See also Hunt v. Wray, 7 Exch. 125, n. ; S. C., 21 L. J., Exch. 37; Cannon v. Johnson, 21 L. J., Q. B. 164; Gibbon v. Gibbon, 13 C. B. 205; Liedemann v. Schultz, 14 C. B. 38; Robinson v. Lord Vernon, 7 C. B. 231. (f) Mountnoy v. Collier, 1 E. & B. 630. (g) Gee v. The Lancashire and Yorkshire Railway Company, 6 H. & N. 224. (h) Shroeder v. Ward, 13 C. B., N. S. 410; S. C., 32 L. J., C. P. 150. In the judgment of Willes, J., in this (i) Outhwaite v. Hudson, 7 Exch. (k) Taylor v. Great Northern Railway Company, L. R., 1 C. P. 430. (1) Gage v. Collins, L. R., 2 C. P. 381. The Courts of Queen's Bench and Exchequer differed upon a similar question, arising on the 19 & 20 Vict. c. 108, s. 43, p. 406; Whitehead v. Procter, 3 H. & N. 532; Churchward v. Coleman, L. R., 2 Q. B. 18. See post, Chapter XXIII. |