Par. 6. Appeal in special cases. Copy of evidence and Judges' reasons. The whole practice on appeal from an interlocutory order is the same as on appeal from a final order: see notes to preceding paragraphs. 7. Provided also that if in any action, suit, or other proceeding, it shall so happen that no final judgment, decree, order, or sentence can be duly given in consequence of a disagreement of opinion between the Judges of the said Supreme Court, then, and in such case, the final judgment, decree, order, or sentence may be entered pro forma on the petition of any of the parties to the action, suit, or other proceedings, according to the opinion of the Chief Justice, or in his absence, of the senior Puisne Judge of the said Supreme Court: Provided that such judgment, decree, order, or sentence shall be deemed a judgment, decree, order, or sentence of the Court, for the purpose of an appeal against the same, but not for any other purpose. 8. And We do hereby further reserve to Ourself, Our Heirs and Successors, in Our or Their Privy Council, full power and authority, upon the humble petition at any time of any person or persons aggrieved by any judgment or determination of the said Court, to admit his or their appeal therefrom, upon such terms, and upon such securit ies, limitations, restrictions, and regulations, as We or They shall think fit; and to reverse, correct, or vary such judgment or determination, as to Us or Them shall seem meet. When a pauper litigant had been granted leave to appeal here but on the usual terms as to security, he obtained special leave from the Privy Council to appeal in forma pauperis; apparently abandoning the leave obtained here: Ex parte Commis sioners for Railways, (1899) 16 W.N. 38. But a pauper applying direct to the Privy Council for leave to appeal, it was refused, the Privy Council apparently distinguishing between leave to appeal and an application to dispense with security: Comber v. Hogg, (1900) 18 W.N. 117; Hendy v. Jenkins, (1901) 18 W.N. 166. Where leave to appeal has been granted by the Privy Council, the order granting leave must be filed of record in this Court before the officers of the Court can transmit the transcript, &c. : Perpetual Trustee Co. v. a'Beckett (Bensusan's Appeal), (1901) 18 W.N. 186. "Although in every case the subject cannot demand an appeal as a matter of right, yet the Crown may in every case, in its discretion, on petition for that purpose, grant one, and this not merely where it has made no provision on the subject, but where it has, by Charter, restricted the right of appeal to certain cases only. The Charters generally reserve this power in express terms. But it is conceived that such a clause is for abundant caution only, and unnecessary."-Stephen's Practice, ed. 1843-5, p. 27. 9. And it is Our further will and pleasure, that in all cases of appeal allowed by the said Court, or by Us, Our Heirs or Successors, the said Court shall certify and transmit to Us, Our Heirs or Successors, in Our or Their Privy Council, a true and exact copy of all evidence, proceedings, judgments, decrees, and orders, had or made in such cases appealed, so far as the same have relation to the matters of appeal; such copies to be certified under the seal of the said Court; And that the said Court shall also certify and transmit to us, Our Heirs and Successors, in Our or Their Privy Council, a copy of the reasons given by the Judges of such Court, or by any of such Judges, for or against the judgment or determination appealed against, where such reasons shall have been given in writing; and, where such reasons shall have been given orally, Par. 9. then a statement in writing of the reasons given by the Judges of such Court, or by any of such Judges, for or against the judgment or determination appealed against. See par. 2 Orders of 13th June (post). Evidence taken on commission in a proceeding connected with the suit, though not referred to in Court, may be included in the transcript: Bucknell v. Vickery, (1884) 5 N.S.W.R. Eq. 81; 1 W.N. 27. The reasons to be sent are the reasons for the decision of the Court appealed from. Where an appeal was granted from a judgment of the Full Court reversing a decree of the Primary Judge in Equity, the appellant was not allowed to insert in the transcript the reasons given by the Primary Judge for his judgment: Brown v. Patterson, (1883) 4 N.S.W.R. Eq. 1A; Bucknell v. Vickery, (1884) ubi supra ; Stockton Coal Co. v. Fletcher, (1888) 5 W.N. 29. But in McMahon v. Brewer, (1897) 14 W.N. 52, Manning, J., directed the judgment of the Judge of first instance to be printed with the transcript; and said that the Privy Council had directed that that practice should be adopted in future, contrary to Bucknell v. Vickery (supra). 10. And We do further direct and ordain that the said Court shall in all cases of appeal to Us, Our Heirs or Successors conform to and execute or cause to be executed such judgments and orders as we shall think fit to make in the premises in such manner as any original judgment, decree, or decretal order, or other order or rule of the said Court of New South Wales, should or might have been executed. By R. 214 (post) the appellant must within three months after judgment of the Privy Council deliver to the Prothonotary a printed copy of the transcript record and of the cases of the appellant and respondent. The Court has no jurisdiction to alter the order of the Privy Council. Where the costs of the transcript were by the mistake of the English solicitors not included in the order, the Court could not direct payment of the costs: Bucknell v. Vickery, (1878) 1 S.C.R.N.S. Eq. 17. The judgment of the Judicial Committee of the Privy Council is no part of the order. Where the order in general terms directed a new trial, but it appeared from the judgment of the Judicial Committee that on the new trial only one question was to be submitted to the jury, the plaintiff was not allowed to annex a copy of the judg ment to the issue: Hordern v. Commercial Union Assurance Co., (1887) 4 W.N. 64. In the same case on motion to make the order a rule of Court, an application by plaintiff that the judgment should be attached to and made part of the rule was refused; but, semble that the Judge on the trial would be bound to confine the new trial within the limits indicated in the judgment of the Judicial Committee, S.C. (1887) 4 W.N. 100. The Court here should make all orders consequential on the order of the Privy Council: Rodger v. Comptoir d'Escompte, L.R. 3 P.C. 465. Costs ordered to be paid by order of the Privy Council will not be allowed to be paid by set-off of costs on proceedings in the same cause here: Adams v. Young, (1899) 20 N.S.W.R. 169; 15 W.N. 269; although costs on that motion here may be set-off against other costs in the action here: Adams v. Young, (1899) 20 N.S.W.R. 305; 16 W.N. 58. Where an order of the Privy Council fixed a sum as costs of the appeal, this sum was not to be trebled, though otherwise treble costs were recovered: Railton v. Wood, (1890) 7 W.N. 64. An order must be obtained giving leave to file the order of the Privy Council as of record in this Court; and the costs of the motion may be taxed (though not mentioned in the order) as part of the costs of the appeal to the Privy Council: Zobel v. Croudace, (1899) 15 W.N. 239. Par. 2. Transcripts to Transcripts may be CRDER IN COUNCIL (13 June, 1853).* Whereas, &c. [reciting a report from the Judicial Committee of the Privy Council recommending the following Rules.] HER MAJESTY, having taken the said report into consideration, was pleased, by and with the advice of Her Privy Council, to approve thereof, and of the Rules and Regulations set forth therein, in the words following, videlicet: 2. That the Registrar or other proper officer having the custody of records in any Court or special jurisdiction from which an appeal is brought to Her Majesty in Council be directed to send by post, with all possible dispatch, one certified copy of the transcript record in each cause to the Registrar of Her Majesty's Privy Council, Whitehall; And that all such transcripts be registered in the Privy Council Office, with the date of their arrival, the names of the parties, and the date of the sentence appealed from ; And that such transcript be accompanied by a correct and complete index of all the papers, documents, and exhibits in the cause; And that the Registrar of the Court appealed from, or other proper officer of such Court, be directed to omit from such transcript all merely formal documents, provided such omission. be stated and certified in the said index of papers; And that especial care be taken not to allow any document to be set forth more than once in such transcript ; And that no other certified copies of the record be transmitted to agents in England by or on behalf of the parties in the suit; And that the fees and expenses incurred and paid for the preparation of such transcript be stated and certified upon it by the Registrar or other officer preparing the same. (a) (a) See cases cited in note to par. 9 of Orders of 13th Nov., 1850 (ante). Where it was probable that a question would arise between respondents to an appeal in the event of the appellant being successful, evidence admitted only between respondents might be printed in the transcript and not in a separate transcript but at respondent's expense: McMahon v. Brewer, (1897) 14 W.N. 52. 3. That when the record of proceedings or evidence in printed abroad. the cause appealed has been printed or partly printed abroad, the Registrar or other proper officer of the Court from which the appeal is brought shall be bound to send home the same in a printed form, either wholly or so far as the same may have been printed, and that he do certify the same to be correct, on two copies, by signing his name on every printed sheet, and by affixing the seal, if any, of the Court appealed from to these copies, with the sanction of the Court. And that in all cases in which the parties in appeals shall think fit to have the proceedings printed abroad, they shall be at liberty to do so, provided they cause fifty copies of the same *From Gazette of 22nd November 1853. to be printed in folio, and transmitted, at their expense, to the Registrar of the Privy Council, two of which printed copies shall be certified as above by the officers of the Court appealed from; and in this case no further expense for copying or printing the record will be incurred or allowed in England. See Broken Hill Proprietary Co. v. Municipal District of Broken Hill, (1901) 18 W.N. 212. Par. 3. 5. That a certain time be fixed within which it shall be the Transcripts to be printed duty of the Appellant or his agent to make such application for within a certain the printing of the transcript, and that such time be within the time. space of six calendar months from the arrival of the transcript and the registration thereof in all matters brought by appeal from Her Majesty's colonies and plantations east of the Cape of Good Hope or from the territories of the East India Company, and within the space of three months in all matters brought by appeal from any other part of Her Majesty's dominions abroad and that in default of the Appellant or his agent taking effectual steps. for the prosecution of the Appeal within such time or times respectively, the Appeal shall stand dismissed without further order, and that a report of the same be made to the Judicial Committee by the Registrar of the Privy Council at their Lordship's next sitiing. 6. And HER MAJESTY is further pleased to order, and it is hereby ordered, that the foregoing Rules and Regulations be punctually observed, obeyed, and carried into execution in all Appeals or petitions and complaints in the nature of Appeals brought to Her Majesty, or to Her heirs and successors, in Council, from Her Majesty's colonies and plantations abroad, and from the Channel Islands or the Isle of Man, and from the territories of the East India Company, whether the same be from Courts of justice or from special jurisdictions, other than appeals from Her Majesty's Courts of Vice-Admiralty, to which the said rules are not to be applied. Whereof the Judges and officers of Her Majesty's Courts of Justice abroad, and the Judges and officers of the Superior Courts of the East India Company, and all other persons whom it may concern, are to take notice, and govern themselves accordingly. 8. 1. SHERIFF ACT 1900. THIS Act consolidates the whole or parts of the following Acts : 5 Vic. No. 4; 7 Vic. No. 13; 11 Vic. No. 20; 50 Vic. No. 31; TABLE Showing how the sections of Acts consolidated have been dealt with. An Act to consolidate the enactments relating to the office of Sheriff. [Assented to, 22nd September, 1900.] E it enacted by the Queen's Most Excellent Majesty, by and with Legislative Short title and division. Legislative Assembly of New South Wales, in Parliament assembled, and by the authority of the same, as follows: PART I. 1. This Act may be cited as the "Sheriff Act, 1900," and is divided into Parts, as follows:-. PART I.-PRELIMINARY-ss. 1, 2. PART II. THE SHERIFF-ss. 3-9. PART III.-SPECIAL BAILIFFS ss. 10-12. PART IV.-DISTRICT SHERIFFS-SS. 13-17. |