occasioned by his appeal herein [under his notice of appeal, dated the day of, 19-] from the judgment [or order] of [the King's Bench Division of the High Court of Justice], dated the day of 19—, and that until such security be given the said appeal be stayed [and that in default of such security being given within the aforesaid time the said appeal stand dismissed without further order, with costs to be taxed and paid by the to the -]. And that the costs of this application abide the result of the appeal [or that the this application]. pay to the Dated [&c., conclude as in form No. 1, supra]. the costs of 7. Notice of Motion to dismiss Appeal, Security for Costs not having been given, and a reasonable Time having elapsed since Order therefor. [Formal parts as in form No. 1, supra, to the asterisk*] for an order that the plaintiff's [or defendant's] appeal herein [under his notice of appeal, dated the day of, 19] from the judgment [or order] of [the King's Bench Division of the High Court of Justice], dated the day of 19, be dismissed for want of prosecution, the not having given security for costs pursuant to the order of the Court of Appeal, dated day of 19-, and that the the pay to the the costs of the appeal, the costs of the application and order for security for costs, and the costs of this application, to be taxed. Dated [&c., conclude as in form No. 1, supra]. day 8. Notice of Motion to stay Proceedings pending Appeal (g). [Formal parts as in form No. 1, supra, to the asterisk*] for an order that [execution and] all further proceedings on the judgment [or order] of [the King's Bench Division of the High Court of Justice], dated the of —, 19—, may be stayed pending the hearing of the appeal therefrom, of which the plaintiff [or defendant] has given notice by notice dated the day of 19 [or that such other order may be made as the Court may think fit]. [And that the costs of this application be Dated [&c., conclude as in form No. 1, supra.] , to give security within a reasonable time after the order therefor, the respondent must move to dismiss the appeal for want of prosecution (Polini v. Gray, 11 Ch. D. 741). (9) Staying Proceedings pending Appeal.]—By r. 16, “An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from, except so far as the Court appealed from, or any Judge thereof, or the Court of Appeal, may order; and no intermediate act or proceeding shall be invalidated, except so far as the Court appealed from may direct." The application must be made in the first instance to the Court or Judge below (r. 17, ante, p. 488, n. (a)). 9. Notice by Respondent of Intention to contend that the Decision of the Court below should be varied (h). [Title as in form No. 1, supra.] Take notice that the above-named plaintiff [or defendant, the respondent] intends upon the hearing of the appeal under the defendant's [or plaintiff's] notice of appeal, dated the day of, 19-, from the judgment [or order] of [the King's Bench Division of the High Court of Justice], dated the day of, 19-, to contend that the said judgment [or order, or so much of the said judgment, or order, as adjudges, or orders, that setting out the part objected to] should be varied by [specify the variation desired, or say, rescinded] [and that instead thereof it should be adjudged, or ordered, that, &c., specifying the judgment or order desired by the respondent]. Dated [&c., conclude as in form No. 1, supra]. 10. Notice of Intention to apply for Leave to produce Fresh Evidence at Hearing of Appeal (i). [Title as in form No. 1, supra.] Take notice that the above-named plaintiff [or defendant] intends at the hearing of the appeal herein from the order [or judgment] of the Honourable (h) Notice by Respondent.]-By r. 6, "It shall not, under any circumstances, be necessary for a respondent to give notice of motion by way of cross appeal, but if a respondent intends, upon the hearing of the appeal, to contend that the decision of the Court below should be varied, he shall, within the time specified in the next rule, or such time as may be prescribed by special order, give notice of such intention to any parties who may be affected by such contention. The omission to give such notice shall not diminish the powers conferred by the Act upon the Court of Appeal, but may, in the discretion of the Court, be ground for an adjournment of the appeal, or for a special order as to costs." By r. 7, "Subject to any special order which may be made, notice by respondent under the last preceding rule shall, in the case of any appeal from a final judgment, be an eight days' notice, and in the case of an appeal from an interlocutory order, a two days' notice." (i) Power of Court as to Evidence, &c.]—By r. 4, "The Court of Appeal shall have all the powers and duties as to amendment and otherwise of the High Court, together with full discretionary power to receive further evidence upon questions of fact, such evidence to be either by oral examination in Court, by affidavit, or by deposition taken before an examiner or commissioner. Such further evidence may be given without special leave upon interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon appeals from a judgment after trial or hearing of any cause or matter upon the merits, such further evidence (save as to matters subsequent as aforesaid) shall be admitted on special grounds only, and not without special leave of the Court. The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been made, and to make such further or other order as the case may require. The powers aforesaid may be exercised by the said Court, notwithstanding that the notice of appeal may be that part only of the decision may be reversed or varied, and such powers may also be exercised in favour of all or any of the Mr. Justice [or of the King's Bench Division of the High Court of Appeal for leave to produce [and read], in addition to the evidence produced below, the following evidence, viz., evidence, e.g. the affidavit of F. E., sworn herein the 19-]. [here state shortly the fresh day of Upon reading the order herein of the Honourable Mr. Justice the King's Bench Division of the High Court of Justice], dated the [or of day and], and upon hearing Mr. of counsel for the and Mr. -, upon respondents or parties, although such respondents or parties may not have appealed from or complained of the decision. The Court of Appeal shall have power to make such order as to the whole or any part of the costs of the appeal as may be just." By r. 14, "No interlocutory order or rule from which there has been no appeal shall operate so as to bar or prejudice the Court of Appeal from giving such decision upon the appeal as may be just." Evidence on Appeal.]—By r. 11, "When any question of fact is involved in an appeal, the evidence taken in the Court below bearing on such question shall, subject to any special order, be brought before the Court of Appeal as follows: "(a) As to any evidence taken by affidavit, by the production of printed copies of such of the affidavits as have been printed, and office copies of such of them as have not been printed. “(b) As to any evidence given orally, by the production of a copy of the Judge's notes, or such other materials as the Court may deem expedient." By r. 13, "If, upon the hearing of an appeal, a question arise as to the ruling or direction of the Judge to a jury or assessors, the Court shall have regard to verified notes or other evidence, and to such other materials as the Court may deem expedient." Printing Evidence.]-By r. 12, "Where evidence has not been printed in the Court below, the Court below or a Judge thereof, or the Court of Appeal or a Judge thereof, may order the whole or any part thereof to be printed for the purpose of the appeal. Any party printing evidence for the purpose of an appeal without such order shall bear the costs thereof, unless the Court of Appeal or a Judge thereof shall otherwise order." 66 (k) By R. S. C., Ord. LVIII., r. 19, “ On an appeal from the High Court, interest for such time as execution has been delayed by the appeal shall be allowed unless the Court or a Judge otherwise orders, and the taxing officer may compute such interest without any order for that purpose." It is ordered that the said appeal be dismissed, with costs to be taxed or his solicitor. and paid by the to the By the Court. 12. Order allowing the like Appeal. [Follow the preceding form down to the asterisk*.] It is ordered that the said appeal be allowed, and that the said order of the day of 19-, be rescinded, and that [&c., as the case may require, or that the said order, dated be varied by -, stating the variation allowed]. And that the costs of the appeal [and the costs of -] be By the Court. 13. Consent that Motion may be heard before Two Judges of the Court of Appeal (1). [Title as in form No. 1, supra.] We hereby consent that the plaintiff's [or defendant's] appeal or motion. pursuant to his notice of appeal or motion, dated the day of 19-, may be heard and determined by two Judges of the Court of Appeal, pursuant and subject to the provisions of the Supreme Court of Judicature Act, 1899. (Signed) P. S., solicitor for the above-named plaintiff. (1) See 62 Vict. c. 6. CHAPTER II. APPEAL TO THE HOUSE OF LORDS (a). 1. Petition of Appeal (b). in the [county] of To the Right Honourable the House of Lords. The humble petition and appeal of A. B., of [set forth the appellant's address]. Your petitioner humbly prays that the matter of the order [or orders, or judgment] set forth in the schedule hereto [if only part of an order or judgment is appealed from, add: so far as therein stated to be appealed against] may be reviewed before his Majesty the King in his Court of Parliament, and that the said order [or orders, or judgment] [so far as aforesaid] may be reversed, varied or altered, or that the petitioner may have such other relief [if specific relief be desired, it can be so stated in the prayer] in the premises as to his Majesty the King in his Court of Parliament may seem meet; and that C. D. [here name the respondent or respondents] mentioned in the schedule to the appeal may be ordered to lodge such printed case as he [or they] may be advised, and the circumstances of the cause may require, in answer to this appeal; and that service of such order on the solicitors in the cause of the said respondent [or respondents] may be deemed good service. J. F.S. A. W. [To be signed by two counsel (c).] (a) Appeal to the House of Lords.] - By the Appellate Jurisdiction Act, 1876 (39 & 40 Vict. c. 59), s. 4, “Every appeal shall be brought by way of petition to the House of Lords, praying that the matter of the order or judgment appealed against may be reviewed before her Majesty the Queen in her Court of Parliament, in order that the said Court may determine what of right and according to the law and custom of this realm, ought to be done in the subject-matter of such appeal." Time for appealing.]—By Standing Order No. I., it is "Ordered that, except where otherwise provided by statute, no petition of appeal be received by this House unless the same be lodged in the Parliament Office for presentation to the House within one year from the date of the last decree, order, judgment, or interlocutor appealed from." "In cases in which the person entitled to appeal be within the age of one and twenty years, or covert, non compos mentis, imprisoned, or out of Great Britain and Ireland, such person may be at liberty to present his appeal to the House, provided that the same be lodged in the Parliament Office within one year next after full age, discoverture, coming of sound mind, enlargement out of prison, or coming into Great Britain or Ireland: But in no case shall any person or persons be allowed a longer time, on account of mere absence, to present an appeal, than five years from the date of the last decree, order, judgment, or interlocutor appealed against." (b), (c) For notes, see p. 496. |