But where the prolixity of pleadings was excessive, and the judge of first instance (V. C. HALL) had refused to strike out the statement of claim-apparently thinking that the complexity of the case justified a reversion to the practice of pleading in an old bill in Chancery — the Court of Appeal reversed the decision, pointing out that under the new and better system established by the Judicature Acts, it was essential that the statement should be as brief as the nature of the case would admit, and that all irrelevant matter should be avoided. Davey v. Garrett (C. A. 1878), 7 Ch. D. 473, 47 L. J. Ch. 218. In effect the judge of first instance had not exercised his discretion under the rules, but had misconceived the intention of the rules in regard to the principles of pleading. In Jarmain v. Chatterton (C. A. 1882), 20 Ch. D. 493, 51 L. J. Ch. 471, there was an appeal from an order of the judge refusing to commit. The Court of Appeal, being of a dif ferent opinion upon the question of right upon which the Judge had decided, made an order for a certain payment and in default for committal. The MASTER OF THE ROLLS (Sir G. Jessel) observed that Ashworth v. Outram (supra) must not be taken as laying down a general rule that no appeal lies from a refusal to commit.

AMERICAN NOTES.

The rule of the principal case is undoubtedly prevalent in this country. (See notes, ante, p. 243.) It is familiar in New York, where there are two appellate courts. Cushman v. Brundett, 50 New York, 296; Mills v. Hildreth, 81 New York, 94; McKenna v. Bolger, 94 New York, 641; Connolly v. Kretz, 78 New York, 620; Cole v. Malcolm, 66 New York, 67; Matter of Railroad Co., 82 New York, 95; Syracuse, &c. R. Co. v. Syracuse, &c. R. Co., 88 New York, 110. See also Truett v. Rains, 17 South Carolina, 451. An order punishing for contempt is a familiar example. Crow v. State, 24 Tex. 12; Huerstal v. Muir, 62 California, 479; State v. Giles, 10 Wisconsin, 101; Cass v. Maxwell, 20 Florida, 17; Atlantic, &c. Tel. Co. v. B. & C. Tel. Co., 87 New York, 355 (but see Romeyn v. Caplis, 17 Michigan, 49).

In some instances an appeal is allowed if there has been an injurious abuse of discretion. Market Bank v. Pacific Nat. Bank, 102 New York, 464; Logan v. Logan, 90 Indiana, 107; Louvais v. Leavitt, 53 Michigan, 577.

UNDER the rule enabling the Court (under special circumstances) to direct a deposit to be made or security given for the costs of an appeal, it has become the settled practice, if the respondent asks for it, to require security for costs to be given by an appellant who would be unable through poverty to pay the costs if the appeal should be unsuccessful.

Harlock v. Ashberry.

19 Ch. D. 84-86, s. c. 51 L. J. Ch. 96-97; 45 L. T. 602; 30 W. R. 112.

The action in this case was tried before Mr. Justice FRY, [84] who gave judgment in favour of the plaintiffs. 18 Ch. D. 229; 50 L. J. Ch. 745. The defendant appealed from this decision, and the plaintiffs now applied to the Court to order the defendant to give security for costs of the appeal.

In support of the application the plaintiffs filed an affidavit stating their belief that the defendant was in very poor circumstances, and wholly unable to pay the plaintiffs' costs of the appeal in case it should be decided against her. They also stated that the defendant was a woman of very advanced age, living in a cottage which was the subject-matter of the action, without visible means of support, and that on the death of her father she admitted that she was unable to pay the expense of his funeral. This affidavit was not answered by the defendant. Cozens-Hardy, in support of the application.

H. A. Giffard, for the defendant:
:-

Insolvency has repeatedly been held a sufficient ground for ordering an appellant to give security for costs, but there are no reported cases in which mere poverty without anything else has been held sufficient. In the case of insolvency the appellant has ceased to have a personal interest in the action; but if mere poverty should be held a sufficient ground, it would often be a denial of justice. Every suitor has a right to carry his

[*85] case to the Court of Appeal: Wilson v. Smith, 2 Ch. D. 67; 45 L. J. Ch. 292; Ex parte Isaacs, 9 Ch. D. 271, 47 L. J. Ch. 111; Rourke v. White Moss Colliery Company, 1 C. P. D. 556; 46 L. J. C. P. 283; Waddell v. Blockey, 10 Ch. D. 416.

JESSEL, M. R.:

For some time past it has been the settled practice, if the respondent asks for it, to require security for costs to be given by an appellant who would be unable through poverty to pay the respondent's costs of the appeal if it should be unsuccessful. The amount is generally very moderate, and often turns out to be a good deal less than the actual costs. In the present case I think that £30 will not be too large a sum to deposit as security, the case being one in which two counsel have been employed on each side on the original hearing, and in which there are difficult points of law to be argued. With respect to the alleged hardship on the appellant it must not be forgotten that before the Judicature Acts. every appellant in the Court of Chancery had to deposit the sum of £20.

BAGGALLAY, L. J. : —

I am of the same opinion.
LUSH, L. J.: -

Before the Judicature Acts there appears to have been some difference between the practice in the Court of Chancery and in the Common Law Courts. In the Court of Chancery it was the practice to require security to a certain amount for the costs of an appeal to be given in every case. That was not the practice in the Courts of Common Law; there poverty alone was not considered a sufficient reason for requiring security to be given. If the appellant had become either really or technically insolvent, or was out of the country, the Court would order security to be given. In other cases security was not required. If, however, the appellant asked for a stay of execution on the judgment upon his writ of error, he had to give bail for the amount of the judgment; if he did not ask for a stay of execution the writ of error issued as a

matter of course. The rule under the Judicature Act (rule [*86] 15 of Order LVIII.) * provides that such security for the

costs of any appeal shall be given as may be directed under special circumstances by the Court of Appeal. This was intended to alter the whole practice both of the Court of Chancery and of the Courts of Common Law, and to leave it in the discretion of the

No. 3. Harlock v. Ashberry, 19 Ch. D. 86. Notes.

Court whether security should be given under special circumstances. I understand that it has been the practice to hold that poverty or inability to pay the costs of the appeal if it should be unsuccessful is a special circumstance. I therefore agree that in

this case a deposit of £30 should be made.

ENGLISH NOTES.

The clause of R. S. C. Ord. 58, r. 15, so far as relates to the above rule, is: "Such deposit or other security for the costs to be occasioned by any appeal shall be made or given as may be directed under special circumstances by the Court of Appeal."

In Rourke v. The White Moss Colliery Company (1876), 1 C. P. D. 556, 46 L. J. C. P. 283,- an action by a workman against a collieryowner for negligence in sinking a shaft whereby the plaintiff was injured, the question arose out of a common employment; and in answer to an application that the plaintiff should give security for costs, it was argued that he ought not to be deprived of the opportunity of discussing the question which had not previously been considered in a Court of Error. The Court, under the circumstances, thought the appeal ought to be heard without calling on the plaintiff to give security for costs. It has since been stated that there is no general rule that the appellant should be exempted because there is a new question of law to be discussed; and the true view on which the Court of Appeal had acted was explained to be, that the insolvency of the plaintiff had arisen from what (if the plaintiff was right) was the wrongful act of the defendant; and that to require security for costs on the ground of an insolvency so caused might have been a denial of justice. Farrer v. Lacy, Hartland, & Co. (C. A. 1885), 28 Ch. D. 482, 54 L. J. Ch. 808.

In Whittaker v. Kershaw (C. A. 1890), 44 Ch. D. 296, the Court held that a married woman who had no property except what she was restrained from anticipating must give security for the costs of an appeal. "The question is," said Lord Justice COTTON in his judg ment, in which the Lords Justices LINDLEY and BOWEN concurred, "whether the appellant has any property against which payment can be enforced by the respondent."

That poverty alone is a "special circumstance" affording ground for ordering an appellant to give security for the costs of an appeal, has been repudiated by the Lords Justices of Appeal in Ireland, as a principle applying to the courts there. Brooke v. Kavanagh (1888), 21 L. R., Ir. 474. In that case however there was a suggestion that the appeal was to be prosecuted in the interest of other parties; and they

VOL. III.-27

held this, together with the poverty of the nominal appellant, a sufficient reason for requiring security, which was fixed at £20.

There are other special circumstances which have been held sufficient for requiring security; for instance, where the proceedings appear an abuse of the process of the Court; as where a plaintiff whose action has been dismissed as frivolous brings a second action for the same cause which is in like manner dismissed, and appeals from the latter order of dismissal. Weldon v. Maples (C. A. 1887), 20 Q. B. D. 331, 57 L. J. Q. B. 224. Where the defendant is out of the jurisdiction, and there is no property which the respondent can look to for the payment of his costs, the requirement is a matter of course, if applied for in time. In re The Indian, Kingston, &c. Mining Co. (C. A. 1882), 22 Ch. D. 83, 52 L. J. Ch. 31.

AMERICAN NOTES.

The matter of security for costs on appeal is probably regulated by statute in most of the States of this country, and not left to the discretion of the Court. Nor is poverty alone recognized as a reason for demanding security. There are certain statutory grounds for demanding security for all the costs of an action, as for example, non-residence, but in New York at least, poverty is not one of these. Indeed, a plaintiff may sue in formâ pauperis. In the Supreme Court of New York, the Court may stay the entry of judgment pending an appeal to the general term, the appellate branch of that Court, but insolvency is generally regarded as a valid ground for refusing such stay. If judgment is entered, the appellant need not give security for any part of the judgment unless he desires to stay execution, and if the judgment is enforced pending the appeal, and is reversed on such appeal, the Court may order restitution. If the party desires to appeal from that Court to the Court of Appeals, as a general rule (excepting certain specified cases of issues tried by the Court alone, of interlocutory judgments, and cases involving mere ques tions of law, etc.), final judgment must be entered, and security for $250 costs must be given in all instances, and if a stay of execution is desired additional security must be given to pay the judgment if affirmed. If the execution is not thus stayed, and the judgment is meantime enforced, restitution may be awarded. Under the exceptions noted parenthetically above, a wide latitude is allowed for appeal without security and ample provision is made for restitution, into the details of which it will not be useful to enter at this point. This explanation will suffice to denote the different policy and practice of these States from that of England in respect to liberty of appeal.

The power to require security for costs in Courts of law depends on express enactment. Gordon v. Ellison, 9 Iowa, 317; 74 Am. Dec. 353.

It has been held that where security is absolutely required, an appeal in formâ pauperis may not be prosecuted. Bolton v. Gardner, 3 Paige (New York Chancery), 273; Campbell v. Chicago, &c. R., 23 Wisconsin. (But it has also been held by way of alleviation that if the pauper gives security and succeeds on the appeal, he may recover "dives costs." Bolton v. Gardner, supra.)