A COURT of ultimate appeal will not entertain the contention of a person who has not followed the course open to him by the ordinary practice of the Court below, to obtain what he asks. So that where a person has not moved for a new trial in accordance with the practice pointed out by rules of procedure of the Colonial Court, the Judicial Committee of the Privy Council will not entertain an application to alter the verdict, or direct a new trial.

Dagnino v. Bellotti.

11 App. Cas. 604-606 (s. c. 55 L. T. 497).

Appeal from a decree of the Supreme Court of Gibraltar [604] (June 2, 1885), whereby judgment was entered for the respondent for 20,842 pesetas, with costs, in an action for goods sold and delivered, money paid, and work and labour done.

The trial took place before the CHIEF JUSTICE and three sworn assessors. No application for a new trial was made, but on the 6th of June the defendant petitioned for leave to appeal to Her Majesty in Council, and the petition was registered. On the 9th of June he moved for leave to appeal, which was opposed by the plaintiff on the ground that there should have been a motion for a new trial within four days, but granted by the Court, the CHIEF JUSTICE ruling, that under the charter he had no option to refuse leave, though the authorities cited might prove fatal in the Privy Council."

66

Arbuthnot, and J. Frobisher Mills (Matthews, Q. C., with them), for the appellant, contended that he should be allowed to show that the verdict could not be justified by the evidence, and that no reason was given, or could be suggested, for arriving at its amount. The respondent's case was that the appeal was excluded by reason of the omission to apply to the Supreme Court for a new trial within four days from the verdict, as directed by the rules. But that rule only applies where one judge alone had found the

sors.

[*605] facts *- here the verdict was of a judge and three assesClark's Colonial Law, p. 684; Santa Cana v. Ardevol, 1 Knapp, 269; Canepa v. Larios, 2 Knapp, 283; Musadee Mahomed Cazum Sherazee v. Meerza Ally Mahomed Khan, 8 Moo. P. C. 112; Tronson v. Dent, 8 Moo. P. C. 441.

Greene, Q. C., and W. English Harrison, for the respondent, were not called upon.

The judgment of their Lordships was delivered by

Sir BARNES PEACOCK :

Their Lordships do not think it necessary to call upon the counsel for the respondent.

This is an appeal against a judgment and decree of Her Majesty's Supreme Court of Gibraltar, dated the 2nd of June, 1885, in which, in an action for goods sold and delivered, judgment was entered for the respondent, the plaintiff, for the sum of 20,842 pesetas, together with the costs of suit. By the Charter of Justice of the Court of Gibraltar, that Court consists of a single judge, and it is provided that "all issues of fact arising in civil suits, or actions depending in the said Court, shall be tried and decided by the said judge and three assessors, to be appointed as hereinafter mentioned, until otherwise provided for by law; and that the verdict of the said judge and assessors on the trial of any such issue, shall be according to the majority of votes, but if such votes shall be equally divided, then according to the opinion of the said judge; and every such verdict shall be delivered in open court by the mouth of the said judge." By the same charter a provision is made for an appeal to Her Majesty in Council in certain cases, and it is also provided that on trials before the judge and assessors in appealable cases the evidence given in the case shall be recorded. By another portion of the charter a power is given to make Rules of Court, and by one of those rules it is provided: "That all judgments shall be promulgated at the expiration of eight days from the time of their being pronounced, and in case of a trial by the judge and assessors, or by a jury, each party shall be allowed four clear days after judgment pronounced in [*606] which to move the Court, if in term, or take out a summons before the judge if in vacation, for a new trial, upon such grounds alone as new trials are granted by the Courts at Westminster, upon giving two clear days' notice of the motion or the summons."

In the present case it is contended that the judgment was wrong, because it gave effect to a verdict which was not warranted by the evidence. If the verdict was not warranted by the evidence, the case fell within the rule which has just been read, which states that the party may move for a new trial. The proper course for the appellant to have adopted was, if he considered that the verdict was not warranted by the evidence, to move the Court for a new trial. He has not exhausted the remedies which the rules and practice of the Court directed should be observed in cases where a verdict of the judge and assessors is objected to upon the ground that it is not warranted by the evidence. It would be very inconvenient if parties, without moving the Court for a new trial, could be at liberty to ask Her Majesty in Council to set aside the judgment upon the ground that the verdict was wrong, without having taken that course which is pointed out by the rules made in pursuance of the charter to be adopted in the case of an objection to a verdict. The parties may be put to very great expense by an appeal to Her Majesty in Council in a case in which that expense might be avoided by adopting the course of applying to the Court below; and it would be very inconvenient if the parties could come here and ask Her Majesty in Council to reverse that judgment without going in the first instance to the judge who had seen the witnesses and knew the whole of the circumstances of the case, and applying to him to have that verdict reviewed.

Her Majesty cannot alter the verdict or set it aside, and their Lordships are of opinion that they cannot advise Her Majesty to direct a new trial, the parties not having applied to the Court in the regular course instead of coming here.

Their Lordships will therefore humbly recommend Her Majesty to affirm the judgment of the Court below. The appellant must pay the costs of this appeal.

ENGLISH NOTES.

The cognate rule of the House of Lords, as an ultimate Court of Appeal, that the Court will not go into a point which was not taken in the Court below, is so well known and observed that it is perhaps not to be found expressly laid down in the reports. Even in the lower Court of Appeal, although the hearing there is, under the rules, a rehearing of the case, a new point cannot be raised, which, if it had been

No. 5. Merry v. Nickalls, L. R. 8 Ch. 205. - Rule.

raised in the Court below, might have been met by evidence which would have caused it to fail. Ex parte Firth, In re Cowburn (C. A. 1881), 19 Ch. D. 419, 51 L. J. Ch. 473.

AMERICAN NOTES.

This doctrine is not precisely applicable in this country where everything on the subject is regulated by statute or rule, but the result is the same, for it is believed to be the rule here that the appellant must exhaust his remedies below before appealing. For example, formerly, in New York, if the general term of the Supreme Court granted a new trial, the parties must go back and take it before an appeal would lie to the Court of Appeals, but now this is changed, so that the aggrieved party may appeal directly to the Court of Ap peal by stipulating to allow final judgment against him if the order for a new trial shall be affirmed in that Court.

SECTION II. Execution Pending Appeal.

--

No. 5. MERRY v. NICKALLS.

(CH. 1873.)

RULE.

EXECUTION pending an appeal from a judgment for the payment of money, on a suggestion of the plaintiff's inability to repay it, will not be stayed except on the plaintiff declining or failing to give security for the repayment; and then only upon the terms of the defendant paying the money into Court. The stay is a matter of favour; and the costs of an application for it must be borne by the defendant applying.

Merry v. Nickalls.

L. R. 8 Ch. 205-206 (s. c. 42 L. J. Ch. 479-480, 28 L. T. 296, 21 W. R. 305).

[205]

This was a suit in Chancery, in which the defendant had been ordered to pay to the plaintiff a sum of about £1100 and the costs of the suit.

Mr. Buchanan now moved that the proceedings under the order for payment might be stayed, pending the defendant's appeal to the House of Lords. The defendant was willing to bring the money into Court.

No. 5.—Merry v. Nickalls, L. R. 8 Ch. 206. Notes.

Mr. Davey, for the plaintiff, objected that his client would have to pay the money, and would then be out of pocket pending the appeal.

*Their Lordships made an order to stay proceedings under [* 206] the order for payment; the defendant to pay the money to the plaintiff, the plaintiff giving security for repayment if the defendant succeeded on the appeal; or the defendant, if the plaintiff preferred that course, to pay the money into Court. The costs of the suit to be paid according to the decree, on the solicitor undertaking to repay if the Court should so direct.

Mr. Buchanan asked that the costs of the application might be costs in the cause, and cited Burdick v. Garrick, L. R., 5 Ch. 453; 39 L. J. Ch. 661.

Their Lordships thought that there must have been some special circumstances in that case. The defendant came here to ask a favour, and must pay the costs of his application.

ENGLISH NOTES.

The ruling case gives an example of the practice of the Court of Chancery before the merger of that Court by the Judicature Acts. The practice was different in the case of appeals by writ of error from the Superior Courts of common law.

Formerly a writ of error operated as a supersedeas of execution from the time of the allowance of the writ. 2 Wm. Saunders, p. 101, h. et seq. This effect came to be conditional upon bail being duly put in where bail was required. Bail was not required by common law; but by certain statutes (commencing with 3 Jac. I., c. 8) was required as a condition for the stay of execution. By the earlier statutes this condition only applied to certain classes of actions; but from and after the statute, 6 Geo. IV., c. 96, bail was required in all cases after judg ment for the plaintiff in any personal action, unless it was otherwise ordered by the Court or a judge. By s. 151 of the C. L. P. Act 1852, upon any judgment of any of the Superior Courts of common law, execution should not be stayed or delayed by proceedings in error without the special order of the Court or a judge, unless the plaintiff in error should bind himself with sureties by recognisance in the manner there pointed out.

Under the modern procedure, proceedings in error are superseded by appeals to the Court of Appeal or the House of Lords as the case may be. The practice of putting in bail in error under the C. L. P. Act 1852 continued in respect of appeals to the House of Lords until the Appellate Jurisdiction Act 1876. But the practice now is to apply to