No. 7. In re St. Nazaire Co., 12 Ch. D. 99, 100.

would be a most remarkable thing, as I said before, if the old practice were to apply so as circuitously to give a longer time than the Rules directly allow. The time for appealing from an order in the winding-up of a company is by the 9th rule the same as an appeal from an interlocutory order under rule 15, which is twenty-one days, except by leave of the Court of Appeal; and we find that no other appeal can, except by such leave, be brought after the expiration of one year. Therefore, if no other appeal can be brought after the expiration of one year, and, as I said before, all these rehearings are in the nature of appeals, and are appeals in fact, one year is the limit for all appeals to the Court of Appeal; and this confirms the view which I have

*

already stated, that there is no appeal at all to the Judge [* 100] of the Court of first instance against any decision, either

of his predecessor or of the Appeal Court. In fact, the only surprising part of the matter is that any one should have thought for a moment that a rehearing of this kind, involving a discharge, although not precisely in express terms, of an order of the Appeal Court, could be presented to a Judge of the Court of first instance.

It seems to me, therefore, that on this ground the petition should have been dismissed. I have refrained purposely from entering into the discussion of what might happen in some of the cases put at the bar of great hardship. I, on the one hand, am neither prepared to say that such cases of great hardship ought to be without a remedy, nor, on the other hand, am I prepared to say that the general good of the community requiring a final end to be put to litigation would not be better insured even if those exceptional cases of great hardship are not provided for. The matter may be looked at either way, and when a proper case is brought before the Appeal Court for discussion as to whether any remedy exists or not, I think it will be sufficient time to consider and decide upon that question. It seems to me that the decision below ought to be reversed, and that the appellant should have the costs of this petition.

BAGGALLAY, L. J. I am of the same opinion, and I have very few words to add. It appears to me that the Court from whose order the appeal is brought had no jurisdiction whatever to make the order. However the language of the petition may be changed, the order from which this appeal is brought is substan

tially an order made on the rehearing of the order of January, 1877. Having regard to the several clauses of the Judicature Act, to which the MASTER OF THE ROLLS has referred, to which I may add also the 19th section of the same Act, which provides, "That the Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment or order, save as hereinafter mentioned, of Her Majesty's High Court of Justice or of any Judges or Judge thereof," it appears to me that, with the particular exceptions which are to be found in different [*101] sections of the Act, the power of rehearing is vested in the Court of Appeal, and in that Court alone.

There is a further difficulty in the present case, that, under the 124th section of the Companies Act, 1862, no rehearing can be brought after the expiration of three weeks, without express permission for that purpose given by the Court of Appeal, and no such leave has been given in the present case. The 9th rule of the 58th Order of the Judicature Act is a provision as regards the time within which such appeals are to be brought, and the time fixed by that rule is substantially the same as that mentioned in the 124th section.

THESIGER, L. J. I entirely agree with the conclusions at which the other members of the Court have arrived, and with the reasons they have given for those conclusions. I would only add that they seem to me to harmonize entirely the practice under the Judicature Act in all Divisions of the High Court, because, whatever may have been the practice in the High Court of Chancery before the Judicature Act as to the review of their decisions. or the rehearing of their decisions, nothing can be clearer than that there was nothing analogous to that in the Common-Law Courts, and it is equally clear that under the Judicature Act, after once the Common Law Division of the High Court of Justice has pronounced a decision upon the matter in dispute which is being litigated between the parties, there is no power in that Division of the High Court to rehear or review that decision upon any suggestion that it has been misled, or that the parties have not brought all the evidence which ought to have been brought in order to enable the Court to arrive at a just conclusion. It certainly would seem to me to be running counter to the idea of fusion, which is at the bottom of the Judicature Act, if it were held that while that is impossible in the Common-Law Division of the High Court, it is possible in the Chancery Division.

No. 7. In re St. Nazaire Co., 12 Ch. D.- Notes.

ENGLISH NOTES.

The rule of the principal case does not apply to a judgment which has been given by default. In such a case the proper course, if there is any remedy, is to apply to the judge by whom the judgment was given, to set aside the judgment and to hear or try the action. Vint v. Hudspeth (C. A. 1885), 29 Ch. D. 322, 54 L. J. Ch. 844.

In Flower v. Lloyd (C. A. 1877), 6 Ch. D. 297, 46 L. J. Ch. 838 -a case which was cited in the argument in the principal case it was held that the Court of Appeal, as constituted under the Judicature Acts, had not power, after an order made by the Court had been passed and entered, to rehear the case on a suggestion that one of the parties had fraudulently misled an expert whose evidence was the only material evidence on the point at issue. The remedy was stated to be a new action to set aside the decree as obtained by fraud.

In Ex parte Banco di Portugal (C. A. 1880), 14 Ch. D. 1, 49 L. J. Bankr. 21, the Court of Appeal refused an application after a judgment of the Court of Appeal to allow a document to be put in, in order that it might be treated as evidence in a pending appeal to the House of Lords. The decision was guarded by the observation that the case might be different if by mistake in drawing up the order evidence had been omitted which had really been before the Court at the hearing by the Court of Appeal.

Where an order has been made by Her Majesty in Council upon a report of the Judicial Committee sitting as a Court of ultimate appeal, a rehearing will not be ordered on the ground that documentary evidence has been subsequently discovered which, if brought before the Committee, might have influenced their decision. Venkata Narasimha Row v. Court of Wards (P. C. 1886), 11 App. Cas. 660.

But the Judicial Committee has the same power as any other Court of Record to rectify a mistake which has crept in by misprision or otherwise in embodying its judgments. Rajunder Narain Rae v. Bijai Govind Sing (1839), 1 Moo. P. C. 117, & 2 Moo. Ind. App. Cas. 181.

AMERICAN NOTES.

Rehearings are regulated by statute or rule in these States, and are only granted by the whole court hearing the case. Thus the trial judge may grant a new trial "on the minutes," and an appellate court may order a reargument. In the western States, a "petition for rehearing" is almost as common as an appeal, and has become so much a matter of course that frequently counsel spend but little force on the first argument of the appeal. In New York however it is very different, and re-hearings or re-arguments are almost unknown. In the Court of Appeals, it is said, only two or three have ever been ordered except in a few cases of equal division of the Judges in opinion. Like physicians the Judges bury their mistakes.

THE profits of a private partnership declared as at the date to which the accounts have been made up, are not dividends apportionable under the Apportionment Act, 1870. (33 & 34 Vict. c. 35).

Jones v. Ogle.

42 L. J. Ch. 334-337 (s. c. L. R., 8 Ch. 192-198, 28 L. T. 245, 21 W. R. 239). Before the full Court of Appeal, Lord SELBORNE, L. C., JAMES, L. J., and MELLISH, L. J.

[335]

The testator by his will, dated the 6th of September, 1863, bequeathed as follows:-

"As to the share or interest which I have in the Lilleshall Iron Company, I bequeath the dividends and income thereof to my said uncle for his life, and after his death the same share or interest shall belong to his two daughters in equal shares."

The testator died on the 21st of October, 1870.

The Lilleshall Iron Company was a private trading company, regulated by a deed under which the management was vested solely in Earl Granville, who with the local manager went through the accounts, which were made up annually in the beginning of each year to the end of the year preceding, and a statement of such accounts for the preceding year was submitted by the directors in the month of January or February each year, and the

custom was that upon the statement of account being laid before Lord GRANVILLE, his Lordship determined what amount of profit should be divided and what amount carried forward. This dividend was not actually paid at once, but by four instalments, the first immediately, and the subsequent instalments in the April, July, and October following.

In February, 1871, a dividend was declared for the year ending on the 1st of January, 1871, and was paid by four instalments at the usual times, the total amount of dividend on the testator's shares being £350 17s. 6d. The residuary legatees claimed to have this sum apportioned according to the portion of the year 1870 during which the testator had lived.

The MASTER OF THE ROLLS thought that the apportionment Acts did not apply to the case, and considered that the whole of the dividend was specifically given to the uncle.

The residuary legatees appealed.

Mr. Fry and Mr. Cozens Hardy for the appellant, repeated the arguments used by them in the Court below, and cited: Hartley v. Allen, 27 L. J. Ch. 621; Re Maxwell's Trusts, 1 H. & M. 610; 32 L. J. Ch. 333; Re Rogers's Trust, 1 Dr. & S. 338; 30 L. J. Ch. 153; Browne v. Collins, L. R., 12 Eq. 586; 4 & 5 Will. IV. c. 22.

Mr. Roxburgh and Mr. Phear, for the respondent, cited: Clive v. Clive, L. R., 7 Ch. 433; 41 L J. Ch. 386; Bates v. Mackinley, 31 Beav. 280; 31 L. J. Ch. 389; Ibbotson v. Elam, 35 Beav. 594; L. R., 1 Eq. 188; Macintyre v. Connell, 1 Sim. (N. S.) 225; 20 L. J. Ch. 284; 1 Lindley on Partnership, 13 (2d ed.).

Mr. Cozens Hardy replied.

THE LORD CHANCELLOR. We all think the decision of the MASTER OF THE ROLLS in this case is correct.

[After some observations upon the construction of the will independently of the Act, which have been the subject of criticism in some subsequent cases, he continued.]

But I also think that this is not really a dividend or [336] a periodical payment in its nature apportionable under the Act. The real object of the statute was to obliterate technical distinctions between different kinds of fixed income recurring from time to time at stated periods, upon which on account of their nature those in receipt of income would rely for their maintenance and ordinary arrangements in life. I for one should be