66 (2.) Enforce ment of Admiralty judgments of a County Court by the High Court. 31 & 32 Vict. c. 71, s. 23. When application can be made. How application is made. Order XXXIII. rule 30. How security given. Order rule 31. Order XXXIII. rule 29. upon facts duly verified upon affidavit allow of substituted "service."-Order XXXIII. r. 25. Secondly, the judgment of a County Court, given in an Admiralty action, may, at the instance of the defendant, be enforced by the High Court, if it involves the sale of a vessel or property. On this subject "The County Courts Admiralty Jurisdiction Act, 1868," enacts as follows: "Where, under process, a vessel or property would " or might be sold, then if the owner of the vessel or property "desires that the sale should be conducted in the High Court "of Admiralty instead of in the County Court, he shall be "entitled, on security for costs being first given, and subject "and according to such other provisions as general orders "direct, to obtain an order of the County Court for transfer of "the proceedings for sale, with or without (as the Judge of the County Court thinks fit) the transfer of the subsequent proceedings in the cause, to the High Court of Admiralty, which "Court shall have jurisdiction and all powers and authorities relating thereto accordingly."-31 & 32 Vict. c. 71, s. 23. An application for a transfer under the above enactment, can only be made after judgment, and only, too, in cases where a sale of a vessel or property is involved in the judgment. 66 66 66 The application is made to the County Court Judge, and is regulated by the following rule : 66 66 A solicitor desiring that the sale of any vessel or property "should be conducted in the High Court of Justice, may at any time after judgment give security to the amount of £10, "and deliver to the Registrar an application for an order for "the transfer of the proceedings for sale to the said Court." -Order XXXIII. r. 30. Security under the above rule is given in the manner described in an earlier page, and may be either by the deposit of money or by bond (b). "The Registrar shall transmit such application to the Judge "for his order thereon, if the Court be not sitting, and shall "in any case certify on the application that the security for "costs has been given."—Order XXXIII. r. 31. Where the transfer of the sale is ordered the following rule of "The County Court Rules, 1875," applies : "Where the vessel has been arrested or has been seized under 66 a warrant of execution, and the sale of the vessel has been "ordered to be transferred to the High Court of Justice, the "vessel shall be retained by the High Bailiff until the marshal "shall, by order of the High Court of Justice, take possession "thereof."-Order XXXIII. r. 29. (b) See ante, p. 378 et seq. BOOK IV. JURISDICTION AND PROCEEDINGS IN ADMIRALTY CHAPTER VI. APPEALS IN ORDINARY ADMIRALTY ACTIONS. Right of appeal and two different des of FROM the date of the first constitution of County Courts in Admiralty, under "The County Courts Admiralty Jurisdiction Act, 1868," an appeal from these Courts to the High Court of Admiralty, or as it is now styled-the Probate, appealing. Divorce, and Admiralty Division of the High Court of Justice, has always existed in all cases involving a judgment for more than £50. Previously to the passing of "The County Courts Act, 1875" (a), the appeal was brought by "instrument of appeal," whatever this may be (b). But "The County Courts Act, 1875," introduced (as we have seen (a)) a new mode of appeal, by way of motion, in all cases. Following the arrangement adopted in the Chapter on Appeals in ordinary cases (c), it is proposed in the present chapter to consider-I. In what cases an appeal lies. II. Appeals by instrument of appeal. III. Appeals by motion. SECTION I.-WHEN AN APPEAL LIES. Speaking generally, an appeal will lie from every final decree In respect of or order of a County Court Judge in an Admiralty cause, where what matters the amount decreed or ordered to be due exceeds the sum of an appeal £50 (d), and also by permission of the Judge, from any inter locutory decree or order therein. "The County Courts Admiralty Jurisdiction Act, 1868," provides as follows: "An appeal may be made to the High Court of Admiralty 31 & 32 Vict. " of England from a final decree or order of a County Court in c. 71, s. 26. (a) See sect. 6 of "The County Courts Act, 1875," set out in full, ante, p. 574. The restriction of the right of appeal to cases exceeding £50 or upwards if contained in a separate section of the Act. See 31 & 32 Vict. c. 71, s. 31, infra. VOL. II. 3 E In respect of what matters an appeal will not lie. (1.) Not where judgment for less than £50. 31 & 32 Vict. c. 71, s. 31. Construction of above enactment. Question whether the pecuniary limit created by Act only applies if defendant appeals. 66 "an Admiralty cause, and, by permission of the Judge of the County Court, from any interlocutory decree or order therein, on security for costs being first given, and subject to such "other provisions as general orders shall direct."-31 & 32 Vict. c. 71, s. 26. Let us next see in respect of what matters an appeal will not lie. Speaking generally, all appeals in admiralty actions will be discouraged unless the Court below has grossly erred (dd). First, an appeal will not lie where the amount decreed or ordered to be due does not exceed the sum of £50. This limit is imposed by the following section of "The County Courts. Admiralty Jurisdiction Act, 1868" "No appeal shall be allowed unless the amount decreed or "ordered to be due exceeds the sum of fifty pounds."-31 & 32 Vict. c. 71, s. 31. It is to be noticed, that, to satisfy the requirements of this section, it is not sufficient that the amount decreed or ordered to be due amounts to £50; but it is necessary that such amount should exceed £50. Moreover, it is also to be observed, that "the amount decreed or ordered to be due" is made the test of whether an appeal will lie, and not the amount claimed. It has been the subject of much discussion whether the remaining restriction, on appeals created by the above section, applies to all appeals-including appeals by plaintiffs-or only to appeals by defendants. In the case of The Docter Van Thunnen Tellow (e), it was held that the above section restricting the right of appeal to cases where over £50 is adjudged, applies to appeals by defendants only, and not where the plaintiff is the appellant. In this case the appeal was from a final judgment in a cause of salvage in the City of London Court, where two suits by separate sets of salvors were heard together, and where the salvors in both suits appealed. The right of appeal being contested by the owners, Sir R. Phillimore, in directing the consolidation of the appeals, said: "The enactment is very badly drawn, but the proper construction would seem to be to hold that the 31st section can only apply where an amount has been decreed or ordered to be due" (ƒ). In the subsequent case of The Elizabeth (g), Sir R. Phillimore, approved of his ruling in the case last cited. But, in the still more recent case of The Falcon (h), he appears to have modified his views. In that case, by a decree of the City of London Court, an action of damage instituted in that Court in the sum (dd) The Cuba, Lush. 15; 6 Jur. N. S. 152; see also The Strattonaser, L. R. 1 App. Cas. 58. 17 W. R. 899; S. C. 3 Mar. Law Cas. 244 (1875-1878). (f) In the report of this case in 3 Mar. Law Cas. 244 (1875-1878), after these words follow-" that is to say, to appeals by defendants only." And it would seem from what Sir R. Phillimore said in The Falcon,3 P. D. at p. 102, that he did make use of these additional words, though they are not to be found in 17 W. R. 899. (9) L. R. 3 A. & E. 33, 35. (4) L. R. 3 P. D. 100. of £30, was, after having been heard on the merits, dismissed with costs. The plaintiff appealed. At the hearing of the appeal the respondent objected to the jurisdiction of the Court to entertain the appeal. The Court dismissed the appeal, on the ground that, as the appellant, if successful, could not have recovered more than £30 in the action, he was precluded from appealing by the 31st section of "The County Courts Admiralty Jurisdiction Act, 1868." Now, in this case, it is obvious that Sir R. Phillimore expressly decided that section 31 does apply to appeals by plaintiffs, equally with appeals by defendants. For otherwise, he would have held that the plaintiff had a right of appeal, irrespective of the amount claimed or recovered. In giving judgment, he says (): "The question is, whether, taking the true construction of the 31st section of 'The County Courts Admiralty Jurisdiction Act, 1868,' into consideration, he has or has not the right to appeal. *** "I have no hesitation in saying that it appears to me that the whole purport of this statute shows it to have been the intention of the statute to exclude appeals where the sum sought to be recovered is under £50. "The question is whether that construction can be put upon these words. Upon this question I will refer to two cases that have been cited. The case of The Docter Van Thunnen Tellow (k) is one, the other is the case of The Elizabeth (kk). I have no note of my judgment in the case of The Docter Van Thunnen Tellow (1), but in the judgment in that case, as reported in the Maritime Law Cases, I am represented to have said: The enactment is badly drawn, but in my opinion the 31st section must be held to apply to appeals where an amount has been decreed to be due-that is to say, to appeals by defendants only.' It is clear that was an extra-judicial dictum (7), and not necessary for the decision of that case. At all events, after giving the best construction I can to the section, I am bound to decide this question: Can the plaintiff in this case, who has entered his action in £30, appeal from the decision of the Judge of the City of London Court to this Court? I fully see the difficulty in the way of putting a satisfactory construction on the section in question, but looking to the whole purport of the Act, and endeavouring to construe the section to the best of my ability, and having a strong opinion that it was the intention of the legislature to exclude all appeals where the sum sought to be recovered did not exceed £50, I think that I must rule that there is no appeal in this case. I do so, on the ground that the plaintiff, having brought his action for £30, L. R. 3 P. Div. at p. 101. (4) 17 W. R. 899; 3 Mar. Law Cas. 244. (kk) L. R. 3 A. & E. 33. (It is submitted that the expresssion which the learned Judge considers to have been extra-judicial enn hardly be so treated, as the very point before the Court was whether a plaintiff could appeal when less than £50 was claimed. How amount is ascertained for purposes of Appeal. (2.) No appeal lies on interlocutory matters save by leave. (3.) No appeal lies if parties have agreed not to appeal. 31 & 32 Vict. c. 71, s. 28. could by no process whatever have got a decree or order for an amount which would have exceeded £30. I do not disguise from myself the difficulty of the construction of the statute; but, upon the whole, I think that the construction I have placed on it is the reasonable construction to arrive at. I give no costs because the case is one of considerable difficulty." Such being the decision in The Falcon, it must now be taken as law that section 31 of "The County Courts Admiralty Jurisdiction Act, 1868," applies alike to appeals by plaintiffs as to appeals by defendants. This result presses somewhat hardly upon defendants. For while, on the one hand, a plaintiff who wholly fails in the Court below can appeal if he could have recovered more than £50 in the County Court. On the other hand, the defendant's right of appeal is limited to cases where the amount decreed or ordered to be due exceeds the sum of £50. As to what is an "amount decreed or ordered" within the meaning of the 31st section of "The County Courts Admiralty Jurisdiction Act, 1868," it has been held that no appeal lies from the decision of a County Court Judge in a salvage case where there is a tender of less than £50, and that tender is upheld, the amount tendered being "the amount decreed or ordered" within that section (m). It has been seen (mm) that cross suits for damage may be heard together. It has been held, however, that, for the purposes of appeal, they are to be considered as distinct (n). ́ Where, therefore, two such suits had been instituted, and, in one of them, the plaintiff recovered less than £50, and, in the other, the suit was dismissed, it was held that there was no appeal in the former suit (o). Next, there is no appeal from any interlocutory appeal or order in an Admiralty cause in the County Court, except by permission of the Judge (p). Thirdly, an appeal will not lie where the parties have agreed in writing not to appeal. "The County Court Admiralty Jurisdiction Act, 1868," provides as follows: "No appeal shall be allowed if, before the decree or order is "made, the parties shall have agreed by a memorandum signed by them, or by their attorneys or agents, that the decree or "order shall be final; and any such agreement need not be "stamped, except in respect of any fee imposed by general "orders."-31 & 32 Vict. c. 71, s. 28. (m) The Fyenoord, 34 L. T. 918. (mm) Ante, p. 775. (n) The Elizabeth, L. R. 3 A. & E. 33; 39 L. J. N. S. Adm. 53. (p) 31 & 32 Vict. c. 71, s. 26, ante, pp. 785-786, where this section is set out in full. |