of his case in the registry, within one month of the printed copies of the Appendix being brought in; default on the part of the appellant entailing the dismissal of the appeal, default on the part of the respondent not preventing the appellant from proceeding with his appeal (u). Save in an appeal proceeding by default, no document is Filing of allowed to be filed without a certificate that a copy thereof has been previously served on the adverse solicitor (x). documents. Any consent in writing between the solicitors may, with Consents. the approval of the registrar, be filed, and will thereupon become an order of Court (y). As soon as the time allowed for bringing in the cases has Hearing. expired, the appeals stand for hearing before the Judicial Committee, provided that, when an appearance has not been entered, a period of four months has expired from the bringing in of the petition of appeal (≈). Under the former practice each solicitor filed a proxy Proxies. from his party, authorising him to conduct the proceedings; but this is not now necessary, unless the registrar has, on application, made an order on the adverse solicitor to file a proxy from his party. Upon non-compliance with this order, a motion may be made to the Judicial Committee to enforce the order, either by dismissing the appeal, or in such other way as the Judicial Committee shall direct (a). peal. At any stage of the proceedings the appellant's solicitor Abandonmay file a proxy from his party, stating that he abandons the ment of ap appeal, and consents to be condemned in the costs thereof, and thereupon the appeal will stand dismissed (b). doing any The registrar may, on good cause shown, extend the time Extension allowed by the rules for doing any act (c), but in case the of time for appeal stands dismissed by reason of non-compliance with act. the rules, either solicitor may, within a fortnight from that time, file a notice of motion to have the appeal reinstated, (u) P. C. Rules, 12 & 13. (x) P. C. Rules, 29. For form of certificate, see Form cxix. (3) P. C. Rules, 30. (z) P. C. Rules, 14. (a) P. C. Rules, 16, and P. C. Forms, 9. Relaxation of inhibi tion. Notice of hearing. Proceedings and the Judicial Committee may, on the hearing of the motion, direct the appeal to be reinstated, subject to such order as to the costs or otherwise as to it may seem meet («). If such notice of motion is not given the registrar may, on the application of either solicitor, issue a relaxation of the inhibition (e). A few days before the appeal is appointed for hearing, notice is sent from the Privy Council office to each solicitor of the day on which it will be heard, and requesting the attendance of the parties and counsel; a copy of which notice is delivered by each solicitor with his brief to counsel. On the day appointed the parties and counsel attend at on hearing. the Council Chambers, Whitehall. Two counsel only, except in extraordinary cases, are heard on each side, and one counsel for the appellant in reply. The appellant always begins. In cases of great importance or difficulty, the Judicial Committee occasionally directs a case to be re-argued wholly or in part, by one counsel on each side, and on such occasions additional members of the committee are generally present. What will be entertained. Fresh matter. Motion. The Judicial Committee will not, on the hearing, entertain any points or evidence which have not been duly raised or adduced in the Court below, unless leave has been previously obtained for that purpose; although, if the Judicial Committee clearly sees, upon the matters properly before it, that the Court below was wrong, it will sustain the appeal. If it is desired to plead specially, whether in objection to the jurisdiction, or in respect of fresh matter (noviter perventa), or of any other matter, leave must be obtained from the Judicial Committee (f). This is obtained by motion before the Judicial Committee, notice of which must be filed and served. Whenever any motion is to be made, a case upon motion must be prepared and printed, and brought into the registry, as upon the hearing of an appeal, stating the nature (d) P. C. Rules, 20. (e) P. C. Rules, 21, and P. C. Forms,11. (f) P. C. Rules, 23. of the application, and the facts relied upon in support of it, verified if necessary by affidavit. A similar case is prepared by the adverse party, and the proceedings are the same as upon the hearing of an appeal. When leave to plead is given, the rules applicable are those of the High Court of Admiralty (g). Upon the conclusion of the arguments at the final hearing, Judgment. the Court at once delivers judgment or takes time to deliberate; in the latter case notice is given to each party when judgment is appointed to be delivered. Costs, both in the Court below and of the appeal, are in the discretion of the Judicial Committee, and usually follow the final event of the cause (). When an appeal stands dismissed by the rules, the appellant, unless there is a special agreement to the contrary, stands condemned in the costs of the appeal. The Court upon affirming or dismissing the appeal may, if necessary, order the cause to be remitted back to the Court below, or the cause may be remitted with directions to the Court below (i), in which case the registrar will, upon the application of either solicitor, issue a remission (k). The Court has power to refer any matter to the registrar, Reference or to the registrar assisted by merchants, to report upon, and to registrar. the rules, with regard to references in the Admiralty Court, are applicable to such references. The Court of Appeal may order witnesses to be examined, and may direct an issue to be tried in any Court in any of Her Majesty's dominions abroad, or in any of the Courts of Common Law, at bar, or before a judge of assize, or at the sittings in London or Middlesex, and either by a special or common jury (1). All orders or decrees may be enforced by attachment or Orders and sequestration (m), after the party in default has been duly (g) P. C. Rules, 24. (h) 3 & 4 Will. 4, c. 41, s. 15; 6 & 7 Vict. c. 38, s. 12. (i) 3 & 4 Will. 4, c. 41, s. 8. (k) P. C. Rules, 22, and P. C. Forms, 12. (7) 3 & 4 Will. 4, c. 41, ss. 7, 8, 10. decrces may be attachment or sequestration. enforced by monished. When any party fails to pay any amount which shall have been found to be due from him, within a fortnight after he shall have received notice from the adverse solicitor Monition demanding payment of the same, the registrar may, on application of the solicitor, and on an affidavit being filed proving the notice, issue a monition for payment thereof (n). for pay ment. Monition for attach ment or se questration. Bail. Where the appellant resides out Upon the monition being returned duly served, and an affidavit that the demand has not been paid, motion may be made to the Judicial Committee for an attachment or a sequestration, as the case may be (0). The ordinary bail bond in the Court below does not cover the costs in the Court of Appeal (p), and although power is given by the Admiralty Court Act, 1861, s. 33, to take bail to answer the judgment, as well of the Court of Admiralty as of the Court of Appeal, no form of bail bond for this purpose has yet been settled. When the appellant resides out of the United Kingdom, he must, within two months after his solicitor has been of United served with a notice to that effect, give bail by two sufficient Kingdom. sureties to answer the costs of the appeal in the sum of 200l., and if he should not do so the appeal will stand dismissed (9). 13. (n) P. C. Rules, 26, and P. C. Forms, (0) P. C. Rules, 2, and P. C. Forms, 14 & 16. 6. p) The Helene, Br. & L. 425. (2) P. C. Rules, 15, and P. C. Forms, APPENDIX. STATUTES. THE following are the sections of The Merchant Shipping Act, 1854, referred to in the chapter on POSSESSION (a). LXII. Whenever any property in a ship or share in a ship becomes vested by transmission on the death of any owner or on the marriage of any female owner in any person not qualified to be the owner of British ships, it shall be lawful, if such ship is registered in England or Ireland for the Court of Chancery, if in Scotland for the court of Session, or if in any British possession for any court possessing the principal civil jurisdiction within such possession upon an application made by or on behalf of such unqualified person, to order a sale to be made of the property so transmitted, and to direct the proceeds of such sale, after deducting the expenses thereof, to be paid to the person entitled under such transmission, or otherwise as the court may direct; and it shall be in the discretion of any such court as aforesaid to make or refuse any such order for sale, and to annex thereto any terms or conditions, and to require any evidence in support of such application it may think fit, and generally to act in the premises in such manner as the justice of the case requires. LXIII. Every order for a sale made by such court as aforesaid shall contain a declaration vesting the right to transfer the ship or share so to be sold in some person or persons named by the court, and such nominee or nominees shall thereupon be entitled to transfer such ship or share in the same manner, and to the same extent, as if he or they were the registered owner or owners of the same; and every registrar shall obey the requisition of such nominee or nominees as aforesaid in respect of any transfer to the same extent as he would be compellable to obey the requisition of any registered owner or owners of such ship or share. (a) See p. 26. |