PRACTICE

OF THE

JUDICIAL COMMITTEE.

General Points of Practice adjudged upon Appeal in the Privy Council.

Time for Appealing.

THE party who may have been admitted to appeal by the governors is allowed a year and a day from the date of the decree, but subject to enlargements upon cause shewn. In the case of THE ORPHAN v. VAN REENEN, July 17th, 1829, (a) it was determined that where leave to appeal had been refused by the court below, the petition for leave to appeal need not be presented to the King in council within the year and day. The observations of the noble lord, upon whose advice the point was disposed of, were as follow :

Lord Wynford.—“There is an established rule, that if an appeal be granted the party must bring his appeal within a year and a day; but this rule has never yet been extended to a case where the appeal has been refused by the colonial court. It is to be hoped that appeals will rarely, if ever, be refused to parties who have any pretence of interest. The King is anxious that complete justice should be done to all the inhabitants of the provinces belonging to his empire, and has directed the governors of those provinces to allow appeals to himself in council. Should, however, a case occur in which an appeal has been refused, and the party has neglected to follow up the appeal (allowed on petition to the King) for an unreasonable time, we shall feel it our duty to recommend to his Majesty to dismiss it. As, however, we are guided by this rule; as the respondent has not petitioned to have this appeal dismissed, but takes this objection for the first time when it is called on for decision; as it comes from a distant colony; and as it affects the interests of infants; we do not think it proper to advise his Majesty to dismiss this appeal on account of the delay that has occurred in its prosecution (b).”

CRAIG v. SHAND (c).—An order in council having been made altering the mode of appealing from the colony, and having been directed by proclamation of the Governor, dated 14th May, to take effect from the 18th, it was held that an appeal, which had been noted on the 2nd of that month, against a judgment made on the 1st, and which appeal had been presented on the 15th, ought to be prosecuted according to the previous practice, and not according to the new order.

(a) 1 Kn. 83.

Sept., and the order refusing the appeal, 9th
Oct. 1823.

(c) 1 Kn. 253.

(b) The decree complained of bore date 18th

Leave to appeal granted by the Privy Council.

E. I. COMPANY v. SYED ALLY (d). Where a party has lost his right of appealing according to the charter of a court below, through the erroneous construction of it by that court, the Privy Council will, upon special petition, grant leave to appeal.

Leave to appeal erroneously granted below.

E. I. COMPANY U. SYED ALLY (d). Where the court below has granted leave to appeal, in a case in which they were not authorized by their charter to do so, it is not sufficient for the appellant to present the common petition of appeal to the King in council. A special application for leave to appeal must be made to the King in council under such circumstances.

Appeal will not lie on the ground merely that Witnesses were discredited. SANTACANA V. ARDEVOL (e). An appeal will not lie on the sole ground that the court below discredited the testimony of the witnesses improperly. The principle on which this rule is founded is thus explained by

Sir John Leach, M. R." The court below proceeded on the ground that they discredited the witnesses on the part of the appellant. This board never heard of an appeal being instituted on the ground that witnesses had been discredited. The court below were aware of the character of these witnesses, and besides the knowledge of their character had the advantage of seeing their demeanour and behaviour, of which we, on written evidence, have no power of judging. We feel it our duty, therefore, to decide this case on the general principle that no appeal will lie on the mere ground that the court below discredited the witnesses produced to them by either party ().” Appeal dismissed with costs.

Although an Appeal may not lie, the Crown may be petitioned for a Reference generally to the Judicial Committee.

RE STRONACH(8). By the Grenada Act, No. 250, made in pursuance of the provisions of the Slave Abolition Act, 3 & 4 Will. IV. c. 73, the jurisdiction of the Chief Justice is final and conclusive, and no appeal lies therefrom to the Queen in council; but the Judicial Committee in refusing leave to appeal from an order made by the Chief Justice under the provisions of the act, suggested a petition to the Crown, through the Secretary of State, for a reference to the Judicial Committee generally, with a view to obtain their opinion; but held they had no jurisdiction to entertain the appeal.

Appealable Value.

CUVILLIER v. AYLWIN (b).—An Act of the British Parliament declared that all laws passed by the legislature of Lower Canada should be binding within the colony; and directed that the court below should be subjected to such appeal as it had been subject to previously to the passing of the Act, and also to such other provisions as might be made in that behalf by any act of the colonial legislature. It was held in the Privy Council, that an act having been passed by the colonial legislature limiting the right of appeal to causes where the sum in dispute was not less than 5007. sterling, a petition for leave to appeal where the sum was of less amount could not be received by the King in council, although there was a special saving in the colonial act of the rights and prerogatives of the Crown.

MOOFTI MOHUMMUD UBDOOLAH v. BABOO MOOTICHUND (i).-Two suits having been

(d) 1 Kn. 331, note.

(*) 1 Kn. 269.

(f) See however Canepa v. Larios, infra, p. 765.

(8) 2 Moore, P. C. Ca. 311.

(b) 2 Kn. 72.

(i) 1 Moore, 363.

brought for sums due on the same account, each of which was under 50,000 rupees (or 5007.), it was held that such suits could not be consolidated for the purpose of appeal, though the original severance of them was contrary to the plaintiff's instructions, and the aggregate amount of both exceeding that amount.

The appellants presented a petition to the Sudder Court, praying that the two causes might be reheard, or that an appeal might be admitted to the King in council, on the ground that they constituted one and the same cause, though split into several demands, and comprised a sum in the aggregate exceeding 50,000 rupees (or 50007.), the amount required by the Act of Parliament and the existing regulations (). The Sudder Court allowed the appeal. The securities were accordingly perfected, and the appeal was transmitted to England.

Mr. Baron Parke." In this case there are two distinct causes, and two separate judgements in both the courts below. During the proceedings either in the provincial Court of Bareilly, or the Sudder Court of Bengal, these suits were never consolidated, but were all along treated as separate and distinct. How, then, can the court below say that they shall be consolidated for the purpose of the appeal? The Act 21 Geo. III. c. 70, is conclusive. If the court could consolidate these suits, for the purpose of the appeal, by the same rule any number of suits might be consolidated if they represented the same matter. That is contrary to the words, as well as the intention, of the act of Parliament. All their lordships are of opinion that the application cannot be entertained. The appeal, therefore, must be dismissed with costs.”

Re TUPPER (1). The Royal Court of Guernsey made a decision on the 23d February, 1833, confirming a rate for the relief of the poor, on the real and personal property of the parishioners of St. Peter-le-Port in that island.

It appeared that seven parishioners applied to the court below for leave to appeal, which was refused on the ground, inter alia, that the sum was below the amount fixed by the order in council (2007.).

The parishioners then petitioned the Privy Council. After hearing counsel, it was determined that the appeal should be allowed, although the assessments on the seven complainants were both separately and collectively below the standard fixed by the order in council; because, were appeals refused under such circumstances, the courts in Guernsey might impose taxes to any amount, under 107., on every individual of a population of 25,000.

The exception to the rule requiring the value of the matter in contest to be of a certain amount is stated to be "where the matter relates to the taking or demanding any duty payable to the King, or any annual rent, or other such like matter or thing, where the right in future may be bound(m)."

The instructions to the Governor, or the Charters of Justice, generally impose limits upon the right of appealing, but upon a question on this subject arising in 1717, the Attorney-General, Northy, reported his opinion as follows:

"And as to the instructions given to the Governor, as mentioned in the petition, whereby he is restrained from allowing an appeal in any case under the value of 5001. sterling, that does only restrain the Governor from granting of appeals under that value; notwithstanding which, it is his Majesty's power, upon a petition, to allow an appeal in cases of any value, where he shall think fit; and such appeals have often been allowed by his Majesty." This opinion, Mr. Clarke says, was quoted by Dr. Lushington to the Lords of the Council, in the case of Ex parte Jacob de Nariente, November 24th, 1832, and assented to by their lordships. Clarke's Col. Law, p. 111.

(J) 21 Geo. III. c. 70, s. 21; Reg. 17, A.D. 1797, sects. 2 & 3, since repealed by the 3 & 4 Will. IV. c. 41, and the Order in Council of 10th Apr. 1838.

(1) 2 Kn. 201.

(m) Stokes, 222 to 225.

Securities for Costs and due Prosecution.

CAMBERNON . EGROIGNARD (m).-The petitioners were intervening parties, and entered their appeal against two decrees of the Court of Appeals in the Mauritius, and tendered security for the prosecution of it. Their security was objected to, and the court below adjudged it to be insufficient. They petitioned the Privy Council, praying that the decrees might be reversed. The respondents presented a counter petition that the appellants' petition might be rejected, and the decrees carried into execution. By the 4th article of a proclamation by the Governor of the Mauritius, in pursuance to instructions from the Colonial Secretary, it was decreed "that all questions relative to the securities to be given in appeals, relative to their amount, value, sufficiency, or reception, should be decided by the court, against whose judgment or decree an appeal to his Majesty in his Privy Council should be made." Their lordships, after hearing counsel, were of opinion that, as the court below had decided that the security tendered was insufficient, they had no jurisdiction on the subject, and the appellants' petition was dismissed with costs.

A petition for leave to appeal, on giving such security as the council should think, was afterwards presented by the appellant. Upon hearing Mr. Knight for the petition, and Dr. Lushington for the respondent, the petition was dismissed with costs.

POWELL v. WASHBURN (").—The appellant in pursuance of the Canada Act, 34 Geo. III. c. 2, s. 35, tendered his bond as security for the due prosecution of the appeal. The bond, though without sureties, and binding only on the appellant, was, upon a rule to show cause, duly allowed. Pending the appeal, the appellant died, and the cause was revived against the executors. Application was then made that the executors should give sufficient securities, otherwise the appeal to stand dismissed. The application was refused; the Judicial Committee being of opinion, that the allowance of the security in the court below precluded the respondents from objecting now to the form of the bond; and that their appearance to the order of revivor prevented the court imposing terms on the respondent. The opinion of the court was as follows:

Mr. Baron Parke.-" By the term 'proper security,' used in the Canada Act, we should certainly understand security with proper sureties. Now there is neither surety nor principal to the bond in the event that has happened, viz. the death of the obligor. The court below, however, and the respondent, were satisfied with the instrument in that form; for it appears that a rule nisi, to show cause why the security so tendered should not be allowed, was granted, served on the respondent, and subsequently made absolute. It is now too late, therefore, to question the propriety of the terms of the bond. The proper course to have taken would have been to have moved to dismiss the appeal upon the death of the appellant, when we could have imposed terms; but the appearance to the order of revivor precludes that course now, and we must dismiss this petition."

RETEMEYER V. OBERMULLER().—This was an appeal from a sentence of the Supreme Court of Berbice, pronounced on the 7th of April, 1834, in the matter of an assessment of the amount of two previous sentences of the same court, dated 30th October 1826, and 1st August 1830, upon demands in convention and re-convention, in a suit between the appellant and respondent, condemning the respondent to pay certain sums therein mentioned, with interest and costs, but rejecting a further claim and demand of the appellant in the matter of assessment.

On the 11th April following, the appellant presented a petition to the Supreme Court for leave to appeal, which, according to the practice of the court, was referred to the respondent for his assent, who submitted that the appellant was entitled to his appeal on giving the security required by the appeal regulations.

(m) 1 Kn. 251.

(") 2 Mo. P. C. Ca. 199.

(°) 2 Moore's P. C. Ca. 93..

No security was given by the appellant until the 11th day of August following, more than three months after the date of the petition for leave to appeal.

By an order in council of the 20th June, 1831, it was ordered, among other things, that appeals from the colony of Berbice were to be made subject to the rules and limitations therein mentioned, and after providing that the appellant should, within 14 days next after the sentence should have been pronounced, apply to the court by petition, for leave to appeal therefrom to his Majesty, his heirs, and successors, in council, and providing that security should be given by the appellant for the prosecution of the appeal, and for payment of all such costs as might be awarded by his Majesty, his heirs, and successors, to the respondent, and that the court from which any such appeal should be brought, should, subject to the conditions thereinafter mentioned, determine the nature, amount, and sufficiency of the several securities to be taken, and providing that the security to be given by the appellant should in no case exceed the sum of 3001. sterling, and should be given in the manner therein mentioned, it was provided by the eleventh of such rules, sec. 25, that "If the security to be given by the party or parties appellant for the prosecution of the appeal, and for the payment of such costs as may be awarded, shall in manner aforesaid be completed within three months from the date of the petition for leave to appeal, then, and not otherwise, the court from which such appeal is brought shall make an order, allowing such appeal, and the party or parties appellant shall be at liberty to prefer and prosecute his, her, or their appeal to his Majesty, his heirs and successors, in his or their Privy Council, in such manner and under such rules as are observed in appeals made to his Majesty in Council, from his plantations or colonies."

The respondent objected to the admission of the appeal in the court below, on the ground of the irregularity in not completing the security within the time prescribed; but, notwithstanding, the court below permitted the appeal to proceed, and the appellant subsequently proceeded to execute his part of the sentence against the respondent. No appeal was asserted by the respondent against the permission thus given for the appellant to proceed, notwithstanding his default, or against the execution of the sentence by the respondent; and the appellant having lodged his appeal in the Privy Council, and obtained the usual order, the respondent appeared, and brought in his printed case. The cause being ripe for hearing, and about to come on, the respondent presented a petition, setting forth the circumstances above mentioned, and praying that the appeal might be dismissed.

Dr. Lushington and Mr. Seton moved, on the part of the respondent, to dismiss the appeal, and insisted that the 11th rule, sec. 25, of the orders in council of 20th June, 1831, respecting the time limited for giving security for the prosecution of the appeal, was imperative, and that the court below had no power to extend the time, on the expectation that security might be given. They cited Starkey v. Lapslie, (P) decided by

(P) On appeal from the Supreme Court for the District of Demerara and Essequibo: Starkey, appellant, and Lapslie, respondent.

In this case the respondent presented a petition for the dismissal of an appeal then pending, on the ground of non-compliance with the 11th rule, sec. 25, of the orders in council of 20th June, 1831, prescribing the time for completing the security for costs after date of the petition for leave to appeal.

On the 28th February, 1832, the court below pronounced judgment in two causes wherein the respondent was plaintiff and the appellant defendant.

On the 9th March 1832, the appellant presented his petition for leave to appeal from the sentences in both causes.

On the 15th June, 1832, the notary public in the registrar's office certified that no security had been given by or on behalf of the appellant for the prosecution of the appeal and payment

of costs.

Notwithstanding the above default, the Supreme Court of Demerara and Essequibo proceeded to make certain orders purporting to grant permission to the appellant to prosecute his appeal, and in the month of January, 1833, he lodged his petition in this court; whereupon