APPEALS.

Statement and notice

to be sent to the Court, and notice to the party.

No appeal to be heard unless no

the Court.

mit to the Masters of the C. P. Division, within the first four days of Michaelmas Term, the statement in writing, signed by the revising barrister (i) and shall also therewith give or send a notice signed by him (k), stating his intention to prosecute the said appeal. He must also give or send a similar notice to the respondent. The Master is forthwith to enter every appeal, of which he shall have received such notice, in a book to be kept by him for that purpose; s. 62.

No appeal will be heard unless such notice has been given by the appellant to the Masters, except where the conduct of the case tices sent to has been given (under s. 45), to any person by order of the Court or a judge; s. 64 (1). Nor will an appeal be heard if the respondent does not appear, unless notice has been given to the respondent. Ibid (m). See post, p. 171.

Where neither the statement nor the notice had been transmitted to the Master within the four days (7), the Court refused to allow the appeal to be entered after that day, although consented to by the respondent. Autey v. Topham, infra. So where the statement was sent, but the notice was not. Simpson v. Wilkinson, 5 M. & G. 3, n.; 1 Lutw. 5; 14 L. J., C. P. 49. Nor is it any excuse that such omission was accidental. Ibid.

So where a defective statement was delivered, i.e., a statement without the indorsement of the barrister, and was refused by the Master. Wanklyn v. Woollett, supra, overruling semble, Pring v. Estcourt, 4 C. B. 70; 1 Lutw. 505; 16 L. J., C. P. 10; in

(i) Nettleton v. Burrell, 7 M. & G. 35; 1 Lutw. 157; 14 L. J., C. P. 37. Where the barrister dies without signing the case, it seems that a final approval of the case by him, but without signature, would not be sufficient. Wanklyn v. Woollett, 4 C. B. 86; 1 Lutw. 579; 16 L. J., C. P. 144. Burton v. Blake, 11 C. B. 47; 2 Lutw. 197. In Burton v. Brooks, 11 C. B. 41; 2 Lutw. 197 21 L. J., C. P. 7; the Court allowed the case to be considered as signed, on the respondent's counsel consenting that the case should be remitted to the barrister for signature, and heard the appeal; sed quare. If the Court have not jurisdiction, the consent of the parties cannot give it to them; Autey v. Topham, 5 M. & G. 1; 1 Lutw. 1; 13 L. J., C. P. 39; and see per Maule, J., Prior v. Waring, 5 C. B. 63; 2 Lutw. 45; Agnew v. Fowler, 1 Ir. L. R. (N. S.) 462. In the last case, the Court held that they had no jurisdiction to entertain an appeal, where the statement was signed after the statutable time for holding the Court of revision had elapsed. Scott v. Durant, ante, p. 168, acc.

(k) The signature of an agent will not suffice. Petherbridge v. Ash, 4 C. B. 74; 1 Lutw. 507.

(1)In the event of an application to the Court, under s. 37, to compel the barrister to state a case, this limitation of time would be extended, if necessary. Ibid.

(m) See Brumfitt v. Roberts, L. R. 5 C. P. 224; 1 H. & C. 387 ; 39 L. J., C. P. 95.

which case, due diligence having been used to obtain the barrister's indorsement within the first four days, the appeal was allowed to be entered, de bene esse, on the 5th. So, in the case of a defective notice, i.e., a notice without the appellant's signature. Petherbridge v. Ash, supra.

APPEALS.

Nor, should the respondent not appear, will the appellant be Notice to respondent. heard, unless he prove (which may be done by affidavit) that due notice of his intention to prosecute such appeal was given to the respondent ten days at least (») before the day appointed for the hearing; s. 64. See Colville v. Lewis, 2 C. B. 60; 1 Lutw. 380. And this, although the difficulty did not occur to the Court till the case was in fact part heard. Ibid. In this case the Court suspended their judgment for the production of the necessary affidavit.

And no excuse for not giving the notice will be received, as that the appellant's attorney died; Pring v. Estcourt, supra; or that the parties agreed to waive the notice; Newton v. Overseers of Moberley, 2 C. B. 205; 1 Lutw. 335; 15 L. J., C. P. 154; or to consider the notice as given; Aldworth v. Dore, 5 C. B. 89; 2 Lutw. 67; 17 L. J., C. P. 142; and see Brown v. Tamplin, L. R. 8 C. P. 241 ; 2 H. & C. 17; 42 L. J., C. P. 37.

But by appearance the respondent waives objections to the form of notice, and to the absence of it. Rawlins v. Overseers of West Derby, 2 C. B. 72; 1 Lutw. 373; 15 L. J., C. P. 70; and see Palmer v. Allen, 5 C. B. 72; 2 Lutw. 42; 18 L. J., C. P. 265; provided such appearance be an actual, and not a merely constructive one, such as an application by the respondent for leave to deliver paper books. Grover v. Bontems, 4 C. B. 70; 1 Lutw. 544; 16 L. J., C. P. 63, 64.

If, however, there has not been reasonable time to give due notice, the Court may postpone the hearing; s. 64. Burton v. Blake, 11 C. B. 47; 2 Lutw. 197. This extends to a case where, by the respondent's own act, the appellant has been induced to omit giving notice; Newton v. Overseers of Moberley, supra; and, semble, to a case where the indorsement of the barrister has not been obtained in sufficient time, if due diligence has been used; Pring v. Estcourt, supra; but not to a case where the Court has appointed an unusually early day for hearing appeals, if there has in fact been sufficient time; Adey v. Hill, 4 C. B. 38; 1 Lutw. 542; 16 L. J., C. P. 63; Luckett v. Voller, K. & G. 371 ; 31 L. J., C. P. 43. But the Court will not interpret the provision so strictly as to require notice to be given on the very day after the statement was signed. Where a statement was signed on

() That is to say, ten days exclusive of the day of servic and the day appointed for hearing. Norton v. Town Clerk o Salisbury, 4 C. B. 32; 1 Lutw. 538; 16 L. J., C. P. 9.

APPEALS.

Notice of hearing.

Practice in.

October 30th, and the appeal entered for November 11th, it was held that a reasonable time for giving notice had not elapsed. Palmer v. Allen, supra.

The appellant should be prepared with a special affidavit to bring him within the above provision. Aldworth v. Dore, supra. Public notice is to be given of the hearing of the appeals (which may be argued either in term or in vacation), and of the order in which they will be heard; s. 63.

Appeals are to be heard and determined by the Court of Common Pleas (now the Common Pleas Division of the High Court), according to the practice of that Court in hearing special cases, so far as the same may be applicable and not inconsistent with the provisions of the Act, or according to such rules as may from time to time be made; s. 60.

According, therefore, to the rules of the Court in arguing special cases, paper books must be delivered to the judges, the appellant delivering paper books to the two senior judges, and the respondent to the two junior. Allan v. Waterhouse, 1 Lutw. 92 ; 13 L. J., C. P. 129; S. C., nom. Cooper v. Coates, 5 M. & G. 98 ; but the Court will entertain a reasonable excuse for non-delivery. Palmer v. Allen, supra.

So where paper books had not been delivered, owing to the respondent's attorney being ignorant of the practice of the Court, leave was given to deliver them nunc pro tunc. Colville v. Lewis, supra. But if no such excuse be given, it seems the Court will strike out the appeal, and will not allow it to stand over. Sheddon V. Butt, 11 C. B. 27; 2 Lutw. 188. See Benesh v. Booth, 18 C. B. (N. S.) 111, n. ; 34 L. J., C. P. 99.

On the hearing the appellant is to begin, for it is not like a special case from the sessions, in which the party seeking to set aside the order is in the situation of a party showing cause against a rule, but rather like an appeal to the Privy Council, where the appellant always begins. Webb v. Overseers of Aston, 5 M. & G. 14; 1 Lutw. 6.

Only one counsel on either side will be heard. Gadsby v. burton, 7 M. & G. 13, n.; 1 Lutw. 136; 14 L. J., C. P. 41.

War

If, when the appeal is called on, no one on either side appears, the case will be struck out; nor, without sufficient cause, will the Court allow it to be restored. Wansey v. Overseers of St. Peter Le Poer, 7 M. & G. 162.

But if the respondent does not appear, the Court will not reverse the decision of the barrister without hearing the appellant. Cooper v. Town Clerk of Cambridge, 7 M. & G. 97; 1 Lutw. 207 ; Pownall v. Hood, 11 C. B. 1; 2 Lutw. 170; 21 L. J., C. P. 12. In Powell v. Caswall, 8 C. B. 15; 2 Lutw. 141, however, it was done,

and it seems may be still, if the respondent's counsel gives up the case. Jarris v. Peele, 11 C. B. 15; 2 Lutw. 182.

In White v. Pring, 8 C. B. 13 ; 2 Lutw. 182, the appellant not appearing when the case was called on, the Court affirmed the barrister's decision with costs, but it does not appear that any settled rule has been established in such cases (0).

It is not competent for the appellant to raise points not taken before the barrister. Simpson v. Wilkinson, 7 M. &. G. 50; 1 Lutw. 168; 14 L. J., C. P. 49. And no appeal is to be allowed on any question of fact, or upon the admission of evidence; s. 65. See ante, p. 168. Nor can any alterations be made in a case when once before the Court, even by consent. Webb v. Overseers of Aston, 5 M. & G. 14; 13 L. J., C. P. 57, per Tindal, C. J. The case must be remitted to the barrister. post, p. 175.

See

Strong grounds are required to induce the Court to re-open a case after judgment has been pronounced. Powell v. Caswall, supra.

APPEALS.

Practice in.

dated,

If the validity of any number of claims or objections depends Consoli upon the same point or points of law (p), and the parties, or any of them, aggrieved by the decision have given notice of appeal, the barrister may, by s. 44, declare in a written and signed statement, that such appeals ought to be consolidated, and he may name any person, interested (7) and consenting, to be the appellant or respondent respectively, on behalf of himself and the others; both appellant and respondent, or some one on their behalf, in such cases signing declarations according to the forms given in s. 44, or to the like effect (r). The name, and, where necessary, the particulars of the qualifications of every party intended to be joined in such consolidated appeal, are to be written under the above declarations. Any person interested, however, may proceed separately, subject to the payment of costs to, without receiving costs from, his opponent, unless the Court shall otherwise order; s. 45. The barrister may, by s. 44, in con

(6) The authorities on this point will be found collected in Saint's "Registration Cases," p. 236.

(p) Robson v. Brown, 1 C. P. (N. S. ) 34 ; K. & G. 67 ; 26 L. J., C. P. 81. The state of facts must also be the same. Where on the face of the case it was not so, the court dismissed the appeal, and held that they had no jurisdiction to remit the case to the barrister. Prior v. Waring, 5 C. B. 56; 2 Lutw. 45. So where consolidated appeals were presented, and some of the respondents were women; Wilson v. Town Clerk of Salford; Bennett v. Brumfitt, L. R. 4 C. P. 398, 399; 1 H. & C. 44, 48; 38 L. J., C. P. 35, 72.

(q) Whether a mere agent is such a person, quare, Wanklyn v. Woollett, 4 C. B. 86; 1 Lutw. 597; 16 L. J., C. P. 144.

(r) See Edwards v. Lang, 1 Ir. R. (R. & L. App.) 22.

Consoli dated.

APPEALS. solidated, as in single appeals, name the overseers, or the town clerk, to be respondent, and, as it appears, also without their consent (ante, p. 169). Should either of them be named, they are not required to make the above declaration, as other respondents are. The mode of proceeding in taking consolidated appeals to the Common Pleas Division is, by s. 45, the same as in single appeals; see Wanklyn v. Woollett, infra (s), and the judgment of the Court is equally binding and conclusive. But if a consolidated appeal should not be duly prosecuted or defended, the Court, or a single judge, may give to any parties interested the conduct of the case, instead of, or in addition to, the person named as appellant or respondent.

Costs of.

Where clerk

or town

By s. 70 the Court is invested with discretionary power respecting the payment of all or any part of the costs of an appeal, except where the respondent, or person named to be respondent, does not appear, in which case no costs are to be given either against or for him.

But where either the clerk of the peace or town clerk is named of the peace respondent, the Court may give costs against them although they do not appear; 41 & 42 Vict. c. 26, s. 38. And their costs, including appellants' costs, are to form part of their "expenses.” Ibid.

clerk respondent

In Simpson v. Wilkinson, 7 M. & G. 50; 1 Lutw. 178; 14 L. J., C. P. 49; it was intimated by Maule, J., that the successful party ought to have costs in all cases, but, the other judges considering the case a reasonable one for argument, costs were refused. Ace. Webb v. Overseers of Aston, 7 M. & G. 32; 1 Lutw. 18; 13 L. J., C. P. 57. In Allen v. House, 7 M. & G. 157; 1 Lutw. 255; 14 L. J., C. P. 79; it was said that where the Court heard only one side, the successful party ought to have his costs. Acc. Bishop v. Smedley, 2 C. B. 90; 1 Lutw. 384; 15 L. J., C. P. 73. But in Walker v. Payne, 1 Lutw. 324; 15 L. J., C. P. 38, though the decision was affirmed, and only one side heard, costs were refused. In the subsequent case of Croucher v. Browne, 2 C. B. 97; 1 Lutw. 388; 15 L. J., C. P. 74, it was said by way of explanation, that Bishop v. Smedley turned on facts, and the appellant made a bad case, but that Croucher v. Browne involved a question of law, and therefore costs were not given. Since that time, however, the costs of the respondent have generally followed the event. See cases collected in a note to Passingham v. Pitty, 17 C. B. 315; 25 L. J., C. P. 5; Baker v. Locke, 18 C. B. (N. S.) 64. Where the decision of the revising barrister is reversed, no costs are given. Ibid.; and see Burton v. Overseers of Aston, 8

(s) As to the indorsement of names in consolidated appeals ; see Sherwin v. Whyman, L. R. 9 C. P. 243; 2 H. & C. 185; 43 L. J., C. P. 36.