v. any gross negligence: that this was not a case in which the Court DREVER would make him personally liable to make good the loss which had MAudesley. arisen from the bankers' default. Mr. Koe and Mr. Renshaw, in support of the VICE-CHANCELLOR'S order, contended that there was nothing in this case which prevented the receiver from acting with perfect regularity in passing his accounts; that he had received interest on the balance in the bankers' hands; and that therefore, as he had personally made use of this money, he must be held responsible for it. The following authorities were referred to: Wren v. Kirton (1), Potts v. Leighton (2), Bainbrigge v. Blair (3). Mr. Bethell replied. The LORD CHANCELLOR said, that with regard to the account up to Lady Day, 1840, the receiver was clearly in default in not passing his account in proper time; but as to the account up to Lady Day, 1841, the receiver was not guilty of any default, and was not chargeable on that ground. But as he took the benefit of the interest which the bankers allowed on the balance, he must also be responsible for the loss which had arisen. He should not, therefore, make any variation in the VICE-CHANCELLOR'S order, except as to the costs, which he thought ought not to fall upon the receiver, but should be costs in the cause. (1) 8 R. R. 174 (11 Ves. 377). (2) 53 R. R. 24 (11 Ves. 273). (3) 52 R. R. 171 (3 Beav. 421). 1843. Nov. 7. Appeal from Decision of Revising Barrister (1). West Riding of Yorkshire. [1] [ *2] IN THE COURT OF COMMON PLEAS. AUTEY v. TOPHAM. (5 Man. & G. 1-4; S. C. 7 Scott, N. R. 402; 13 L. J. C. P. 39; 7 Jur. 995; 1 Lutw. R. C. 1; Barr. & Arn. 1.) Where the statement of the case by the Revising Barrister and the notice of intention to prosecute the appeal have not been sent to the Masters within the four first days of Michaelmas Term, the Court will not, except under peculiar circumstances, allow the appeal to be entered. SHEE, Serjt. applied, on behalf of the appellant, that the appeal in this case might be entered by one of the Masters, under sect. 62 of the Registration Act (2). By that section, the appellant was required within the four first days of Michaelmas Term, to transmit to the Masters the case, as stated by the Revising Barrister, together with a notice to prosecute the appeal. The affidavits stated that the case and notice had only arrived from Leeds by that day's post, and that the delay had been merely accidental. (TINDAL, Ch. J. referred to sect. 64 of the Act (3).) (1) Under the provisions of the Registration Act, 6 & 7 Vict. c. 18. (2) Enacting, "That every appellant who shall intend to prosecute his appeal shall, within the first four days in the Michaelmas Term next after the decision to which such appeal shall relate, transmit to the Masters of the said Court of Common Pleas the statement in writing so signed by the said Revising Barrister as aforesaid, and shall also therewith give or send a notice, signed by him, stating therein his intention to prosecute the said appeal; and the said appellant shall also give or send a notice, signed by him, to the respondent in the said appeal, stating his said intention duly to prosecute such appeal in the said Court; and one of the Masters of the said Court, to be nominated for that purpose by the Lord Chief Justice of the said Court, shall forthwith enter every appeal of which he shall have received due notice from the appellant as aforesaid, in a book to be kept by him for that purpose." [See 51 & 52 Vict. c. 10, s. 6.] (3) By sect. 64 it is enacted, "That no appeal or matter of appeal whatsoever shall in any case, except where the conduct and direction of the appeal, or of the answer thereto, shall have been given by order of the Court of Common Pleas, or of any Judge thereof, to any person, be entertained or heard by the said Court, unless notice shall have been given by the appellant to the Masters of the said Court at the time and in the manner herein before mentioned; and no appeal shall be heard by the said Court in any case where the said respondent shall not appear, unless the said appellant shall prove that due notice of his intention to prosecute such appeal was given or sent to the said respondent ten days at least before the day appointed for the hearing of such appeal: provided always, that if it shall appear to the said Court that there has not been reasonable time to give or send such notice in any case, it shall be lawful for the said Court to postpone the hearing of the appeal in such case, as to the said Court shall seem meet." The learned Serjeant submitted that the statute had been virtually complied with. The appellant is not required to enter the case within the four first days of the Term, but merely to transmit it to the Masters. The statement was, in fact, transmitted by yesterday's post. Dowling, Serjt., for the respondent, was willing to consent that the appeal should be received and entered. *The words of the Act are directory, and not compulsory. In the case of Simpson, appellant, and Wilkinson, respondent, the Court yesterday-the fourth day of the Term,-granted leave to extend the time for sending the notice to the Masters under the sixty-second section, upon an affidavit of the clerk to the agents of the appellant, that the case had been received by that morning's post, but that the notice of prosecution did not accompany the case; and that, as the appellant resided at Peterborough, in Northamptonshire, his signature to the notice could not be obtained in time to file the appeal and give the notice within the time specified. TINDAL, Ch. J.: The sixty-second section of the Act requires the case to be transmitted, together with notice of intention to prosecute the appeal, within the first four days of the Term. The sixty-fourth section expressly provides that no appeal shall be heard unless the requisite notice has been given. The notice not having been given in this case, the Court has no authority to order the appeal to be entered. Possibly a case may arise, where in consequence of circumstances of an inevitable nature having occurred, the Court would think it right to interfere; but none such are suggested here. In the case referred to of Simpson, appellant, and Wilkinson, respondent, the sixty-fourth section was not brought before the notice of the Court. We shall probably have to review that decision (1). It is said that the words of the Act are only directory; and if the case (1) Northern Division of the County of Northampton. SIMPSON v. WILKINSON. The statement in writing by the Revising Barrister is duly transmitted to the Masters, but the notice of intention to prosecute the appeal is not sent in time: Held, that the appeal cannot be entered. An affidavit by the clerk of the attorney to the appellant, stating AFTER the decision in the principal Whereupon Byles, Serjt. for the AUTEY v. TOPHAM. [ *3] [4] AUTEY V. TOPHAM. [5] stood on the sixty-second section alone, possibly we might so have held; but the words of the sixty-fourth section are not to be got over. As to the consent on the part of the respondent, that the appeal may now be entered, the Court cannot attend to that. The question. is, whether we have any jurisdiction to entertain the case. The jurisdiction is a new one conferred by the Legislature; and the more wholesome course will be, not to extend that jurisdiction, even with the consent of parties; otherwise we might be called upon in the next, or some future Term, to entertain a case which ought to have been entered in this Term. * The other Judges concurring, the application was Refused. 1843. Nov. 23. Appeal from Revising Barrister. Northern Division County of Warwick. [ 14 ] JOHN WEBB v. OVERSEERS OF ASTON JUXTA (5 Man. & G. 14-32; S. C. 13 L. J. C. P. 57; 7 Scott, N. R. 545; 7 Jur. 1090.) Where in the statement of a case by the Revising Barrister a material fact is omitted, the Court will not allow it to be supplied by consent. He TINDAL, Ch. J.: The proviso at the end of the sixtyfourth section clearly refers to the notice therein last mentioned, which is the notice to the respondent, required to be given ten days before the day appointed for the hearing. The notice to the Master is like the delivery of a writ of error with the transcript of the record to the clerk of the Court, which is necessary in order to give jurisdiction to the Court of Error. An affidavit by an attorney's clerk, that the notice had not arrived, can hardly be treated as a substitute for the notice itself. Where a case is remitted to the Revising Barrister (under sect. 65) in order that it may be more fully stated, the course is for the Master to appellant, prayed the Court that the appeal might be retained on the list. He distinguished it from the principal case, inasmuch as the statement had been sent within the first four days of Term, although the notice had not accompanied it; whereas in the principal case neither had been sent. submitted, that by the sixty-fourth section a power was reserved to the Court to make an order as to the conduct and direction of the appeal. And that by the proviso at the end of that section, the Court might postpone the hearing of the appeal where there had not been reasonable time to give or send the requisite notice. The notice was not required by the sixty-second section to be under the hand of the appellant. It was required to be signed by him. A signature by an agent would be sufficient. And the affidavit upon which the application MAULE, J.: The exception in the sixty-fourth section, as to the conduct and direction of appeals, applies to appeals consolidated under the forty-fifth section. The other Judges concurring, the case was struck out of the list of appeals. return it to the appellant with a note of the facts to be supplied, and for the appellant to transmit the same to the Revising Barrister. A lessee of several houses (all locally situate within a borough) for the residue of a term of not less than sixty years, one such house being of sufficient value to confer a vote for the borough under 2 Will. IV. c. 45, s. 27, if the remaining houses are each of less than that value, but collectively of more, is not deprived by sect. 25 of his right to vote for the county under sect. 20, in respect of such remaining houses. THIS was a consolidated appeal under the 6 & 7 Vict. c. 18, s. 44. Mellor, for the respondents, when the case was called on (1), claimed the right to begin, comparing it to a special case from Sessions. TINDAL, Ch. J.: In a case from Sessions, the party who seeks to set aside the order of the justices, is in the situation of a party showing cause against a rule. This is more in the nature of an appeal to the Privy Council, where the appellant always begins. F. Robinson, for the appellant, then read the case as follows: William Hickman was objected to as not being entitled to have his name retained upon the list of voters for the division, in respect of property situate within the parish of Aston juxta Birmingham. The Revising Barrister retained the name, subject to the opinion of the Court of Common Pleas upon the following case. William Hickman was the lessee of a term originally created for ninety-nine years, of which three years had expired. The lease comprised several houses, the aggregate annual value of which was 2201. All the property was situate within the parish of Aston juxta Birmingham, and also within the borough of Birmingham. One house was worth more than 101. a year, and the remainder were each respectively worth less than 10l. a year. Each house was occupied by a distinct tenant, and in no case was any land occupied jointly with a house. The particulars of the qualification were stated to be "lease of houses and buildings for years." Hickman was examined, and stated that he relied (2) upon those which individually would be worth less than 10l. a year, but collectively were worth more than that amount. It was contended, on the part of the objector, that under the 2 Will. IV. c. 45, s. 25, Hickman had no right to a county (1) Monday, November 13. (2) Quare, whether the claim, which is the act of the party, does not import the assertion of a title to county WEBB V. ASTON. [15] |