20 ts for a stay of the order pending the House of Lords; the applica d on their undertaking to present in a week and to duly prosecute e deeds should be deposited in h, on the ground that if the duced their deeds, the appeal S. Emmerson v. Ind, 55 L. J, T. 422; 34 W. R. 778—C. A. as to staying execution pending the Court of Appeal to the n actions in the Queen's Bench High Court applies to Admiralty et that bail has been given in an in rem is not a special ground ution pending an appeal from ppeal to the House of Lords, 11 P. D. 114; 55 L. J., P. 62; W. R. 647; 6 Asp. M. C, 50 on, where to be made.]-An stay of execution pending an buse of Lords from the Court in all cases to be made to peal. Hamill v. Lilley, 19 L. J., Q. B. 337; 56 L. T. 620 ; A. r Costs of Foreign Respondent] into court by a foreign plaincosts will not, after he has action, be ordered to remain an appeal by the defendant, 56 L. T. 620-C.A. ppellant-Effect of.]-Where s a question of the appellant's of Lords will allow it to be withstanding the bankruptcy G. v. M., 10 App, Cas. 171– Pauperis Public Rightpon a petition for leave to l in formâ pauperis, it aptioner sought as one of the right of fishing in a tidal belonging to the defender, ons had been collected to r in the litigation :—Held, stances the application could Bowie v. Ailsa (Marquis), 8 L. J., P. C. 7; 60 L. T. of Session-How far concluLords is bound by the facts of Session, and cannot look ced by either party in that Clydesdale Banking Co., 9 Sc.). Law of any part of the It is not competent for the ivest themselves of their the law of any part of the gh the point may arise in ☛ part of the United Kingbeen argued in the court a domiciled Irish woman, t legal guardian, married passing of the Infants' 21 APPEAL-To the Court of Appeal. Settlement Act (18 & 19 Vict. c. 43), a domiciled | to repay Costs on Reversal of Judgment.]— Scotchman, An ante-nuptial settlement was action being dismissed at the hearing with co executed. After the death of her husband she a sum of money which had been paid into co commenced the present action in the Scotch as security for the defendants' costs was orde courts to set aside the settlement. No evidence to be paid out to the solicitors for the defenda was given as to the capacity of an infant to exe-in part payment of the defendants' costs. T cute a binding contract by the law of Ireland: judgment was reversed by the Court of App -Held, that the point being raised in the and the costs ordered to be paid by the def pleadings, the House must take judicial notice dants. The plaintiffs asked for an order agai that by the law of Ireland the settlement was the defendants' solicitors for repayment not binding on the appellant, without regard to them :-Held, that the court had no jurisdict whether any, or what, evidence of the law of on the appeal to order the defendants' solicit Ireland, as a matter of fact, had been given in to refund the money, the solicitors not be the court below; and further, that the validity present. Nor, semble, could such an order ha of the settlement was not affected by the fact been made if they had been served with not that at the time of its execution both parties of the application. Lydney and Wigpool I contemplated a Scottish domicile during their Ore Co. v. Bird, 33 Ch. D. 85; 55 L. T. 55 married life. Cooper v. Cooper, 13 App. Cas. 34 W. R. 749-C. A. 88; 59 L. T. 1-H. L. (Sc.). Costs-Point not raised below.]-Where an appeal succeeds upon a point not raised in the court below, the appellant will not get costs. Ib. II. TO THE COURT OF APPEAL. 1. Jurisdiction. 2. In what Cases Appeal lies. d. In other Matters, 3. Parties to Appeal. To enter Judgment instead of ordering N Trial.]-On the appeal from the order of divisional court, upon an application for a n trial, the Court of Appeal has power, un Ord. LVIII. r. 4, if all the facts are before court, to give judgment for the party in wh favour the verdict ought to have been giv instead of directing a new trial. Millar Toulmin, 17 Q. B. D. 603; 55 L. J., Q. B. 44 34 W. R. 695-C. A. Quære, whether on appeal from an or of a divisional court upon an application fo new trial on the ground of the verdict be against the weight of evidence, the Court Appeal has power to give judgment for appellants instead of directing a new tr 4. Time within which Appeal must be brought. Millar v. Toulmin (17 Q. B. D. 603) doubt a. In what cases. b. From what Period Time runs. c. Extension of Time, 5. Notice of Appeal. 6. Security for Costs. 7. Staying Proceedings pending Appeal. 9. Hearing of the Appeal. 1. JURISDICTION. To Strike Solicitor off Rolls not by way of Appeal.]-On the hearing of an appeal from a decision in the County Palatine Court, the attention of the Court of Appeal was called to the evidence given by a solicitor in the court below, from which it appeared that he had been guilty of gross misconduct in his character of solicitor with regard to a mortgage on which a question arose in the action. The Court of Appeal directed the official solicitor to take proceedings against him. The official solicitor moved the court for an order calling on the solicitor to explain his conduct or that he should be struck off the roll. The solicitor took no notice of the application : -Held, that the court had jurisdiction to entertain the application; but, having regard to the circumstances of the case, and that the solicitor had not taken out a certificate for several years, the court did not order him to be struck off the roll, or suspend him, but granted an injunction restraining him from renewing his certificate without the leave of the court. Whitehead, In re, 28 Ch. D. 614; 54 L. J., Ch. 796; 52 L. T. 703; 33 W. R. 601—C. A. Toulmin v. Millar, 12 App. Cas. 746; 57 L. Patent Certificate - Particulars of Obj tion.]-In an action for infringement of patent, the defendant disputed its validi delivered particulars of objections, stating grounds, and adduced evidence in supp thereof. At the trial judgment was given favour of the plaintiff, and the validity of patent was upheld. On appeal this judgm was reversed and the patent was declared valid. The defendant, the successful appella applied to the Court of Appeal for a certific under s. 29, sub-s. (6) of the Patents Act, 18 that the particulars of objection delivered him were reasonable and proper :-Held, t the Court of Appeal, having power to ma such order as ought to have been made in first instance, had power to grant-and un the circumstances of the case, would gran such certificate. Cole v. Saqui, 40 Ch. D. 1: 58 L. J. Ch. 237; 59 L. T. 877; 37 W. R. C. A. 2. IN WHAT CASES APPEAL LIES. a. Criminal Cause or Matter. Property obtained by False Pretences-Pov to order Restitution.]-By 24 & 25 Vict. c. s. 100, if any person guilty (inter alia) of obta ing any property by false pretences is convic thereof, in such case the property shall be stored to the owner or his representative, and every such case the court before whom any si person shall be tried shall have power to or To order Solicitors of successful Party below the restitution thereof in a summary mani Certiorari-Indictment. The Queen's Bench Division having discharged such refusal. Brosnan, a rule for a certiorari to remove an order for 334-C. A. restitution made under the above section :Held, that the order of the Queen's Bench Division was a judgment "in a criminal cause the Court of Appeal fro or matter" within s. 47 of the Judicature Act, Queen's Bench Division 1873, and that there was no appeal to the Court to remove an indictme of Appeal. Reg. v. Central Criminal Court Criminal Court under 1 Justices, 18 Q. B. D. 314; 56 L. J., M. C. 25; Reg. v. Rudge, 16 Q. B. D 56 L. T. 352; 35 W. R. 243; 51 J. P. 229; 16 112; 53 L. T. 851; 34 W. Cox, C. C. 196-C. A. -C. A. Habeas Corpus.]-An order of the Queen's Bench Division, refusing to grant a writ of habeas corpus ad subjiciendum was not a judgment in a criminal cause or matter, and therefore an appeal from the order was competent. Keller, In re, 22 L. R., Ir. 158-C. A. Extradition Proceedings.]-The Queen's Bench Division having refused an application for a writ of habeas corpus made on behalf of a person who had been committed to prison under s. 10 of the Extradition Act, 1870, as a fugitive criminal accused of an extradition crime :Held, that the decision of the Queen's Bench Division was given in a "criminal cause or matter within the meaning of s. 47 of the Judicature Act, 1873, and therefore that no appeal would lie to the Court of Appeal. Woodhall, Ex parte, or Woodall, In re, 20 Q. B. D. 832; 57 L. J., M. C. 71; 59 L. T. 841; 36 W. R. 655; 52 J. P. 581-C. A. Whether the Court of Appeal has any jurisdiction to entertain an appeal from the refusal of a divisional court to issue a writ of habeas corpus, on the application of a person who has been arrested for an alleged extradition crime, quære. Reg. v. Weil, 9 Q. B. D. 701; 53 L. J., M. C. 74; 47 L. T. 630; 31 W. R. 60; 15 Cox, C. C. 189-C. A. Order striking Solicitor off the Rolls.]-When the High Court makes an order ordering a solicitor to be struck off the rolls for misconduct, it does so in exercise of a disciplinary jurisdiction over its own officers, and not of a jurisdiction in any criminal cause or matter within the meaning of s. 47 of the Judicature Act, 1873, and therefore an appeal lies from such order to the Court of Appeal. Hardwick, In re, 12 Q. B. D. 148; 53 L. J., Q. B. 64; 49 L. T. 584; 32 W. R. 191 -C. A. Refusal of Justices to state Case.]---Under the Judicature Act, 1877, there is no appeal to the Court of Appeal in a criminal case, except for error on the record. B. was convicted at Petty Sessions before a court of summary jurisdiction, and sentenced to one month's imprisonment. He applied to the magistrates to state a case for the opinion of the court. Upon their refusal to do so he applied for a rule, calling upon the justices to show cause why such case should not be stated. The court refused to make the order, and B. appealed to the Court of Appeal :- Held, that the refusal of the Queen's Bench Division to make the order applied for was a judgment in a criminal cause or matter within the meaning of section 50 of the Act; and that the Court of Appeal had no jurisdiction to entertain an appeal from Information by Attorney mentary Oaths Act, 1866.]— information at the suit of the against a member of the Hou voting without having taken ance within the meaning of Oaths Act, 1866, as amended Oaths Act, 1868, judgment Crown, and the Divisional Cou tion and misreception of evide a rule for a new trial, on the g tion by the defendant to the O Held, that the Court of Appe hear the application and to gr such a case.-By Brett, M.R., Cotton, L.J., doubting, an in suit of the Attorney-General to under s. 5 of the Parliamentar from a member of Parliament f having taken the oath of alleg that statute, as amended by the Act, 1868, is not a "criminal c within the meaning of the S Judicature Act, s. 47, and an brought from any order or judg the High Court to the Court Brett, M.R., on the ground that is in its nature a civil proceedin that an appeal lies under the S Judicature Act, 1873, s. 19:-E on the ground that even althou tion may be to some extent of a nevertheless before the passing Court of Judicature Acts, 1873, would have lain under the Cr 1865 (28 & 29 Vict. c. 104), ss. 31 decision of the Court of Excheq of Exchequer Chamber, and tha Court of Judicature Acts, 1873, 11 away any right of appeal exist passing of those statutes.-Sem M.R., that even if the informati garded as a criminal proceeding, appeal would lie, for by the Sup Judicature Act, 1873, s. 47, the r is taken away only in the case of criminal informations for indi meanors filed in the Queen's Benc 24 prisoner applied for bail to a rt of the Queen's Bench Division ed; he then appealed to the Court Held, that the decision of the divias a judgment of the High Court matter, and therefore that the al had no jurisdiction to entertain Reg. v. Foote, 10 Q. B. D. 378; 52 ; 48 L. T. 394; 31 W. R. 490; 48 ox, C. C. 240—C. A. -Non-repair of Highway.]-St Highway Board v. Curzon, post, by Attorney-General-Parlis- - information could be re- 25 25 APPEAL-To the Court of Appeal. of crimina proceedings before justices. At-been taken away by the Appellate Jurisdic torney-General v. Bradlaugh, 14 Q. B. D. 667; Act, 1876, s. 20. Crush v. Turner (3 Ex. D.3 51 L. J., Q, B. 205; 52 L. T. 589; 33 W. R. 673 approved. Thomas v. Kelly, 13 App. Cas. -C. A. 58 L. J., Q. B. 66; 60 L. T. 114; 37 W. R. 35 H. L. (E.) b. In Interpleader Proceedings. Appeal from Judgment and Motion for New Trial-After the trial of an interpleader issue the judge before whom the issue was tried gave judgment for the plaintiff on the finding of the jury, and gave the defendant leave to appeal: Held, that the defendant, having obtained leave, was entitled, under Ord. LVII. r. 11, to appeal against the judgment, and that, by Ord. XL. r. 5, the appeal ought to be to the divisional court, and therefore that both the application for a new trial and the appeal from the judgment ought to be entertained on the merits by the Court of Appeal on appeal from the divisional court. Robinson v. Tucker, 14 Q. B. D. 371; 53 L. J., Q. B. 317; 50 L. T. 380; 32 W. R. 697 -C. A. Appeal from Judgment of Judge at Trial.] -Where it is sought to impeach the judgment of a judge on the trial of an interpleader issue with respect only to the finding of the facts or the ruling of the law, and not with respect to the final disposal of the whole matter of the interpleader proceedings, an appeal will lie from such judgment under s. 19 of the Judicature Act, 1873, as it will from any other judgment or order of a judge. Dawson v. Fox, or Fox v. Smith, 14 Q. B. D. 377; 54 L, J., Q. B. 299; 33 W. R. 514-C. A. Summary Decision.]-By the combined operation of the Common Law Procedure Act, 1860, s. 17, and of the Appellate Jurisdiction Act, 1876, s. 20, no appeal lies to the Court of Appeal from a decision of the Queen's Bench Division upon an appeal from the summary decision at chambers of an interpleader summons, and Ord. LVII. r. 11, does not confer any power to give leave to appeal. Waterhouse v. Gilbert, 15 Q. B. D. 569; 54 L. J., Q. B. 440; 52 L. T. 784 -C. A. c. On Cases Stated. Under Highway Act-Quarter Sessions. An appeal lies without leave from a judgmen the Queen's Bench Division on a special stated by quarter sessions pursuant to the H way Act, 1835, s. 108, as the Queen's Be Division, in giving judgment on such a c exercises its own original common law juris tion, and not any new statutory appellate juris tion. Illingworth v. Bulmer East High Board, 53 L. J., M. C. 60; 32 W. R. 450-C Agreement Judge's Order-Poor-rate.]appeal will lie to the Court of Appeal from decision of the Queen's Bench Division upo case stated under 12 & 13 Vict. c. 45, s. 11, in appeal against a poor-rate; for the decision the Queen's Bench Division is an "ord within the meaning of the Supreme Court Judicature Act, 1873, s. 19. Peterboro Corporation v. Wilsthorpe Overseers, 12 Q. B 1 ; 53 L. J., M. C. 33 ; 50 L. T. 189; 32 W. 458; 48 J. P. 373-C. A. Under 12 & 13 Vict. c. 45, s. 11.]-An app lies to the Court of Appeal from the decision the divisional court upon a case stated un 12 & 13 Vict. c. 45, s. Î1, on an appeal from order of justices to the quarter sessions, it being a decision of the divisional court on appeal from petty or quarter sessions within meaning of s. 45 of the Judicature Act, 1 and it being an "order" within s. 19 of act. Holborn Union v. Chertsey Union, Q. B. D. 76; 54 L. J., M. C. 137; 53 L. T. 6 33 W. R. 698; 50 J. P. 36—C. A. Bankruptcy-County Court Judge.]—An peal will lie to the Court of Appeal from decision of the High Court on special case sta by a county court judge under s. 97, subof the Bankruptcy Act, 1883. Dawes, Ex pa Moon, In re, 17 Q. B. D. 275; 55 L. T. 114; W. R. 752; 3 M. B. R. 105—C. A. Under Ord. LVII. r. 11, no appeal lies, unless by special leave, from the divisional court to the Court of Appeal, in respect of the decision of an interpleader summons in a summary way under Ord. LVII. r. 8. Waterhouse v. Gilbert (15 Under Summary Jurisdiction Act, 1879, s Q. B. D. 569), followed. Bryant v. Reading, 17-Highway.]-An appeal lies to the Cour Q. B. D. 128; 55 L. J., Q. B. 253; 54 L. T. 524 ; | Appeal from the judgment of the Que 34 W. R. 496-C. A. Appeal by Sheriff.]-When the court or a judge decides summarily, under ss. 14 and 17 of the Common Law Procedure Act, 1860, the sheriff is not a party so as to be concluded by the decision, but may appeal therefrom. Smith v. Darlow, 26 Ch. D. 605; 53 L. J., Ch. 696; 50 L. T. 571; 32 W. R. 665—C. A. Bench Division upon a special case stated un s. 33 of the Summary Jurisdiction Act, 1879 proceedings before justices for the non-repai a highway, the judgment not being" a judgm in any criminal cause or matter" within s of the Judicature Act, 1873. Loughboro Highway Board v. Curzon, 17 Q. B, D, 3 55 L. T. 50; 50 J. P. 788-C. A, By Railway Commissioners.]-There is Proceedings transferred to County Court.]-appeal to the Court of Appeal from the decis Interpleader proceedings were transferred under of a divisional court upon a case stated by the Judicature Act, 1884, s. 17, from the Queen's Railway Commissioners under s. 26 of the Bench Division to a county court. On appeal gulation of Railways Act, 1873, even tho from the judgment of the county court the leave to appeal has been given. Sect. 45 of Queen's Bench Division affirmed that judgment, Judicature Act, 1873, does not apply to app but gave leave to appeal to the Court of Appeal from the Railway Commissioners. Hall -Held, that the Court of Appeal had jurisdic- London, Brighton, and South Coast Railu tion under the Judicature Act, 1873, s. 45, to 17 Q. B. D. 230; 55 L. J., Q. B. 328; 54 L. hear the appeal, that jurisdiction not having | 713; 34 W. R. 558; 5 Nev. & Mac. 28—C. A. d. In other Matters. Where party has confor below.]-A plaintiff signed Trial at Bar.]-An appeal lies to the Court of of delivery of defence wh Appeal from any order or judgment made or set aside upon the defend given by the Queen's Bench Division either during sum into court; the defe or afterwards with respect to a trial at bar of a paying into the court the civil proceeding, and whether or not the appeal by paying the money into is brought from a decision upon a motion for a had not so availed himself new trial on the ground of misdirection or wrong-divisional court as to be pr ful reception of evidence; but the appeal must ing. Anlaby v. Prætorius be brought on by notice of motion, an ex parte L. J., Q. B. 287; 58 L. T. application for a rule nisi to the Court of Appeal being irregular. Attorney-General v. Bradlaugh, ante, col. 25. Judgment by Default.]-The Court of Appeal has jurisdiction to entertain an appeal from a judgment given on default; but the proper course to be taken by the party against whom such judgment has been given is for him to apply in the first instance to the judge who gave the judgment to restore the action. Vint v. Hudspeth, 29 Ch. D. 322; 54 L. J., Ch. 844; 52 L. T. 741; 33 W. R. 738-C. A. Municipal Election Petition-Leave Given.]Notwithstanding s. 93, sub-s. 7, of the Municipal Corporations Act, 1882, which enacts that the decision of the High Court upon a petition questioning municipal election shall be final; nevertheless an appeal, if leave be given, lies from a judgment of the Queen's Bench Division upon a petition of that nature to the Court of Appeal, owing to s. 242 of the statute above mentioned, which in effect incorporates the Supreme Court of Judicature Act, 1881, s. 14, whereby in certain cases an appeal is allowed from the High Court of Justice to the Court of Appeal, if special leave be given. Line v. Warren, 14 Q. B. D. 548; 54 L. J., Q. B. 291; 53 L. T. 446-C. A. Habeas Corpus.]-Section 19 of the Judicature Act, 1873, gives an appeal from orders made by the High Court of Justice on application for habeas corpus, whether the order grants or refuses the writ. Cox, Ex parte, 20 Q. B. D. 1; 57 L. J., Q. B. 98; 58 L. T. 323; 36 W. R. 209 -C. A. Patent-Certificate of Validity.]-By s. 31 of the Patents, Designs, and Trades Marks Act, 1883, in an action for infringement of a patent, the court or a judge may certify that the validity of the patent came in question :-Held, that such a certificate is not a judgment or order against which an appeal lies to the Court of Appeal under s. 19 of the Judicature Act, 1873. Haslam Engineering Company v. Hall, 20 Q. B. D. 491; 57 L. J., Q. B. 352; 59 L. T. 102; 36 W. R. 407-C. A. Under Debtors Act.]-The jurisdiction of the High Court under s. 5 of the Debtors Act, 1869, has been, by virtue of s. 103 of the Bankruptcy Act, 1883, and orders under it assigned to the judge in bankruptcy, and the exercise of it delegated to the bankruptcy registrars. An appeal from an order of a registrar, approved by the judge in bankruptcy, will therefore not lie to the divisional court, but will be regulated by s. 104 of the Bankruptcy Act. Genese, Ex parte, Lascellas, In re, 53 L. J., Q. B. 578; 32 W. R. 794; 1 M. B. R. 183-D, C. A. From Discretion of Cour an appeal lies from the exe the judge in the court bel Appeal will only interfere has decided on a matter n tion; (2) when his assume exercised on wrong princip great loss will be occasi erroneous exercise of discret Corporation, In re, 56 L. T. When a winding-up ord petitions, there is no rule wh the judge making the order of it to the petitioner who petition. He has a discretio petitioners shall have it. exercise of that discretion is but the Court of Appeal will appeals. Cunningham & Co 246; 50 L. T. 246-C. A. Winding up of Buildin BUILDING SOCIETY. 3. PARTIES TO In formâ pauperis.]-Wh not sued or defended as a p below, applies for leave t pauperis, the court will f Ord. XVI. rr. 22, 23, and 2 practice as to such appeals. suing without a next friend being a party, applied for formâ pauperis :-Held, tha well as herself must make th by rule 22. Roberts, In r (No. 2), 33 Ch. D. 265; 35 W Liquidator-Removal of. ]has been removed by a judge: his removal. Charlesworth, Eyton, In re, 36 Ch. D. 299; 57 L. T. 899; 36 W. R. 275 Executor-Residuary Lega been filed against executors inquiries and directions, and th ordered that the conduct of t transferred from the survivin residuary legatee, that service proceedings upon the execut pensed with, and directed certain other inquiries deper being directed to stand over being returned to the first-men further inquiry was ordered. the residuary legatee appeal appeal the court refused to allo executor to be heard. De M Ch. D. 268; 33 W. R. 846-C. IES TO APPEAL. is.]-Where a party who has led as a pauper in the court leave to appeal in formå rt will follow by analogy 23, and 24, and not the old appeals. A married woman ext friend, her husband not lied for leave to appeal in Held, that her husband as make the affidavit required rts, In re, Kiff v. Roberts 65; 35 W. R. 176-C. A. oval of.]-A liquidator who ya judge may appeal against lesworth, Ex parte, Adam . D. 299; 57 L. J., Ch. 127; R. 275-C. A. ary Legatee.]-A bill had xecutors asking for certain ons, and the court ultimately duct of the cause should be e surviving executor to the at service of all notices or e executor should be disdirected certain inquiries, ies dependent upon them and over. Upon answers first-mentioned inquiries a rdered. Against this order Upon this e appealed. ed to allow counsel for the De Mora v. Concha, 29 846-C. A. -Creditor's Administration Action-Appeal ditor in an administration action is consid by Person not a Party.]-D., the residuary legatee as interlocutory for the purpose of determi of Mrs. Y., brought her action for administration the time within which an appeal must of Mrs. Y.'s estate against R., the surviving brought, for other purposes it is a final or executor. Mrs. Y. had been the surviving exe- and therefore fresh evidence cannot be give catrix of her husband. V., one of the residuary the appeal without the special leave of the c legatees of the husband, shortly afterwards Compton, In re, Norton v. Compton, 27 C brought her action against R. as sole defendant, 392; 51 L. T. 277; 33 W. R. 160-C. A. for administration of the husband's estate, alleging breaches of trust by Mrs. Y., and asking Interpleader Issue.]-The judgmen administration of her estate if R., as her repre- the divisional court, affirming the judgmen sentative, did not admit assets to pay what a county court judge in an interpleader i should be found due from her estate to the transferred to the county court under s husband's estate. On the 28th February, 1885, of the Judicature Act, 1884, is a "final ord V. moved for judgment. There was no evidence within Ord. LVIII. r. 3. Hughes v. Little before the court that Mrs. Y. was indebted to Q. B. D. 32; 56 L. J., Q. B. 96; 55 L. T. her husband's estate, or that she had been guilty 35 W. R. 36-C. A. of wilful neglect and default. R., by his counsel, admitted that she was so indebted, and he subReview of Taxation.]-An appeal 1 mitted to a judgment directing an account of personal estate of the husband which she had brought within twenty-one days. Phillips an order directing a review of taxation mus received, or but for her wilful neglect or default might have received, with an inquiry as to parte, Watson, In re, 19 Q. B. D. 234; 56 I balances in her hands, and directing adminis-Q. B. 619; 57 L. T. 215-C. A. tration of her estate. It appeared that, from information R. had received, he felt sure that Mrs. Y. would be found a debtor to her husband's LVIII. r. 15, an order in the ordinary form estate, and that wilful default would be esta- foreclosure judgment, made under Ord. XV blished against her, and that it was not advisable for the purpose of an appeal from it, to to incur the expense of contesting these points treated as a final order, and it can be appe at the hearing. D., on the 26th of June, 1885, from at any time within a year, and the ap moved before Pearson, J., under Ord. XVI., r. 40, can be heard though, since the notice was ser to discharge or vary the judgment of February, the foreclosure has been made absolute. S 1885. This motion was refused on the ground. Davies, 31 Ch. D. 595; 55 L. J., Ch. 496 that D. had not been served with the judgment. L. T. 478-C. A. D. appealed from this refusal, and also applied for leave to appeal from the judgment:-Held, that leave cannot be given to a residuary legatee mons taken out under Örd. XV. r. 3, is a to appeal from a decree made against the exe-proceeding commenced otherwise than by cutor at the suit of a creditor, as the executor in manner prescribed by a rule of court, ar completely represents the estate for the purposes consequently an action within the definition of such a suit, and the residuary legatee could that word in s. 100 of the Judicature Act, not be made a party to the suit, and the case is Therefore an order made upon such a summ quite different from one where leave to appeal is appealable at any time within one year is applied for by a person who, though not its date. Fawsitt, In re, Galland v. Burton according to the present practice a necessary Ch. D. 231; 54 L. J., Ch. 1131; 55 L. J., Ch. party to the suit, would have been a proper 53 L. T. 271; 34 W. R. 26-C. A. party to it. Held, further, that the application An originating summons under Ord. LV. of June, 1885, to vary the judgment was not is an action within the meaning of the Jud supported by Ord. XVI., r. 40, the case not ture Act, 1873, s. 100, and therefore it is n falling within that rule, which only applies to "matter not being an action" within cases where service of an order is necessary in LVIII. r. 15. An appeal, therefore, can order to make it binding, whereas here the order brought from an order made on such a summ was binding without service, and D. was not a within a year from the date of the order. proper person to be served. Youngs, In re, don's Trusts, In re, 55 L. J., Ch. 259-C. A. Doggett v. Revett, Vollum v. Revett, 30 Ch. D. 421; 53 L. T. 682; 33 W. R. 880-C. A. Originating Summons.]-An originating s Order on Further Consideration and on S mons to Vary Certificate.]-Where an order made on further consideration and another o ing a summons to vary the certificate on w the order on further consideration was m and the two orders were separately drawn u consecutive days :-Held, that there was in stance only one order, and consequently Ord. LVIII. r. 15 (a), applied, and that the for appealing would be the same as the tim appealing against the order on further consid tion. The object of that rule was to get ri the anomaly of having two different period time for appealing where a summons to and further consideration were heard toget Marsland v. Hole, 40 Ch. D. 110; 59 L. T. 37 W. R. 81-C. A. |