Application Partly Refused and Partly be done to anyone, the Granted.]-On appeal by the plaintiff from an tended. Tippett, Ex order made upon an application to unseal certain 2 M. B. R. 229-C. A. books and documents which was partly refused and partly granted, the defendants objected that, though the appeal was brought within twenty-one days of the drawing up of the order embodying the decision appealed from, it was not within twenty-one days from the date of the decision itself, and therefore the appeal was out of time-Held, that, as the matters decided were not clearly severable, the objection failed. Jones v. Andrews, 58 L. T. 601-C. A.

b. From what Period Time runs. Two different Periods.]-See two preceding

cases.

Where an interlocuto from chambers has been by the judge, an appeal lated by the general orde cutory appeals; and it m the confirmation takes th motion to vary the report such refusal is made pa court or judge, which also upon further consideration appeal after the proper ti reasonable doubt as to th O'Donnell v. O'Donnell, I

Special Grounds-Comp ing-up Petition.]-The sl pany passed an extraordin was void, the majority of up the company voluntari not being entitled to vote petition in the Chancery C Lancaster for a supervisio pulsory winding-up order, the petitioner were ignoran

Refusal of Application-Special Direction as to Costs.]-Where an application to a judge is refused, and the judge adds special directions as to the payment of the costs, that is a refusal of the application within the meaning of Ord. LVIII. r. 15, and the time for appeal runs from the date of the refusal. not from the drawing-up of the order. Smith, In re, Hooper v. Smith, 26 Ch. D. 614; 53 L. J., Ch. 1149; 33 W. R. 18-resolution was invalid, a s C. A.

Appeal when "Brought."]-At the trial of an action on the 23rd of June, 1884, judgment of nonsuit was given. The judgment was entered on the 2nd of July, 1884. The plaintiffs served a notice of appeal on the 22nd of June, 1885; the appeal was not entered till the 4th of July, 1885-Held, that the appeal was "brought when the notice of appeal was served on the defendant, and that, as this was done within a year from the pronouncing of the judgment, the appeal was in time. Christopher v. Croll, 16 Q. B. D. 66; 55 L. J., Q. B. 78; 53 L. T. 655; 34 W. R. 134-C. A.

c. Extension of Time.

made. Five months after discovered the invalidity o then moved before the Vice supervision order might b compulsory winding-up orde having been refused by the the ground of want of juris petition, the petitioner appea of the motion, and also app Appeal for leave to appeal order notwithstanding the 1 application for leave to app the executors of a previous transferred their testator's s bility less than twelve mon senting of the original petit twelve months before the ca Court of Appeal, on the grou were now made on the ori would be made liable under the Companies Act, 1862appeal, notwithstanding the 1 to be given, the mistake as to resolution forming a specia application, and the respor equity to resist it. Observa ciple on which the court g time for appeal. New Calla 484), approved. Manchester Society, In re, 24 Ch. D. 488;

Where some Parties have Appealed.]-Three of six directors sold their shares to the company and received the price out of the funds of the company. In the winding-up of the company an order was made upon the six directors jointly and severally to replace these sums, with liberty to the three who had not received them to apply as to the liability of those who had. On the last day for appealing the three who had received the sums appealed from the order, without the knowledge of the other three :-Held, that leave to appeal after time ought to be given to the other three. Clayton Mills Manufacturing | 49 L. T. 793; 32 W. R. 325-( Company, In re, 37 Ch. D. 28; 57 L. J., Ch. 325; 58 L. T. 317-C. A.

Doubts as to Practice-Interlocutory Order.] -On an appeal from the refusal by the registrar of the application of the debtor for leave to summon a fresh first meeting of his creditors, the objection was taken that the appeal was out of time. The appellant's solicitor deposed that he had mistaken the effect of the rules, and was of opinion that the time for appealing ran from the date of the perfecting of the order, instead of the date when it was pronounced :-Held, that the order appealed from was in the nature of an interlocutory order, and as no harm could

Informal Notice given withi twenty-one days from the allowing a creditor's claim in action the defendant gave a fo appeal. After the time for a pired the respondent wrote to s was bad, as it ought to have days' notice. The appellant notice of motion for leave to of appeal by substituting th period for that of four. At thi fourteen days from the service appeal had passed :-Held, th appeal was bad, for that it oug

anyone, the time would now be ex"ippett, Ex parte, Tippett, Ia re, 229-C. A.

n interlocutory report or certificate >ers has been made up, and confirmed e, an appeal lies, and is to be regu general order dealing with interloals; and it makes no difference that tion takes the form of a refusal of a ry the report or certificate, and that

is made part of an order of the re, which also contains a final decree consideration. Leave was given to the proper time, where there was a oubt as to the practice applicable. O'Donnell, 13 L. R., Ir. 226-C. A,

ounds-Company-Order on Windon.]-The shareholders in a comin extraordinary resolution to wind any voluntarily, but the resolution majority of members who voted itled to vote. A creditor filed a e Chancery Court of the Duchy of a supervision order, or for a comg-up order, and as the court and were ignorant of the fact that the invalid, a supervision order was months afterwards the petitioner invalidity of the resolution, and fore the Vice-Chancellor that the ler might be discharged, and s ding-up order made. This motion fused by the Vice-Chancellor on rant of jurisdiction to rehear the itioner appealed from the refusal and also applied to the Court of e to appeal against the original anding the lapse of time. The leave to appeal was opposed by f a previous member, who had r testator's shares to escape liatwelve months before the preriginal petition, but more than efore the case came before the on the ground that if an order on the original petition they iable under the 38th section of Act, 1862 :-Held, that leave to anding the lapse of time, ought mistake as to the validity of the ng a special ground for the the respondents having no

t.

Observations on the prin he court grants extension of New Callao, In re (22 Ch. D. Manchester Economic Building Ch. D. 488; 53 L. J., Ch. 115; .R. 325-C. A.

iven within Time.]-Within om the date of an order claim in an administration gave a four days' notice of me for appealing had exrote to say that the notice to have been a fourteen pellant thereupon gave ave to amend his notice ing the fourteen days' At this time more than service of the notice of ld, that the notice of t ought to have been a

fourteen days' notice, and that leave to amend | have been granted if the applicant had show
it in the way proposed ought not to be given that until the return of nulla bona he had r
after the fourteen days, but as the applicant had reasonable evidence of the appellant's insolvency
given a distinct notice of appeal in proper time, Pooley's Trustee v. Whetham (No. 2), 33 Ch. 1
the time for appealing ought to be extended. 76; 56 L. J., Ch. 41; 55 L. T. 462-C. A.
Crosley or Crosby, In re, Munns v. Burn, 34
Ch. D. 664; 56 L. J., Ch. 509; 56 L. T. 103; 35
W. R. 294-C. A.

5. NOTICE OF APPEAL.

Length of Notice-Waiver.]-Where a summons in an administration action was heard and determined on the 9th June, and the notice of appeal served on 20th June:-Held, upon a preliminary objection, that as the respondent had appeared he had waived the irregularity of the notice. Me Rae, In re, Forster v. Davis, 25 Ch. D. 19; 32 W. R. 304-C. A.

Motion and Appeal in Paper on sam Day.]-Notice of appeal from an interlocutor order was served on 8th of February. On th 10th of February the respondent gave notice motion for security for costs. The appeal m tion and the motion for security came into th paper on the 16th. Poverty was sufficientl established, and it was also sworn to and no denied that the person really promoting th appeal was a person of substance :-Held, tha security ought to be given. Pooley's Trustee Whetham (33 Ch. D. 76) distinguished. Cloug In re, Bradford Commercial Banking Compan v. Cure, 35 Ch. D. 7; 56 L. J., Ch. 338; 56 1 T. 104; 35 W. R. 353-C. A.

Order for security for costs made although th appeal was in that day's paper for hearing, ther having been no delay in making the applicatio except a slight delay which was attributable the appellant. Ellis v. Stewart, 35 Ch. D. 459 57 L. T. 30—C. A.

In what Cases-Order striking Solicitor of Roll.]-Whether the court will require a sol citor who is insolvent to give security for th costs of an appeal against an order striking hi But where such an order off the roll, quære.

Service-On former Solicitor.]-By order on further consideration the defendant was ordered to pay money into court, which was then to be carried to the credit of an action for administering the estate of a testator whose executrix was the plaintiff in the present action. The defendant went abroad without complying with the order. On appeal the order was varied by ordering the defendant to pay the money to the plaintiff, who was then to pay it into court in the administration action, such an order being capable of being better enforced against the defendant's property than the order as originally framed. The notice of appeal was served on the defendant's solicitors, who stated that they had ceased to act for him, but they were still his solicitor on the record :-Held, that as the order on further consideration had not been worked out, they still represented him, and that service of the notice on them was good service. Whether the solicitors on the record do not conExecutor-Set-off.]-In an administr tinue to represent their client until the ex- tion action P. was found to be heir-at-law. K piration of the time allowed for appealing, who claimed to be heir, appealed against th quære. De la Pole v. Dick, 29 Ch. D. 351; decision. P. then died, and K. revived again 54 L. J., Ch. 940; 52 L. T. 457; 33 W. R. 585-H., his executor and devisee in trust. H. a C. A.

not the whole order, but comprises other dire tions, and the solicitor appeals against the who order, then the general rule applies, and if i solvent he will be required to give securit Strong, In re (No. 2), 31 Ch. D. 273; 55 L. J., C 506; 54 L. T. 219; 34 W. R. 420-C. A.

plied for security for the costs of the appeal o the ground of K.'s proved insolvency. K. r

Notice of Motion-Day in Vacation.]-Seesisted on the ground that P. had been ordered
PRACTICE (MOTIONS).

6. SECURITY FOR COSTS.

pay to him the costs of a previous appeal, whic were of sufficient amount to be a security:Held, that if P. had been the respondent th would have been a sufficient answer, but th

be indemnified, and that security must be give Knight, In re, Knight v. Gardner, 38 Ch. 1 108; 58 L. T. 699-C. A.

Time when Application should be Made.]-H. being only a representative was entitled Notice of appeal from dismissal of an action was served by the plaintiff on the 1st of March. On the 5th of June a defendant gave notice of motion for security for costs, supporting it by an affidavit that on the 1st of June writs of fi. fa. for costs payable to him by the appellant had been issued to which the sheriff returned nulla bona; but the affidavit did not state that the applicant had not up to that time any reasonable evidence of the appellant's insolvency. The appellant's briefs had been delivered and the fees paid on the 22nd of May, and on the 10th of June, when the application was heard, the appeal was only two out of the paper :-Held, that although there was such evidence of insolvency that an order for security would have been made if applied for in due time, the application must be refused as having been made too late, when the appellant had incurred all the costs of the appeal, though it might even then

Special Circumstances.]-An appella may be ordered to give security for the costs of a appeal where a primâ facie case of abuse of th process of the court has been made out. Welde V. Maples, 20 Q. B. D. 331; 57 L. J., Q. B. 224 57 L. T. 672; 36 W. R. 154-C. A.

Inference of Insolvency.] - Where plaintiff in an action had been served with bankruptcy notice by the defendant, with th terms of which he had not complied, the cou inferred, in absence of evidence to the contrar that he was insolvent, and directed him i give security for the costs of an appeal. Nixo v. Sheldon, 50 L. J.. Ch. 624; 50 L. T. 245C. A.

C

Bankruptcy of Appellants-Bankrupts of April, and then m personally interested in Action.]-An injunction under the judgment p was granted restraining the defendants from was refused by Chitty, making instruments infringing the plaintiffs' the official referee ma patent and ordering delivery up of all instru- 14th of July, more tha ments so constructed. The defendants appealed the above refusal, the d from this decision and set down the appeal for motion before the Cour hearing, but before the appeal came on they for payment of the dan became bankrupt. No trustee was appointed, till after the hearing of but there was an official receiver. The plaintiffs tiffs took the objection t moved to have the appeal dismissed for want of not be made as an ori prosecution. The learned judge who had granted appeal motion was ou the injunction had not given the reasons for his Ord. LVIII. r. 16, gives judgment:-Held, that the bankrupts were still to the court below and interested, as the injunction restrained them as to staying proceedin from selling a particular class of machines, and that rule 17 does not tak they might be sent to prison for a breach of the diction thus given to th injunction; and it was ordered that, unless only requires that it sha within fourteen days from the learned judge an application has first giving his reasons the bankrupts gave security below, and that the app for costs or the official receiver made himself a Appeal to stay proceedi party to the proceedings, the appeal should that purpose has been without further order be dismissed. United below, is not properly Telephone Company v. Bassano, 31 Ch. D. 630; need not be brought w 55 L. J., Ch. 625; 54 L. T. 479; 34 W. R. 537- from the refusal. Attorn C. A. Improvements and Tram 46) considered. Cropper 305; 53 L. J., Ch. 170; 4 212-C. A.

New Point of Law raised.]-There is no general rule that an insolvent appellant will be exempted from giving security for the costs of the appeal because the case involves a question of law which has not been previously considered by a Court of Error. Rourke v. White Moss Colliery Company (1 C. P. D. 556) explained. Farrer v. Lacy, 28 Ch. D. 482; 54 L. J., Ch. 808; 52 L. T. 38; 33 W. R. 265-C. A.

Order not complied with-Dismissal of Appeal -Time.]-Where an order has been made for the appellant to give security for the costs of an appeal, if he does not give it within a reasonable time, the court will dismiss the appeal without giving further time, unless there are extenuating circumstances. As a general rule a period of three months is more than a reasonable time. Washburn and Moen Manufacturing Company v. Patterson, 29 Ch. D. 48; 54 L. J., Ch. 643; 52 L. T. 705; 33 W. R. 403-C. A.

Increase of Deposit-Special circumstances.] -Protracted litigation in regard to the same matter held a ground for increasing the deposit to secure costs on appeal. McHenry, In re, 17 Q. B. D. 351; 55 L. J., Q. B. 496; 35 W. R. 20 -C. A.

7. STAYING PROCEEDINGS PENDING APPEAL.

Jurisdiction of Master.]-A master has jurisdiction under Ord. LVIII. r. 16, to stay execution on a judgment pending an appeal to the Court of Appeal. Oppert v. Beaumont, 18 Q. B. D. 435; 56 L. J., Q. B. 216; 35 W. R. 266C. A.

Refusal by Court below-Time for Application to Court of Appeal.]-In an action by patentees judgment was given referring it to the official referee to assess the damages occasioned to the plaintiffs by the defendants' infringement, and ordering payment within twenty-one days after service of the report. The defendants appealed, and set down their appeal on the 18th

Payment out of Fund i the absence of special circ practice of the court to r an appeal a fund which 1 paid out, because there i order. An order directin fund out of court to the made just before the co Long Vacation, and an ap sented, a suspension of t granted over the Long Vacat the appellant to apply to On appeal, it being show had been abroad for two applicant could not discov held that payment out ougl applicant would give securit tiff interest at 4 per cent. c of the funds in court, and plaintiff, if the appeal w difference between the hig the investments at any time of the appeal and their mar of the hearing of the appeal. Falconar's Trusts, In re, 28 Ch. 368; 51 L. T. 550; 33 V

Grounds of Application power to stay execution pe purely discretionary, and ma proper case though the appl upon affidavit. Execution 1 an appeal by a railway co from an order refusing a new of their lodging in court verdict and a sum to cover application was not groun stating special circumstances. (14 Q. B. D. 769) distinguis Cork Steam Packet Company Ex. D.

Costs of Summons-Power order Sum to be paid out of

ginal contention on the hearing of the respon- | upon a point not argued dent's appeal. The Beeswing, 10 P. D. 18; 54 not enough to entitle th L. J., P. 7; 51 L. T. 883; 33 W. R. 319; 5 Asp. of the appeal. Games M. C. 335-C. A. 517; 33 W. R. 64-C. A. Where the Court of A

Power to Amend Order.]-See PRACTICE of the Admiralty Division (ORDER ).

Amendment of Notice of Motion.]-A defence delivered after the expiration of the time limited by the rules cannot be treated as a nullity. Where, therefore, the court, treating such a defence as a nullity, had, upon a motion for judgment in default of delivering a defence (Ord. XXIX. r. 10, Rules of 1875), given a judgment for foreclosure, the Court of Appeal held the judgment improperly given. But as the defence substantially admitted the plaintiff's claim, the Court of Appeal, under Ord. LVIII. r. 4 (Rules of 1883), ordered the notice of motion to be amended, and the notice being treated as amended, gave judgment for the plaintiff upon admissions in the defence. Gill v. Woodfin, 25 Ch. D. 707; 53 L. J., Ch. 617; 50 L. T. 490; 32 W. R. 393-C. A.

Effect of equally divided Judgment.]-The Court of Appeal is not bound by a decision of its own where that decision was come to by reason of the judges who heard the case being equally divided in opinion. The Vera Cruz, 9 P. D. 96; 53 L. J., P. 33; 51 L. T. 104; 32 W. R. 783; 5 Asp. M. C. 270-C. A.

only is to blame for a coll blame, no order will be in the Court of Appeal or each party will pay his litigation. The Hector ( 48 L. T. 890; 5 Asp. M. C

Payment of, out of Fu a fund is the subject of an unsuccessful appeal ou occasions, to come out of be borne by the unsuccessf In re, Barton v. Spencer, L. T. 95; 35 W. R. 737-C

Several Parties Appea Where a number of parti terests, have appeared by below, and an appeal is bro all parties having similar in appellant should join, or t party alone, as but one: allowed them against the ap is dismissed. Cernwall v. 595-C. A.

Copies of Documents for three judges in the Court o be provided with a copy of (such as a copy of a will, which is in question) and t copies should be allowed by Randell, In re, Hood v. R C. A.

Reviewing Findings of Fact by Judge below.] -Where the testimony of a witness as to a material fact was not shaken at the trial on cross-examination, and was believed by the judge who saw and heard the witness, the Court of Appeal will not differ from the conclusion at which the judge arrived at as to the nature of that evidence, although if it had been on affidavit, the court might not have treated it as satisfactory. Smith v. Land and House Pro-shorthand writer's notes of the perty Corporation, 28 Ch. D. 7-C. A.

S. P. Cleather v. Twisden, 28 Ch. D. 353; 52 L. T. 330-C. A.

On the evidence before the Court of Appeal, one of the judges would have come to the contrary conclusion, but that the finding of the president, who had seen and heard the witnesses, ought not to be reversed. Wright v. Sanderson, Sanderson, In re, 9 P. D. 149; 53 L. J., P. 49; 50 L. T. 769; 32 W. R. 560; 48 J. P. 180-C. A. Per Cotton, L. J.

Shorthand Notes-Judgme costs of appeal will includ

from, unless otherwise specia phery v. Sumner, 55 L. T. 64

It is unnecessary for a suc make special application for costs of the shorthand writer ment of the court below. M v. Morgan, 35 Ch. D. 492-C.

Entering Judgment instead of Ordering New and expenses." Trial.]-See ante, col. 22.

10. COSTS OF THE APPEAL.

No Note of Judgment of Court below.]-A decision on the construction of a will was reversed on appeal, but the court, on the ground that it was not furnished with any information as to the reasons given by the judge for his decision, refused to make any order as to the costs of the appeal. Mc Connell, In re, Saunders v. Mc Connell, 29 Ch. D. 76; 52 L. T. 80; 33 W. R. 359-C. A.

Judgment below varied.]-Where the Court of Appeal varies an order of the court below

Evidence-Trustees. brought by a beneficiary un trustees, and was dismissed defendants being allowed the The taxing allowed the costs of the shorth of the evidence. The plaintif the hearing of the appeal us the shorthand-writer's notes. had a copy of the notes, but w Counsel for the trustees asked notes, but the lords justices ref as party and party costs agai but added: "It may be these in costs, charges, and expenses. no opinion." The taxing-ma costs of the notes:-Held that of the costs of the notes by t when taxing the costs of the in the court below, did not affe to their allowance in taxing th peal:-Held further,that the use