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Restrictions on appeal.
APPEALS. 111.-(1.) Except by leave of the Court, there shall be no appeal to the Court of Appeal from any order made by consent, or as to costs only.
(2.) No appeal to the Court of Appeal shall be brought from any order relating to property when it is apparent from the proceedings that the money or money's worth involved does not exceed 501., unless by leave of the Court.
(3.) No appeal shall be brought in respect of the omission by the Court appealed from to exercise any discretionary power, unless the Court shall in its judgment, or on application made at the hearing, have expressly refused to exercise such power, in which case the refusal may be made a ground of appeal.
Cf. section 104.
Time for appeal.
112. Subject to the powers of the Court of Appeal to extend the time under special circumstances, no appeal to the Court of Appeal from any order of the Court shall be brought after the expiration of twenty-one days. The said period shall be calculated from the time at which the order is signed, entered, or otherwise perfected; or, in the case of the refusal of an application, from the date of such refusal.
See section 141 and Rule 3, from which it appears that Sundays, &c. are included; but in the case of the last day for appealing falling on a Sunday, &c., the appeal will be in time if entered on the next business day.
The corresponding rule (143) of the Rules of 1870 was held not to apply to cases of fraud. (Ex p. Baum, 7 Ch. D. 719.)
If the circumstances of the case should render it just and reasonable, the Court will grant leave to appeal, even after the twenty-one days have elapsed. (Ex p. Geisel, re Stanger, 22 Ch. D. 436.) If the appellant does not appear the respondent will be entitled to have the appeal dismissed with costs, without proof that he has been served with notice of appeal. (Ex p. Lows, 7 Ch. D. 160.) It would seem doubtful whether this rule applies to the case of a third party affected by the order. (Ex p. Learoyd, re Foulds, 10 Ch. D. 3; Ex p. Tucker, 12 Ch. D. 308 ; but see Ex p. Wigg, re Johnson, 12 Ch. D. 905.)
Where an appellant had been ordered to give security for costs, and failing so to do the respondent gave notice of motion to dismiss the appeal for want of prosecution, and afterwards, but before the motion to dismiss was heard, the security was given, it was held that the appellant must pay the costs of the motion to dismiss before the appeal could be heard. (Ex p. Isaacs, re Baum, 10 Ch. D. 1.)
113. At or before the time of entering an appeal, the party R. 113intending to appeal shall lodge in the High Court the sum of 115. 201. to satisfy, in so far as the same may extend, any costs
Security for that the appellant may be ordered to pay.
Provided that the costs of Court of Appeal may in any special case increase or diminish appeal. the amount of such security or dispense therewith.
No application to increase the deposit can be heard after the appeal has been entered and the ordinary sum deposited. (Ex p. Lovering, re Thorpe, L. R. 15 Eq. 291.). A country solicitor personally attending an appeal is entitled, on taxation, to the charges and expenses thereby incurred. (Ex p. Foster, re Dickens, 8 Ch. D. 598.)
114. Upon entering an appeal, a copy of the notice of appeal Notice of shall forthwith be sent by the appellant to.the Registrar of the appeal. Court appealed from, who shall mark thereon the date when received and forthwith file the same with the proceedings, and a similar notice shall be delivered by the appellant to each respondent four days before the day on which he intends to move.
“Forthwith " meant, under the corresponding Rules of the Act of 1869, at all events where the appeal was not entered till the twenty-first day, as soon as possible after entry of the appeal under the circumstances of the case. (Ex p. Sillence, 7 Ch. D. 238; Ex p. Donnithorne, re Green, 40 L. T. 660; Ex p. Lamb, re Southam, 19 Ch. D. 169; Ex p. Lyon, 45 L. T. 768 ; Ex p. Williams, re Jones, 46 L. T. 242.) The effect of the rule is, not that the appellant cannot move after the four days, but that the respondent shall have at least four days in which to prepare to oppose the motion. (Ex p. Lückes, re Wood, L. R. 7 Ch. 302.) The four days need not, under the Rules of 1869, have fallen within the twenty-one days given for appealing. (Ex p. Saffery, re Lambert, 5 Ch. D. 365; Re Ambrose Tin and Copper Co., Taylor's Cuse, 8 Ch. D. 643.). Appealing, however, under the Judicature Act Rules, which by Rule 116 are to apply, means giving notice to your opponent of your intention to appeal, by serving on him a notice of appeal. (Ex p. Viney, re Gilbert, 4 Ch. D. 794.) It is presumed that the entry of appeal must be made within the twenty-one days, although there is not among the present rules a rule corresponding to Rule 143 of the Rules of 1870, requiring the appeal to be entered within and not later than twenty-one days, for it would seem that entering the appeal is an essential part of appealing,” and as such must be done within the twenty-one days. If not, the above cited cases as to the meaning of “ forthwith,” which proceeded very largely on the object of Rule 144 of the Rules of 1870, will be less direct authorities.
115. The Registrar of the Court appealed from shall, upon File of prothe application of the senior Registrar of the High Court, ceedings. transmit to him the file of proceedings in the matter under appeal.
116. Subject to the foregoing Rules appeals to the Court of Appeal shall be regulated by the Rules of the Supreme Court for the time being in force in relation to such appeals.
See R. S. C. 1883, Ord. LVIII., and note to section 104, ante, pp. 310, 312.
Procedure on appeals.
Form of declaration.
PART II.-PROCEEDINGS FROM ACT OF BANK
RUPTCY TO DISCHARGE. DECLARATION OF INABILITY TO PAY DEBTS. 117. A declaration by a debtor of his inability to pay his debts shall be dated, signed, and witnessed, and shall be in the Form No. 3 in the Appendix, with such variations, if any, as circumstances may require. The witness shall be a solicitor, or justice of the peace, or an official receiver or registrar of the Court.
Cf. section 4 (f), section 8.
What Court to issue.
BANKRUPTCY NOTICE. 118.-(1.) A bankruptcy notice shall be in the Form No. 6 in the Appendix, with such variations as circumstances may require.
(2.) A bankruptcy notice may be issued by any Court in which a bankruptcy petition against the debtor might be filed.
(3.) A bankruptcy notice shall not be invalid by reason that it is issued by a wrong Court, but in such case the Court may, if it think fit, on the application of the debtor, order the notice to be set aside on such terms as to costs or other. wise as may seem just.
Cf. section 4 (g).
Issue of notice.
119. A creditor, desirous that a bankruptcy notice may be issued, shall produce to the Registrar an office copy of the judgment on which the notice is founded and file the notice, together with a request for issue, which shall be in Form No. 5 in the Appendix, with such variations as circumstances may require.
The creditor shall at the same time lodge with the Registrar two copies of the bankruptcy notice to be sealed and issued for service.
120.-(1.) Every bankruptcy notice shall be indorsed with R. 120the name and place of business of the solicitor actually 124. suing out the same, or if no solicitor be employed, with a memo- Indorsement randum that it is sued out by the creditor in person.
&c. (2.) There shall also be îndorsed on every bankruptcy notice an intimation to the debtor that if he has a counterclaim, set-off, or cross demand which equals or exceeds the amount of the judgment debt, and which he could not have set up in the action in which the judgment was obtained, he must within the time specified in the notice file an affidavit to that effect with the Registrar.
(3.) In the case of a notice served in England the time shall be three days. In the case of a notice served elsewhere the Registrar, when issuing the notice, shall fix the time.
121. The filing of such affidavit shall operate as an applica- Application tion to set aside the bankruptcy notice, and thereupon the to set aside. Registrar shall fix a day for hearing the application, and not less than three days before the day so fixed shall give notice thereof both to the debtor and the creditor, and their respective solicitors, if known. If the application cannot be heard until after the expiration of the time specified in the notice as the day on which the act of bankruptcy will be complete, the Registrar shall extend the time, and no act of bankruptcy shall be deemed to have been committed under the notice until the application has been heard and determined.
122. Subject to the power of the Court to extend the time, Duration of a bankruptcy notice to be served in England shall be served notice. within one month from the issue thereof.
123. A bankruptcy notice shall be served, and service Service of thereof shall be proved in the like manner as is by these notice. Rules prescribed for the service of a creditor's petition. See post, p. 412.
124. When the Court makes an order setting aside the Setting aside bankruptcy notice it may at the same time declare that no act notice. of bankruptcy has been committed by the debtor under such notice.
BANKRUPTCY PETITION. 129.
125. Every petition shall be fairly written or printed, or Form of poti. partly written and partly printed, and no alterations, intertion.
lineations, or erasures shall be made without the leave of the Registrar except so far as may be necessary to adapt a printed form to the circumstances of the particular case. A debtor's petition shall be in Form No. 4, and a creditor's petition shall bo in Form No. 10 in the Appendix, with such variations as circumstances may require.
Cf. Nections 6, 7, 8.
Place for filing potition.
126. Where a debtor has for the greater part of six months next preceding the presentation of a bankruptcy petition, carried on business within the district of one Court and resided within the district of another Court, the petition shall bo filed in the Court within the district of which he has carried on business.
Cf. section 96.
Deposit by petitioner.
127. Every bankruptcy petition shall be attested. If it be attested in England the witness must be a solicitor or justice of the peace or an official receiver or registrar of the Court. If it be attested out of England the witness must be a judge or magistrate or a British consul or vice-consul or a notary public.
128.-(1.) Upon the presentation of a petition either by the debtor or by a creditor the petitioner shall deposit with the official receiver the sum of five pounds, and such further sum (if any) as the Court may from time to time direct, to cover the foes and expenses to be incurred by the official receiver.
(2.) The official receiver shall account for the money so deposited to the creditor, or, as the case may be, to the debtor's estate, and any sum so paid by a petitioning creditor shall be repaid to him out of the first net proceeds of the estate.
Security for costs.
CREDITOR'S PETITION. 129. A petitioning creditor who is resident abroad, or whose estate is vested in a trustee under any law relating to bank