CHAPTER XIV.

PROCEEDINGS BY WAY OF APPEAL,

RE-HEARING, REVIEWING, OR TAKING THE OPINION OF THE

JUDGE.

We here propose to direct attention to all the proceedings by which the opinion of any chief clerk or judge may be canvassed by way of appeal or otherwise. By the Order of 11th November, 1862, rule 74, it is provided, that the general practice of the Court, including the course of proceedings and practice at the Judge's chambers, as provided by the stat. 15 & 16 Vict. c. 80, and the General Orders of the Court relative thereto, shall, in cases not provided for by Companies Act, 1862, or those rules, and so far as the same are applicable and not inconsistent with the said Act and rules, apply to all proceedings for winding up a Company.

Judge.

To begin therefore at the lowest stage, the pro- Opinion of ceedings in chambers, we find that the opinion of the Judge may be taken in chambers during the progress of any matter upon any question raised before the chief clerk. For this, no summons whatever is required, but it is an inherent right in every suitor under sect. 33 of the 15 & 16 Vict. c. 80 (See Morgan's Chancery Acts

and Orders, p. 147.) The suitor is not obliged however, to take that course, but he may wait till the certificate of the chief clerk is made, and after it is signed by the chief clerk and within four days from such time he may take out a summons to obtain the opinion of the Judge upon any question he may wish to raise. See rule 56 and Consolidated Orders, No. 35, Rule 49. If he allows such four days to elapse, he may take out a summons or move the Court by way of motion to vary or discharge the certificate within eight days after the filing thereof. (See Consolidated Orders 35, Rules 51, 52.) It has been held that objections to the chief clerk's finding, should be taken at once in chambers, and before the certificate is made (Parr v. Lovegrove, 6 W. R. 201); and, as observed in Chap. XI., it is usual to issue a summons at once to remove a name from the list of contributories, and it is also the practice so to issue a summons on other matters and take the question to the Judge without waiting for the certificate.

Should, however, an order be applied for in chambers as to which it is desired to obtain the opinion of a superior Court, the course to be taken is as follows. On the chief clerk expressing an opinion on the question, or without such opinion if the parties agree, the suitor should get the matter or special summons at once adjourned to the Judge in chambers or in Court, the general practice

Court above.

being, that if more than one counsel is to attend, the matter is adjourned into Court, but V. C. Stuart will not hear any counsel in chambers. The matter having thus been brought before the Appeal to Judge personally, the appeal lies from his order, whether made in chambers or in Court, to the Lord Chancellor or Lords Justices. The order is drawn up in chambers, unless directed by the Judge to be drawn up by the registrar. If the matter has been decided in Court, and the order is to be drawn up in chambers, the registrar will give a note of the terms of the order made, to the chief clerk upon the application of the solicitor, and the order is drawn up accordingly.

The time for appealing against an order is Time. three weeks after it has been made, unless such time is extended by the Court of Appeal, but it is sufficient if notice of the appeal is given within such three weeks. The time runs during the Vacation. This is provided for by the following section of the Act:

124. Rehearings of and appeals from any order or deci- Appeals from sion made or given in the matter of the winding up of a orders. Company by any Court having jurisdiction under this Act, may be had in the same manner and subject to the same conditions in and subject to which appeals may be had from any order or decision of the same Court in cases within its ordinary jurisdiction; subject to this restriction, that no such rehearing or appeal shall be heard unless notice of the same is given within three weeks after any order complained of has been made, in manner in which notices of appeal are ordinarily given, according to the practice of the Court appealed from, unless such time is extended by the Court of

Motion.

Petition of appeal.

appeal: Provided that it shall be lawful for the Lord Warden of the Stannaries, by a special or general order, to remit at once any appeal allowed and regularly lodged with him against any order or decision of the Vice Warden made in the matter of a winding up to the Court of appeal in Chancery, which Court shall thereupon hear and determine such appeal, and have power to require all such certificates of the Vice Warden, records of proceedings below, documents, and papers as the Lord Warden would or might have required upon the hearing of such appeal, and to exercise all other the jurisdiction and powers of the Lord Warden specified in the Act of Parliament passed in the 18th year of the reign of Her present Majesty, chap. 32, and any order so made by the Court of appeal in Chancery shall be final, without any further appeal.

In The Risca Coal Mining Company (10 W. R. L. C. 701), it was decided that the order is made on the day it is pronounced, not on the day it is dated, and the time for appealing, therefore, begins to run from the former day. It may here be remarked, that sect. 99 of the Winding up Act, 1848, which limited the time for appealing against any order or proceeding before the Master, to fourteen days, is not re-enacted.

The appeal is made by way of motion to reverse or vary the order, or by petition of appeal to the Lord Chancellor. A motion is the usual course; it is set down for hearing by the registrar at the order of course seat in the registrar's office, on production of the order complained of, and a copy of the notice of motion which is filed. The notice must be served on the opposite party two clear days before the day named for hearing. A petition of appeal is not usually presented. For

the practice on such a petition, see Smith's Chancery Practice, p. 483, and Morgan's Chancery Acts and Orders, p. 504.

The appeal is placed on the paper of the Lord Chancellor or Lords Justices, accordingly as it may be determined, and is then disposed of.

Lords.

From the decision of the Lord Chancellor or House of Lords Justices, an appeal may be made to the House of Lords.

By sect. 124, above quoted, it is enacted that Rehearing. no rehearing shall be had, unless notice thereof be given within the same time as an appeal is Time. to be made, namely, three weeks from the time. the order in the matter which is to be reheard is made. A rehearing is obtained upon a petition presented in the same way, and set down for hearing on the same conditions as a petition of appeal.

Except with regard to the time allowed for the purpose, as stated above, the practice on a petition for a rehearing, is the same as in an ordinary Chancery suit, and therefore for more complete details the reader is referred to the Consolidated Order, No. 31, to the 15 & 16 Vict. c. 80, and to Smith's Chancery Practice and Morgan's Chancery Acts and Orders.

decisions.

The Court has power to review any of its pro- Reviewing ceedings upon an application supported by fresh evidence, and upon it being satisfactorily shewn that the evidence could not have been ad