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 LAW AND PRACTICE 
 
 EELATINO TO 
 
 COUNTY COURT APPEALS 
 
 MANDAMUS, PROHIBITION, AND CERTIORARI.
 
 THE 
 
 LAW AND PEACTICE 
 
 RELATING TO 
 
 COUNTY COUkT AYPEALS: 
 
 ] RARL 
 
 BY 
 
 CHAMIER. 
 
 m 
 
 OF THEVfefNEE TEMPLE, BAEEISTEE-AT-LA'W, 
 
 Author of "Law relating toLiterary Copyright, $c." "Manual of Roman Law," 
 "Law of Lunacy in relation to Custody of the Person." 
 
 LONDON : 
 
 STEVENS AND SONS, LTD., 119 & 120, CHANCERY LANE; 
 SWEET AND MAXWELL, LTD., 3, CHANCERY LANE, 
 
 ^Cato publishers aub 
 1896
 
 
 LONDON : 
 PRINTED BY C. F. BOWOBTH, GREAT NEW STREET, FETTEE LANE, B.C.
 
 PREFACE. 
 
 THE form of Appeal by motion, which was intro- 
 duced by the Act of 1875, and adopted by its 
 successor of 1888, has not been found so simple 
 and workable as had been anticipated from a 
 procedure the avowed object of which was to 
 cheapen and facilitate Appeals from County 
 Courts. 
 
 On the one hand, no extension has, by these 
 Acts, been conferred upon an aggrieved party of 
 his right to question an adverse ruling; whilst, 
 on the other, the observance of certain formali- 
 ties has been imposed upon all litigants, which 
 not infrequently results in an appeal being 
 altogether frustrated by reason of some more 
 or less excusable error or omission in mere 
 procedure. 
 
 The following pages will, it is hoped, be 
 found to present a fair statement of the pro- 
 cedure in County Court Appeals, so far as one
 
 VI PREFACE. 
 
 can be deduced from the Statute, the Rules, and 
 the decisions, which, as will be observed, are 
 not always so consistent with each other as to 
 render it an easy task to abstract from them a 
 series of rules of general applicability. 
 
 The subjects of Mandamus, Prohibition, and 
 Certiorari have been treated in order to give 
 effect to the design of the book, which is to 
 comprise the procedure before Divisional Courts 
 in the principal branches of appellate and cor- 
 rective jurisdiction which they are empowered 
 to exercise over inferior Courts. 
 
 D. C. 
 
 2, GABDEN COURT, TEMPLE. 
 Easter, 1896.
 
 CONTENTS. 
 
 PAGE 
 
 TABLE OF CASES - _ _ _ . ix 
 
 TABLE OF STATUTES CITED - - - - - xv 
 
 CHAPTEE I. 
 
 HISTORY OF APPELLATE JURISDICTION OVER COUNTY 
 
 COURTS - 1 
 
 CHAPTEE n. 
 
 THE STATUTE OF 1888 - - - 7 
 
 CHAPTEE HI. 
 
 APPEAL MUST BE ON A POINT OF LAW - 12 
 
 CHAPTEE IY. 
 
 THE POINT OF LAW APPEALED AGAINST MUST HAVE BEEN 
 
 TAKEN AT THE TRIAL - - 1 5 
 
 CHAPTEE V. 
 
 THE JUDGE'S NOTE, AND OTHER MATERIAL FOR HEARING 
 
 APPEALS 20 
 
 CHAPTEE VI. 
 
 SUBJECTS OF APPEAL - - 30 
 
 CHAPTEE 
 
 APPEALS SPECIFICALLY CONFERRED BY SPECIAL ENACT- 
 
 MENTS - - - - - - 36
 
 Vlll CONTENTS. 
 
 CHAPTEE 
 
 PAGE 
 
 CASES IN WHICH THERE is NO APPEAL - - - 39 
 
 CHAPTEE IX. 
 
 PROCEDURE ON APPEAL - - - 42 
 
 CHAPTEE X. 
 
 POWERS OF APPELLATE COURT EEVERSAL OF JUDGMENT 
 
 AND AWARD OF DAMAGES - - 52 
 
 CHAPTEE XI. 
 
 APPEAL - - 55 
 
 CHAPTEE XII. 
 
 APPEALS FROM THE MAYOR'S COURT - - 58 
 
 CHAPTEE XIII. 
 APPEALS IN BANKRUPTCY - - 61 
 
 CHAPTEE XIV. 
 APPEALS IN ADMIRALTY - - - - 66 
 
 CHAPTEE XV. 
 
 COSTS OF APPEALS - . - 73 
 
 CHAPTEE XVI. 
 
 MANDAMUS - ... 78 
 
 CHAPTEE XVH. 
 PROHIBITION - - - 88 
 
 CHAPTEE XVHI. 
 
 CERTIORARI - - . . - . 103 
 
 INDEX 107
 
 TABLE OF CASES. 
 
 A. 
 
 PAGE 
 
 ALDAM v . Brown 41 
 
 Alert, The 67 
 
 Alne Holme, The -. 69 
 
 Amos v. Duffy 54 
 
 Amstell v. Lesser 95 
 
 Anderson v. Dean 70 
 
 Andrew v. The Swansea Camb. 
 
 Building Society 38 
 
 Apothecaries' Society, Ex parte 76 
 
 Appleford v. Judkins 58 
 
 Ashby v. Sedgwick 75 
 
 v. Yates 34 
 
 Ashenden v. L. B. & S. C. 
 
 Rail. Co 75 
 
 Askew's Case 78 
 
 Aykroyd, In re 97 
 
 B. 
 
 Babbage v. Coulburn 56 
 
 Bagg's Case 78 
 
 Baker v. Clark 95 
 
 Balmforth v. Pledge 56 
 
 Banks v. Hollingsworth . . 103, 105 
 
 Barber v. Burt 21, 27 
 
 Barker v. Palmer 35, 102 
 
 Barlow, In re 80 
 
 Barton v. Titchmarsh 94 
 
 Bates v. "Warner 105 
 
 Batten, In re 64 
 
 Baxter v. Lond. C. C 86 
 
 Becke, Ex parte 82 
 
 Beswick v. Bony 32 
 
 Blackborough v. Davis 81 
 
 PAGE 
 
 Blackmore, Ex parte 82 
 
 Blacquiere v. Hawkins 92 
 
 Blades v. Lawrence 85 
 
 Blakeway v. Patteshall 46 
 
 Blenkairne v . Statter 76 
 
 Blinkhorn, In re, Ex parte 
 
 Blease 65 
 
 Bodenham v. Ricketts 89 
 
 Booth v. Milns 34 
 
 v. Turle 14 
 
 Borthwick v. Walton 96 
 
 Bowen, In re 101 
 
 and Evans, In re .... 103 
 
 Bowles v. Drake 56 
 
 Boyle v. Sacker 62 
 
 Brighton Sewers Board, In re. 85 
 
 Brittain v. Kinnaird 12 
 
 Broad v. Perkins 89 
 
 Brown v. Book 21, 24 
 
 f. Cocking 100 
 
 v. Shaw 45 
 
 Buggin v. Bennett 89 
 
 Bunbury v. Fuller 99 
 
 Button v . "Woolwich Building 
 
 Society 45 
 
 Burder v. Veley 92 
 
 Byerley v. "Windus 92 
 
 C. 
 
 Calvin's Case 78 
 
 Cannon v. Johnson 44 
 
 Carpmael v. Carvell 75 
 
 Carr v. Stringer 33, 35, 68 
 
 Cashmere, The 33, 51, 68 
 
 Cawley r. Furnell 14
 
 TABLE OF CASES. 
 
 PAGE 
 
 Chambers t\ Green 97 
 
 Chapman v. Withers 40 
 
 Cherry v. Endean 105 
 
 Chivers v . Savage 101 
 
 Churchward v. Coleman . . ... 75 
 
 v. Johnson 54 
 
 Clarke v. Roche 51 
 
 Clarkson v. Musgrave . . 12, 15, 17, 
 
 20 
 Clements v. L. & N. W. Rail. 
 
 Co 45 
 
 Clifton v. Furley 77 
 
 Collins v. Vestry of Padding- 
 ton 48 
 
 Collis v. Lewis 31 
 
 Colonial Securities Trust Co. 
 
 v. Massey 13 
 
 Confidence, The 68 
 
 Conybeare v. Farries 74 
 
 Cook v. Gordon ... .20, 21, 24, 25 
 
 v. Jones 48 
 
 Cooke v. GUI 95, 96 
 
 Cooper v. Busbridge 77 
 
 Coulton, In re 48 
 
 Cousins v. Lombard Bank . .6, 12, 
 18, 67 
 
 Crescent, The 69 
 
 Crowley v. Vitty 99 
 
 Crush v. Turner 47, 55 
 
 Cusack v. L. & N. W. Rail. 
 
 Co 48 
 
 Cuthbertson v. Parsons . . 14 
 
 D. 
 
 Dart, The 71 
 
 Daubney v. Shuttleworth .... 49 
 
 Davies v. Williams 105 
 
 Davis v. The Flagstaff Mining 
 
 Co 100 
 
 Debtors Act, Re 97 
 
 De Haber v. Queen of Portugal 9 2 , 
 
 96 
 
 Delano, The 66 
 
 Denny v. Hancock 74, 75 
 
 Denton v. Marshall 88 
 
 Dingor v. Matthews 33 
 
 Donovan v. Brown 47 
 
 Dowse, The 70 
 
 PAGE 
 
 Draycott v. Harrison 40 
 
 Drayson v. Andrews 46 
 
 Duke of Rutland v. Bagshaw 92 
 Dulwich, East, Starr-Bowkett 
 
 Building Society 103 
 
 E. 
 
 East Anglian Rail. Co. v. 
 
 Lythgoe 13 
 
 Eastland v. Burchell 53 
 
 Easton v. Nar Valley Commrs. 84 
 
 Eccles. Commrs. v. Stallon . . 38 
 
 Eclipse, The 69 
 
 Ede v. Jackson 92 
 
 Eden, The 67 
 
 Eder v. Levy 59 
 
 Ellis, In re, Ex parte Thoday 64 
 
 Elstone v. Rose 96, 99 
 
 Evans v. Matthews 44 
 
 v. Wills 98 
 
 F. 
 
 Falcon, The 67 
 
 Fallows v. Slatter 51, 74 
 
 Farley v. Bonham 36 
 
 Farquharson v. Morgan 89 
 
 Forest Queen, The 70 
 
 Forster, In re 97 
 
 Fortescue v. Paton 41 
 
 Foster v. Foster and Berridge 91 
 
 v. Green 49 
 
 v. Smith 73 
 
 v. Temple 100 
 
 v. Usherwood 56 
 
 Foulger v. Taylor 31 
 
 Francis v. Dowdeswell ...... 48 
 
 Fraser v. Fothergill 32 
 
 Free v. Burgoyne 95 
 
 French v. Trash 92 
 
 Fuller v. Cleveley 53 
 
 Furber v. Stunny 81 
 
 G. 
 
 Gage V. Collins 75 
 
 Gardner r. Ingram 19
 
 TABLE OF CASES. 
 
 XI 
 
 PAGE 
 
 Garnett v. Bradley 74 
 
 Gee f . Lancashire and York- 
 shire Rail. Co 73, 74 
 
 G. E. Rail. Co. v. Giddons . . 18, 
 
 21, 23, 51 
 
 Gibbon r. Gibbon 73 
 
 Gibson v. Kilner 35, 68 
 
 Glossop v. Heston, &c., Board 79, 
 
 82, 84, 85 
 G. N. Rail. Co. v. Mossop . . 98 
 
 Godfrey v. Lazarus 95 
 
 Goodes r. Cluff 75 
 
 Goodman v. Blake 14 
 
 Gould v. Gapper , 101 
 
 Gray v. Bompas 73 
 
 Grigg's Case 92 
 
 Groves v. Janssens 3 
 
 G. W.Rail. Co. v. Rimell.... 19 
 Gwynne v. Knight 101 
 
 H. 
 
 Hack v. Lond. Prov. Building 
 
 Society 37 
 
 Hadida v. Fordham 41 
 
 Hall P. Norwood 88 
 
 Hanmer v. King 37 
 
 Harris v. Dreesman 30 
 
 t 1 . Galpin 44 
 
 v. Slater 101 
 
 Hawes v. Paveley 100 
 
 v. Peake 51 
 
 Hawkins v. G. W. Rail. Co. . . 55 
 
 v. Jeffreys 100 
 
 Hemming v. Blanton 48 
 
 v. Williams 46 
 
 Henderson v. Bamber 38 
 
 Hill t-. Persee 21, 22, 32 
 
 v. Swift 99 
 
 Hoare v. Bremridge 51 
 
 Hopper v. "Warburton 98 
 
 Home v . Earl Camden 101 
 
 Horsnail r. Bruce 98 
 
 How t\ L. & N. W. Rail. Co. 33 
 
 Howard r. Graves 97, 98 
 
 Hull v. McFarlane 100 
 
 Humber, The 70 
 
 PAGE 
 Hunt t\ North Staffordshire 
 
 Rail. Co 98 
 
 Hunter v. Hunter . . 52 
 
 I. 
 
 Irving v. Askew 51,81,98 
 
 Isaacs v. Wyld 99 
 
 J. 
 
 Jackson v. Beaumont . .79, 91, 96 
 
 v. Margrett 48 
 
 Jacobs t'. Brett 95 
 
 v. Dawkes 33, 49 
 
 James v. Evans 21, 25 
 
 Jardine v. Smith 33, 85 
 
 Jonas v. Adams 32 
 
 v. Long 33, 35, 68 
 
 Jones r. Currey 101 
 
 and James, In re .... 90 
 
 v. Jones 98 
 
 v. Owen 90 
 
 Joseph v. Henry 100 
 
 Julius v. Bishop of Oxford . . 86 
 
 Kay v. Briggs 55 
 
 Kelly v. Webster 76 
 
 Kimpton v. Willey 88 
 
 King t 1 . Charing Cross Bank. . 93 
 v. The Oxford Co-opera- 
 tive Society 53 
 
 Kirkheaton District Board v. 
 
 Ainley 36 
 
 Knowles v. Booth 37 
 
 v. Holden 89 
 
 Kyrburg v. Posanski 95 
 
 Lamb, In re 64 
 
 Langtry, In re 64 
 
 Lawf ord r. Partridge 97 
 
 Le Blanche v. L. & N. W. 
 
 Rail. Co. . 54
 
 Xll 
 
 TABLE OF CASES. 
 
 PAQE 
 
 Lewis v. Owen 39, 40 
 
 Lexden Union v. Southgate . . 101 
 
 Liederman v. Schultz 73 
 
 Lister v. Wood 56, 96 
 
 Liv. Gas Co. v. Everton .... 96 
 
 Lloyd v. Jones 97 
 
 L. & N. W. Rail. Co. v. Grace 73 
 Longbottom v. Longbottom . . 104 
 
 Lumb v. Teal 21, 29, 32 
 
 Lydia, The 71 
 
 M. 
 
 McDaniel v. Hughes 92 
 
 McGrah v. Cartwright 45 
 
 McHardy v . Liptrott 33, 49 
 
 v. Walker, Ex parte 
 
 McFee 99 
 
 Malley v. Shepley 48 
 
 Manning v. Farquharson .... 95 
 
 Marshall v. Bluman 34 
 
 Mason v. The Wirral High- 
 way Board 40 
 
 Matthews v. Ovey 44 
 
 Mayer v. Burgess 30 
 
 v. Farmer 41 
 
 Mayor of London v. Cox . . 58, 89, 91 
 
 Medwin, Ex parte 102 
 
 Meek v. Witherington 33 
 
 Milner and Rhoden, Ex parte . 82 
 
 Minet r. Leman 36 
 
 Miriam, The 71 
 
 Moody v. Steward 75 
 
 Moon, In re, Ex parte Dawes. 65 
 
 Moore v. Gamgee 101 
 
 Morgan v. Bowles 58 
 
 v. Daviea 21, 22 
 
 v. Rees 16, 20, 22, 23 
 
 Morris v. Lowe 33, 49 
 
 Mouflet v. Washburn 90 
 
 Mountnoy v. Collier 74, 98 
 
 Mulleneisen v. Coulson 45 
 
 Mun. Per. Building Society v . 
 
 Kent 37 
 
 Murfett v. Smith 4G 
 
 Murtagh v. Barry 34 
 
 Myers v. Wilson 46 
 
 N. 
 
 PAGE 
 
 Nash, Ex parte 82 
 
 National Funds Assurance Co. , 
 
 In re 47 
 
 Norburn v. Hilliam 34 
 
 Norris r. Carrington 101 
 
 North r. Holroyd 30 
 
 O. 
 
 Oliver v. Lewis 31 
 
 Osborne r. Homburg 56 
 
 Outhwaite v. Hudson .. 73 
 
 P. 
 
 Paris Skating Rink Co. , In re 85 
 Parkgate Iron Co. v. Coates . . 46 
 
 Parsons v . Turling 74 
 
 Pater, Ex parte 39 
 
 Payne, In re 64 
 
 Pearce v. Winkworth 4 
 
 Pears v. Wilson 100 
 
 Pearson v. Glazebrook 97 
 
 Peat's Case 79,81 
 
 Pfeiffer v . The Midland Rail. 
 
 Co 46 
 
 Pierpoint v. Cartwright 22, 23 
 
 Pole v. Bright 33, 49 
 
 Potter v. G. W. Colliery Co. . . 105 
 
 Powell v. Thomas 48 
 
 Pringle, Ex parte 74 
 
 Puniell v . G. W. Rail. Co. , 62 
 
 Q. 
 
 Quartly v. Timmins 95 
 
 Quilter v. Mapleson 52 
 
 R. 
 
 Rackham v. Blowers 30, 39 
 
 Railton v. Easy 51 
 
 Rawnsley v. Lancashire and 
 
 Yorkshire Rail. Co 47 
 
 Recepta, The 94, 95
 
 TABLE OF CASES. 
 
 XLLL 
 
 PAGE 
 
 Reed, Bowen & Co., In re .... 64 
 R. t 1 . Archbishop of Canter- 
 bury 79, 82 
 
 v. Bank of England . . 79, 80 
 
 v. Barker 78, 79 
 
 v . Bishop of Chester .... 80 
 
 v. Bishop of Lichfield . . 81 
 
 t\ Bishop of London 79, 80, 85 
 
 v. Bodmin 86 
 
 v. Bosworth 78 
 
 v. Brompton County Ct. 97 
 
 v. Cambridge 78 
 
 v. Churchwardens of All 
 
 Saints, Wigan 79 
 
 v . City of London Court . 102 
 
 v. Clear 80 
 
 r. Commissioners of In- 
 land Revenue 79 
 
 v. Company of Surgeons . 79 
 
 v. Dean of Dublin 78 
 
 v. Dep. of Leicester .... 81 
 
 v. Everet 83 
 
 r. Fowey 80 
 
 v. Gloucester 80 
 
 v. G. W. Rail. Co 79 
 
 v. Harding 85 
 
 v. Heathcote 80 
 
 r. Holl 85 
 
 r. Incorporated Law So- 
 ciety 79 
 
 v. Jordan 39 
 
 r. Justices of Bradford . . 80 
 
 v. of City of 
 
 London 95 
 
 r. Kerr 21, 26 
 
 r. Kettle 37 
 
 i\ Lambourn Valley Rail. 
 
 Co 79, 80, 85, 86 
 
 v. Leicester, &c 81 
 
 v. Liverpool (Mayor of ) . 83 
 
 v. L. & N. W. Rail. Co. 80, 81 
 
 v. Lefroy 98 
 
 v. Lincoln County Court. 99 
 
 v. Lords Commissioners of 
 
 the Treasury (1872) 80 
 
 f. Lords of the Treasury 
 
 (1855) 80 
 
 v. Middlesex Justices . . 82 
 
 v. North Riding of York- 
 shire 81 
 
 PAGE 
 
 R. v. Payn 80 
 
 v, Pemberton 105 
 
 v. Pitt 80 
 
 f. Registrar of Joint 
 
 Stock Companies . . 80 
 
 v. Richards 82 
 
 v. Shropshire County Ct. 96 
 
 v. Treasury 80 
 
 v. Weobly 80 
 
 v. Westmoreland County 
 
 Court 95 
 
 Rhodes v. Liverpool Invest- 
 ment Co 6, 16, 17, 20, 22 
 
 Rhodes v. Swithenbank. ...".. 47 
 Richardson v. N. E. Rail. Co. 74 
 
 v. Silvester 46 
 
 Roberts v. Humby 88, 90 
 
 Robins, Ex parte , . 80 
 
 Robinson v. Emanuel 96 
 
 v. Lenaghan 101 
 
 v. Lord Vernon .... 73 
 
 Schofield, Ex parte 55 
 
 Schroder v. "Ward 73, 74 
 
 Sewell t\ Jones 97 
 
 Seymour t'. Coulson. .6, 16, 17, 19, 
 20, 21, 25, 27 
 
 Shapcott r . Chappell 44 
 
 Sharrock v. L. & N. W. Rail. 
 
 Co 13, 51 
 
 Shaw v. Girvin 75 
 
 Shrewsbury (Earl of) v. Gar- 
 field 31 
 
 Sidebotham, Re, Ex parte 
 
 Sidebotham 63 
 
 Simpson r. Scottish Ins. Co. . . 79 
 
 Slattery v. Axton 51 
 
 Smith, Re, Ex parte Denbigh . 65 
 
 v. Baker 15,17 
 
 v. Pryse 100 
 
 Sneesby v. L. & T. Rail. Co. . 61 
 
 Snowden r. Baynes 53 
 
 Speight, In re, Ex parte Brooke 65 
 
 Stevenson, Ex parte 55 
 
 . v. Stickle 101 
 
 Still v. Booth . . 101
 
 XIV 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Stonor v. Fowle 97 
 
 Summers, Ex parte 100 
 
 Swain v . Cox 95 
 
 v. Follows 47, 76 
 
 Symons v. Rees 101 
 
 T. 
 
 Taplin v. Taplin 46 
 
 Tattershall v. Fearnley 51 
 
 Taylor v. G. N. Rail. Co 74 
 
 v. Nichols 90 
 
 Tenant v. Rawlings 70 
 
 Thomas v. "Exeter Flying 
 
 Post" 60 
 
 . v. Kelly 47 
 
 Thompson, Ex parte 86 
 
 Thomson v. Ingham 99 
 
 Toft v. Rayner 101 
 
 Turbill's Case- 92 
 
 Turner v. G. W. R. Co. 44 
 
 V. 
 
 Valentine v. Cleugh 73 
 
 Vallance ;. Nash 31 
 
 Vallentin r. Woodley 40 
 
 Victoria, In re 62 
 
 W. 
 
 Wadsworth v . Queen of Spain 91 
 
 Walker, In re, Ex parte Nickoll 65 
 
 "Wallace v. Allen 95 
 
 Walsh and lonides, In re .. .95, 97 
 
 Ward v. Raw 48 
 
 v. Wyld 75 
 
 Waters v. Handley 101 
 
 Waterton v. Baker . . 76 
 
 PAGE 
 
 Watson v. Ambergate, &c. Co. 15 
 
 Weaver v. .Toule 73 
 
 Webb, In re 64 
 
 Webb & Sons, In re 64 
 
 West Devon G. Consol. Mine, 
 
 In re 36, 41 
 
 Whatley v. Holloway 55 
 
 Wheatcroft v. Foster 56, 75 
 
 Whelan, In re 64 
 
 Whinney v. Schmidt 96 
 
 Whiter Milne 31 
 
 Whitehead v. Procter 75 
 
 Whiteman v. Hawkins .... 32, 53 
 
 Wilberforce v. Sowton 48 
 
 Wilcoxon v. Searby 31 
 
 Wilkinson v. Jagger 37 
 
 Williams v. De Boinville .... 49 
 
 v. Evans 15 
 
 v. Line 46 
 
 v. Taperell 44 
 
 V.Williams 13 
 
 Wilson v. Smith 76 
 
 v. Statham 75 
 
 Wilton t>. Leeds Forge Valley 
 
 Co 33 
 
 Winsor v. Dunford 100 
 
 Worthington v. Jeffries ... .91, 97 
 Wright v. Monarch Invest. 
 
 Socy 37 
 
 y. 
 
 Yates v. Palmer 89 
 
 Yorke v. Smith , 18 
 
 Z. 
 
 Zohrab v. Smith 
 
 101
 
 TABLE OF STATUTES CITED. 
 
 PAGE 
 
 21 Jac. 1, c. 116 (An Act against Brokers) 74 
 
 3 & 4 Viet. c. 24 (Costs) 74 
 
 9 & 10 Viet. c. 95 (County Courts Act, 1846) 1 
 
 12 & 13 Viet. c. 101 (C. C. A. 1849) 1 
 
 13 & 14 Viet. c. 61 (C. C. A. 1850) 2, 3* 
 
 15 & 16 Viet. c. 54 (C. C. A. 1852) 3 
 
 15 & 16 Viet. c. 76 (Common Law Procedure Act, 1852) 46 
 
 17 & 18 Viet. c. 17 (C. C. A. 1854) 3 
 
 17 & 18 Viet. c. 125 (Common Law Procedure Act, 1854) 35 
 
 19 & 20 Viet. c. 108 (C. C. A. 1856) 3, 56* 
 
 20 & 21 Viet. c. 157 (Mayor's Court Procedure Act, 1857) 58 
 
 21 & 22 Viet. c. 74 (C. C. A. 1858) 4 
 
 22 & 23 Viet. c. 57 (C. C. A. 1859) 4 
 
 25 & 26 Viet. c. 87 (Ind. & Prov. Societies Act, 1862) 38 
 
 28 & 29 Viet. c. 99 (C. C. A. Eq. Jur. 1865) 4, 77 
 
 29 & 30 Viet. c. 142 (C. C. A. 1866) 5 
 
 30 & 31 Viet. c. 131 (Companies Act, 1867) 37 
 
 30 & 31 Viet. c. 142 (C. C. A. 1867) 37, 56 
 
 31 & 32 Viet. c. 71 (C. C. Adm. Jur. Act, 1868) 66 
 
 36 & 37 Viet. c. 66 (Judicature Act, 1873) 47, 55, 74 
 
 37 & 38 Viet. c. 42 (Building Societies Act, 1874) -. 37 
 
 38 & 39 Viet. c. 50 (C. C. A. 1875) 5, 20* 
 
 38 & 39 Viet. c. 60 (Friendly Societies Act, 1875) 37 
 
 38 & 39 Viet. c. 77 (Judicature Act, 1875) 74 
 
 39 & 40 Viet. c. 59 (App. Juris. Act, 1876) 47, 55 
 
 39 & 40 Viet. c. 75 (Rivers Pollution Act, 1876) 36 
 
 42 & 43 Viet. c. 9 (Friendly Societies Act, 1879) 37 
 
 45 & 46 Viet. c. 50 (Hun. Corp. Act, 1882) 83 
 
 46 & 47 Viet. c. 52 (Bankruptcy Act, 1883) 63 
 
 46 & 47 Viet. c. 61 (Agricultural Holdings Act, 1883) 36 
 
 47 Viet. c. 9 (Bankruptcy Appeals (County Courts) Act, 1884) 61 
 
 47 & 48 Viet. c. 61 (Judicature Act, 1884) 47 
 
 51 & 62 Viet. c. 43 (C. C. A. 1888) 6, 7, 9* 
 
 54 Viet. c. 8 (Tithe Act, 1891) 38 
 
 57 & 58 Viet. c. 16 (Judicature Act, 1894) 55 
 
 * And constantly in the earlier part of the book.
 
 THE 
 
 LAW AND PRACTICE 
 
 RELATING TO 
 
 COUNTY COURT APPEALS, 
 
 MANDAMUS, PKOHIBITIOX AM) CEETIOKAEL 
 
 CHAPTER I. 
 
 HISTORY OF APPELLATE JURISDICTION OVER COUNTY COURTS. 
 
 THE Act of 1846 (a), "for the more easy recovery of small County 
 debts and demands in England," which might be put in 
 force, by Order in Council, in any county (though not in the 
 City of London), did not extend the jurisdiction of the 
 County Court beyond the 20/. limit which had at that time 
 already been established ; nor did it give the Court cogniz- 
 ance of any action of ejectment, or action in which the title 
 to any corporeal or incorporeal hereditaments, or to any toll, 
 fair, market or franchise should be in question, or in which 
 the validity of any demise, bequest or limitation under any 
 will or settlement might be disputed, or for any malicious 
 prosecution or libel or slander, or criminal conversation or 
 seduction, or breach of promise of marriage (b). 
 
 By sect. 89, it was enacted that " (1) Every order and 
 judgment of any Court holden under this Act, except as 
 herein provided, shall be final and conclusive between the 
 parties ; but (2) the judge shall, in every case what- 
 ever, have the power, if he shall think fit, to order a new trial 
 to be had, (3) upon such terms a? he shall think reasonable, 
 and (4) in the meantime to stay the proceedings." And the 
 next section prohibited actions from being removed into 
 superior Courts except on certain conditions. 
 
 The finality of a County Court judge's order or judgment County 
 was not affected by the Act of 1849 (c), which, besides 
 
 (a) 9 & 10 Viet. c. 95. 
 
 (b) Sect. 58. 
 
 (c) 12 & 13 Viet. c. 101. 
 
 C. B
 
 2 County Court Appeals. 
 
 amending the former statute, abolished certain inferior Courts 
 of Record. 
 
 County But an appeal section found its place in the further 
 
 Courts amending Act of 1850 (d), which Act also extended the 
 ' " jurisdiction of County Courts from its former limit of 201. 
 to debts, damages, and demands not exceeding the sum of 
 50/., and to all actions in respect thereof, save and excepting 
 those set forth in the Act of 1846, and herein already re- 
 ferred to. 
 
 13 & 14 Sect. 14, which gave the right of appeal, is the basis of a 
 
 Viet. c. 61, i on g series of decisions on various questions having relation 
 to that right, many of which will be considered in due course. 
 It enacted that " If either party in any cause, of the 
 amount to which jurisdiction is given to the County Courts 
 by this Act, shall be dissatisfied with the determination or 
 direction of the said Court (1) in point of law, or (2) upon 
 the admission or rejection of any evidence, such party may 
 appeal from the same to any of the Superior Courts," within 
 a certain limit of time, and on giving notice and security for 
 the costs and, if defendant, the amount of the judgment, 
 "and the said Court of Appeal may either (1) order a new 
 trial on such terms as it thinks fit ; or (2) order judgment to 
 be entered for either party, as the case may be, and may 
 (3) make . . . order for costs, and (4) such orders shall be 
 final." 
 
 S. 15. By sect. 15 it was enacted that " (1) Such appeal shall be 
 
 in the form of a case agreed upon by both parties or their 
 attorneys; (2) and if they cannot agree, the judge of the 
 County Court, upon being applied to by them or their at- 
 torneys, shall settle the case and sign it ; (3) and such case 
 shall be transmitted by the appellant to the .... master's ' 
 office of the Court in which the appeal is to be brought." 
 S. 16. And no judgment, order or determination of a County Court 
 judge, nor any cause or matter brought before him or pend- 
 ing in his Court, was to be removed by appeal, motion, writ 
 of error, certiorari or otherwise, into any Court whatever, 
 save and except in the manner and according to the provi- 
 sions mentioned in these two sections (c) . 
 
 S. 17. In the event of their so agreeing, parties were empowered 
 
 to extend the jurisdiction of the County Court, both as to the 
 value of the debt, damage, or demand, and to its subject- 
 matter (/) ; and in a case under this section it was held that 
 where an extended jurisdiction had been so given by the 
 
 (rf) 13 & 14 Viet. c. 61, s. 14. 
 
 (V) Ibid. 8. 16. 
 
 (/) Ibid. s. 17, repealed by the Act of 1856.
 
 History of Appellate Jurisdiction over County Courts. 3 
 
 parties, no appeal would lie (g) . But the rule thus laid down 
 was altered in the Act of 1854, as will be duly seen. 
 
 The mere form of procedure in appeals, as permitted by 15 & 16 
 the Act of 1850, was somewhat modified in 1852 (Ji), whilst Viet. o. 64. 
 two years later, again (/), the right and mode of appeal as it *J. & 18 
 then stood was extended to all cases in which jurisdiction 
 was given by consent of the parties under the 17th section of 
 the Act of 1850 () ; but since the latter section was itself 
 repealed by the Act of 1856, the extension, of which it was 
 the basis, may also be taken to have gone. 
 
 The amending Act of 1856 (I), again enabled parties to 19&20 
 give jurisdiction by agreement signed by themselves or their J 1 ^ 
 attorneys, in which case the County Court could try all actions s . 23. ' 
 capable of being brought in any superior Court of common 
 law, with the single exception of an action for criminal 
 conversation. 
 
 The Court, by sect. 24 (m) , was also empowered to try S. 24. 
 actions in which the balance of a claim, after deduction by an 
 admitted set-off, did not exceed 50/. ; whilst, by sect. 25, the S. 25. 
 parties could, by written consent, signed by themselves or 
 their attorneys at the hearing, give jurisdiction in any action 
 in which the title to any corporeal or incorporeal heredita- 
 ment, or to any toll, fair, market or franchise, should inci- 
 dentally come in question, the judgment not being evidence 
 of such title as between the parties or their privies in any other 
 action in that Court, or any proceeding in any other Court. 
 
 Moreover, the consent given under sect. 25 was not to pre- 
 judice or affect any right of appeal by either of the parties in 
 the action to which the question of title was incidental (;/). 
 
 The appeal sections of this Act (o), sects. 68 and 69, are of S. 68. 
 an extending nature, and the Act, by sect. 3, incorporates the 
 preceding Acts of 1846, 1849, 1850, and 1852, in so far as 
 the latter are not inconsistent with it. They provide respec- 
 tively that (sect. 68) " An appeal from the decision of a County 
 
 (g) Groves v. Janssens (1854), 9 Ex. 481 ; 2 C. L. E. 558 ; 23 L. J. Ex. 91. 
 
 ft) 15 & 16 Viet. c. 54 (1852). 
 
 () 17 & 18 Viet. c. 17, s. 1 (1854). 
 
 (!) 13 & 14 Viet. c. 61 (1850). 
 
 (I) 19 & 20 Viet. c. 108, s. 23 (1856). 
 
 (in) 19 & 20 Viet. c. 108 (1856). 
 
 () Sect. 23, by which an extended jurisdiction might be given by consent 
 in actions at common law, contained no proviso of this kind, but the rights 
 of the parties to appeal in such circumstances seem to have been provided 
 by the appeal section 68, which is set out in the text. 
 
 By sect. 26, a judge of the Superior Court might, in certain cases, order 
 a cause to be tried iu a County Court ; but the action continued to be in the 
 Superior Court, where judgment was ultimately signed. 
 
 (o) 19 & 20 Viet. c. 108 (1856). 
 
 B2
 
 4 County Court Appeals. 
 
 Court on the same grounds, and subject to the same condi- 
 tions, as are provided by the 14th section of the Act 13 & 14 
 Viet. c. 61 shall be allowed (1) in all actions of replevin where 
 the amount of rent or damage exceeds 201., and (2) in all 
 actions for the recovery of tenements where the yearly rent 
 or value of the premises exceeds 20/., and (3) in proceedings 
 in interpleader where the money claimed, or the value of the 
 goods or chattels claimed, or of the proceeds thereof, exceeds 
 20/., and (4) in all actions where the parties agree that the 
 Court shall have jurisdiction " (p). 
 
 S. 69. Sect. 69. " No appeal shall lie from the decision of a 
 
 County Court if, before such decision is pronounced, both 
 
 parties shall agree, in writing signed by themselves or their 
 
 attorneys or agents, that the decision of the judge shall be 
 
 final, and no such agreement shall require a stamp." 
 
 21 & 22 The powers of litigants to appeal were not affected by the 
 
 Viet. c. 74. ^ c Q 1858 ^^ which simply rearranged the districts, or by 
 
 y. & 23 _ the Act of 1859 (r), which limited the powers of imprisonment 
 
 by a County Court judge for debt. 
 
 28 & 29 The next statute (that of 1865 ()) conferred upon County 
 Viet. c. 99. G our f; S a limited jurisdiction in equity, by virtue of which 
 suits of various kinds, and in which the subject-matter did 
 not exceed 500/. in value, could be tried, the 9th section pro- 
 viding for an extension of j urisdiction upon application of any 
 party, and after hearing, or on default in appearance by the 
 other. 
 
 S. 18. The appeal section (f) provided that " If any party in a 
 
 suit or matter under this Act shall be dissatisfied with the 
 determination or direction of a judge of a County Court 
 (1) on any matter of law or equity, (2) or on the admission 
 or rejection of any evidence, such party may appeal from the 
 same .... and the .... Court of Appeal may make such 
 final or other decree or order as it shall think fit, and may 
 also make such order with respect to the costs of the said 
 appeal as the Court may think proper, and such orders shall 
 be final, provided that nothing herein contained shall autho- 
 rise any party to appeal against any decision of a County 
 Court, given upon any question as to the value of any real 
 or personal property for the purpose of determining the ques- 
 tion of the jurisdiction of the Court under this Act, nor to 
 
 (p) That is, in cases where jurisdiction was given under sect. 23 of the 
 same Act. (Pcarce v. Winkworth (1873), 23 L. T. 710.) 
 (-7) 21 & 22 Viet. c. 74 (1858). 
 frj 22 & 23 Viet. c. 57 (1859). 
 () 28 & 29 Viet. c. 99 (1865). 
 (0 Ibid. s. 18.
 
 History of Appellate Jurisdiction over County Courts. 5 
 
 appeal against the decision of a County Court on the ground 
 that the proceedings might, or should, have been taken in any 
 other County Court," 
 
 An Act regulating matters of administration was passed in 29 & 30 
 1866 (M), this being followed, in 1867, by a further amending Vict - c - 14 - 
 Act (#), which, by sect. 34, was to be construed together with y. f 31 
 its predecessors of 1846, 1849, 1850, 1852, 1856, 1858, 1859, * U2. 
 1865, and 1866, except in so far as the latter were repealed s. 34. 
 by it. None of the then existing appeal sections were in 
 terms repealed by this Act. 
 
 By sect. 7, the High Court could order a cause to be tried S. 7. 
 in a County Court, in which case " the proceedings therein 
 shall be heard and taken in such County Court as if the action 
 had been originally commenced in such County Court " ; and 
 by sect. 8, proceedings in equity might be similarly trans- S. 8. 
 ferred; but this section ended with the words, " and the parties 
 thereto shall have the same right of appeal that they would 
 have had, had the suit or proceeding been commenced in the 
 County Court." 
 
 By sect. 10, actions for malicious prosecution, illegal arrest, s. 10. 
 illegal distress, assault, false imprisonment, libel, slander, 
 seduction, or other action of tort, might, in certain circum- 
 stances, be remitted from the High Court to a County Court 
 for trial therein, when the County Court would have the same 
 powers and jurisdiction as if obtained from both parties by 
 consent, and as if the action had been commenced by plaint 
 in the County Court. 
 
 Actions of ejectment and of title were also brought within Ss - n> 12 - 
 the jurisdiction of the County Courts, where the subject- 
 matter did not exceed 207. in value (//). 
 
 By sect, 13, an appeal was allowed "on the same grounds, S. 13. 
 and subject to the same conditions as are provided by sect. 14 
 of the Act 13 & 14 Viet. c. 61 (1) in all actions of eject- 
 ment ; (2) in all actions in which the title to any corporeal 
 or incorporeal hereditament shall come in question ; (3) and, 
 with the leave of the judge, .... in actions in which an 
 appeal is not now allowed, if the judge shall think it reason- 
 able and proper that such appeal should be allowed." 
 
 The County Courts Act, 1875 (s), was also to be construed 38 & 39 
 together with the Act of 1846, and the several Acts altering Viet. c. 50. 
 or amending it, as already hereinbefore set out, and sect. 6 
 made the following important alteration in the mode, though 
 
 () 29 & 30 Viet. c. 14 (1866). 
 
 () 30 & 31 Viet. c. 142 (1867). 
 
 (y) Ibid.ss. 11, 12. 
 
 (*) 33 t 39Yict. c. 50 (1875).
 
 6 County Court Appeals. 
 
 s - 6 not in the right (), of appeal : " In any cause, suit or pro- 
 
 ceeding, other than a proceeding in bankruptcy, tried or heard 
 in any County Court, and in which any person aggrieved has 
 a right of appeal, it shall be lawful for any person aggrieved 
 by the ruling, order, direction, or decision of the judge, at 
 any time within eight days after the same shall have been 
 made or given, to appeal against such ruling, order, direction, 
 or decision, by motion to the Court to which such appeal lies, 
 instead of by special case, such motion to be ex part? in the 
 first instance, and to be granted on such terms as to costs, 
 security, or stay of proceedings as to the Court to which such 
 motion shall be made shall seem fit ; and if the Court to which 
 such appeal lies be not then sitting, such motion may be made 
 before any judge of a superior Court sitting in chambers ; 
 and at the trial of any such cause, suit, or proceeding, the 
 judge, at the request of either party, shall make a note of any 
 question of law raised at such trial or hearing, and of the facts 
 in evidence in relation thereto, and of his decision thereon, 
 and of his decision of the cause, suit or proceeding, and he 
 shall, at the expense of any person or persons, being party or 
 parties in any such cause, suit, or proceeding, requiring the 
 same for the purpose of appeal, furnish a copy of such note, 
 or allow a copy to be taken of the same by or on behalf of 
 such person or persons, and he shall sign such copy, and the 
 copy so signed shall be used and received on such motion, and 
 at the hearing of such appeal." 
 
 The history of the legislation conferring and regulating the 
 right and mode of appeal from County Courts is completed 
 by a consideration of the consolidating and amending Act 
 of 1888 (6), and certain Orders of the Supreme Court and 
 Rules of the Crown Office and of the County Court. 
 
 (a) Per Lord Coleridge, L.C.J., in Rhodes v. Liverpool Investment Co. 
 
 (1879), 4 C. P. D. 425. 
 
 Cousins v. Lombard Sank (1876), 1 Ex. D. 404 ; 45 L. J. C. P. 573 ; 
 
 35 L. T. 484; 25 W. R. 116. 
 
 Seymour v. Cottlson (1880), 5 Q. B. D. 388; 49 L. J. Q. B. 604; 
 
 28 W. R. 664. 
 (b) 51 & 52 Viet. c. 43, as. 120 et seq.
 
 CHAPTER II. 
 
 THE STATUTE OF 1888. 
 
 BY the statute of 1888, all the preceding Acts are repealed (r/), 51 & 52 
 and the whole law regulating the constitution of, and pro- Vict -- 43 - 
 cedure in, County Courts consolidated and amended. 
 
 The ordinary jurisdiction of the Court is, by the 56th section, s - 56 - 
 to extend to " all personal actions where the debt, demand, or 
 damage claimed is not more than 50/., whether on balance of 
 account or otherwise." 
 
 But the section ends with the proviso that " Except as in 
 this Act provided the Court shall not have cognizance of any 
 action of ejectment, or in which the title to any corporeal or 
 incorporeal hereditaments, or to any toll, fair, market or 
 franchise shall be in question ; or for any libel or slander ; or 
 for seduction ; or for breach of promise of marriage." 
 
 The extent and meaning of the section and its proviso are S. 57. 
 elucidated in the succeeding sections, of which sect. 57 gives 
 the Court jurisdiction where a claim has been reduced by 
 set-off to 501. 
 
 Sect. 58 gives jurisdiction over a demand not exceeding S. 58. 
 50/. in respect of " the unliquidated balance of a partnership 
 account, or a distributive share under an intestacy, or of any 
 legacy under a will." 
 
 Sect. 59 gives jurisdiction in ejectment where " neither S. 59. 
 the value of the lands, tenements, or hereditaments, nor the 
 rent payable in respect thereof," shall exceed the sum of 50/. 
 by the year, subject to the right of the defendant to obtain 
 an order from the High Court for the removal thither of the 
 action, by showing that the title to lands and hereditaments 
 of a greater annual value than 501. would be affected by the 
 decision in it. 
 
 Sect. 60 gives jurisdiction to try any action in which the S. 60. 
 title to any corporeal or incorporeal hereditaments shall come 
 
 in question, where " neither the value nor the rent 
 
 payable in respect thereof " shall exceed the sum of 50/. per 
 annum. 
 
 (a] 51 & 52 Viet, c, 43, s, 183,
 
 8 County Court Appeals. 
 
 S. 61. By sect. 61, in any action in which there shall incidentally 
 
 come into question the title to " any corporeal or incorporeal 
 hereditament, or to any toll, fair, market or franchise, the 
 judge shall have the power to decide the claim which it is the 
 immediate object of the action to enforce, if both parties at 
 the hearing shall consent in any writing, signed by them or 
 their solicitors, to the judge having such power. But the 
 judgment of the Court shall not be evidence of title between 
 the parties or their privies in any other action or matter in 
 that or in any other Court ; and such consent shall not preju- 
 dice or affect any right of appeal of either of the parties to 
 such first-mentioned action." 
 
 S. 64. By sect. 64, jurisdiction may be given by written consent 
 
 of the parties in the case of "all actions assigned to the 
 Queen's Bench Division," nothing being said about the sub- 
 sequent right of appeal, and no limitation being, as a con- 
 sequence, placed upon the general right of appeal in " any 
 action or matter " which is given to " any party " by the 
 appeal sections (>). 
 
 S. 65. Sect. 65 enables a judge of the High Court at any time to 
 
 order an action to be tried in a County Court (c), where, in 
 an action of contract, the claim indorsed on the writ does not 
 exceed 100/., or has been reduced by payment or an admitted 
 set-off, or otherwise, to a sum not exceeding 100/., in which 
 case " the action, and all proceedings therein, shall be tried 
 and taken in such Court as if the action had been originally 
 commenced therein," which seems to justify the conclusion 
 that the usual right and mode of appeal will in all such cases 
 exist and apply (d). 
 
 S. 66. By sect. 66, actions of tort in the High Court may be 
 
 remitted for trial before a County Court (e), when, again, 
 " the action, and all proceedings therein, shall be tried and 
 taken in such Court as if the action had originally been 
 commenced therein." 
 
 Ss. 67, 68. Sects. 67 and 68 provide respectively an equitable jurisdic- 
 tion and a means for transferring certain actions to the Chan- 
 cery Division, when, in the latter case, " the whole of the 
 procedure in the said action or matter, when so transferred, 
 shall be regulated by the Rules of the Supreme Court " (/). 
 
 S. 69. J3y sec t 69, any action or matter pending in the Chancery 
 
 Division may be transferred to a County Court, when " the 
 
 (b) Sects. 120 et scq. : rid/' infra. 
 
 (c) See also C. C. R. Ord. XXXIII. rr. 1 el seq. 
 'd) See also B. S. C. Ord. LIX. r. 18. 
 
 >) See also C. C. R. Ord. XXXIII. rr. 1 et seq. 
 '/) Ibid. rr. 5 et seq.
 
 The Statute of 1888. 9 
 
 parties thereto shall have the same right of appeal as they 
 would have had if the action or matter had been commenced 
 in such Court " (g). 
 
 And by sect. 114 it seems possible for the parties to any s. 114. 
 action or matter commenced in a County Court over which it 
 has no jurisdiction, to give the Court jurisdiction by consent. 
 
 The appeal sections of the County Courts Act, 1888 (h), S. 120. 
 commence with sect. 120, which provides as follows (?) : " If General 
 any party in (1) any action, (2) or matter, shall be dissatisfied f^^f^ * 
 with the determination or direction of the judge (1) in point the 
 of law, (2) or equity, (3) or upon the admission or rejection section, 
 of any evidence, the party aggrieved by the (1) judgment, 
 (2) direction, (3) decision, or (4) order of the judge may 
 appeal from the same to the High Court, in such manner 
 and subject to such conditions as may be for the time being 
 provided by the Rules of the Supreme Court regulating the 
 
 grocedure on appeals from inferior Courts to the High 
 ourt (fi) : Provided always that there shall be no appeal in Limita- 
 any action of (1) contract, (2) or tort, other than an action of tions - 
 ejectment, or an action in which the title to any corporeal or 
 incorporeal hereditament shall have come in question, where 
 the debt or damage does not exceed 20/., nor in any action 
 of (3) replevin, where the amount of rent or the goods seized 
 does not exceed 20/. ; nor in any action for the (4) recovery 
 of tenements, where the yearly rent or value of the premises 
 does not exceed 207. ; nor in (5) proceedings in interpleader, 
 where the money claimed, or the value of the goods or chattels 
 claimed, or of the proceeds thereof, does not exceed 201., un- 
 less the judge shall think it reasonable and proper that such Except by 
 appeal should be allowed, and shall (6) grant leave to appeal." leave - 
 
 At the trial or hearing of any action or matter in which Judge's 
 there is a right of appeal, the judge, at the request of either note - 
 party, shall "make a note of (1) any question of law raised 
 at such trial or hearing, and of (2) the facts in evidence in 
 relation thereto, and of (3) his decision thereon, and of (4) 
 his decision of the action or matter." 
 
 Sect. 121 provides that "in any action or matter in which S. 121. 
 there is a right of appeal, and the judge has, at the request 
 of either party, made a note of any question of law raised at 
 such trial or hearing, and of the facts in evidence in relation 
 thereto, and of his decision thereon, and of his decision of the 
 action or matter, he shall, at the expense of any person or 
 
 (g) Ibid. rr. 1 et seq. 
 (h) 51 & 52 Viet. c. 43. 
 
 (i) The numbers in parantheses have been inserted to emphasize the 
 different portions of the section. 
 
 (ti) E. S. C. Ord. LIX. rr. 1 et seq.
 
 10 
 
 County Court Appeals. 
 
 S. 122. 
 
 S. 123. 
 
 S. 124. 
 
 Statutory 
 grounds 
 of appeal 
 tabulated. 
 
 persons being party or parties in any such action or matter, 
 furnish a copy of the note so taken at the said trial or hearing, 
 or allow a copy to be taken of the same, by or on behalf of 
 such person or persons ; and he shall sign such copy, whether 
 a notice of motion in the matter of the said appeal has been 
 served or not, and the copy so signed shall be used at the 
 hearing of such appeal." 
 
 By sect. 122: "On the hearing of an appeal (j), the 
 High Court shall have power to draw any inference of fact, 
 and may either order a new trial on such terms as the Court 
 may think just (A 1 ) ; or may order judgment to be entered for 
 any party, as the case may be (/) ; or may make a final or 
 other order on such terms as the High Court may think 
 proper to ensure the determination on the merits of the real 
 questions in controversy between the parties." 
 
 Parties may, however, agree not to appeal, sect. 123 pro- 
 viding that " No appeal shall lie from the decision of the 
 judge, if, before such decision is pronounced, the parties shall 
 agree, in writing signed by themselves or their solicitors or 
 agents, that his decision shall be final, and no such agreement 
 shall require a stamp." 
 
 Sect. 124 prohibits any judgment or order of any judge, 
 or any action or matter brought before him or pending in 
 his Court, from being removed by appeal, motion, certiorari, 
 or otherwise, into any other Court whatever, save and except 
 in the manner and according to the provisions mentioned in 
 the Act. 
 
 The rights of appeal, then, as given to an aggrieved party 
 by the terms of the statute, in any action or matter, may be 
 tabulated thus : 
 
 (1) Any party 
 
 (2) in any action or matter, 
 
 may appeal against the County Court judge's 
 
 (1) judgment, 
 
 (2) direction, 
 
 (3) decision, or 
 
 (4) order, 
 
 (5) in point of law or equity, 
 as follows : 
 
 A. In contract or tort ; debt or damage over 20/. 
 
 B. In ejectment or title ; value immaterial. 
 
 C. In replevin; rent or damage, or goods seized, over 20/. 
 
 (f) See C. C. R. Ord. XXXII. rr. 1, 2. 
 (*) Ibid. r. 3. 
 (/) Ibid. r. 4.
 
 The Statute o/1888. 11 
 
 D. In recovery of tenements ; yearly value over 20/. 
 
 E. In interpleader ; money, goods, or proceeds, over 20 
 
 F. On the admission or rejection of any evidence. 
 
 G. In equity ; value immaterial. 
 
 H. In every case by leave ; value immaterial. 
 
 I. In any action or matter (if any) not herein specifically 
 excepted, limited, or curtailed ; value immaterial. 
 
 And from these grounds it is deducible that the right of The right, 
 appeal is a general one on any point of law or equity in all 
 actions or matters that can come before a County Court judge, 
 such right being curtailed only by the specific limitations 
 contained in the section as to the subject-matter and value 
 of claims in certain actions or matters. 
 
 The mode of appeal is separately regulated by the statute, The mode, 
 which provides, firstly, that the judge shall make a note at 
 the request of either party ; and, secondly, that in any action 
 or matter in which there is a right of appeal, and the judge 
 has so made a note, a copy of it shall be used at the hearing 
 of such appeal.
 
 12 County Court Appeals. 
 
 CHAPTER III. 
 
 APPEAL MUST BE ON A POINT OF LAW AND NOT OF FACT. 
 
 No appeal THE Appellate Court has no power to review the decision of 
 ondeci- a County Court judge upon a question of fact(ff), the words 
 fact f * n * ne a PP ea l sec ^ion of the Act of 1850 (b), which gave a 
 right of appeal to a party dissatisfied with the determination 
 or direction of a County Court in point of law, or upon the 
 admission or rejection of any evidence, excluding an appeal 
 as to matters of fact. The Act of 1875 (c), as already seen ('/), 
 merely introduced a new mode of procedure in cases where 
 the right of appeal already existed, the Act of 188S, whilst 
 extending the right of appeal to any " action or matter," and 
 to " a point of law or equity," not differing in effect from 
 its predecessor, in relation to the right to appeal against 
 a decision of fact. The decision of Cleasby, B., and Grove, 
 J. (e), therefore still applies, as well as the remark of the 
 latter learned judge, that if appeals were allowed on ques- 
 tions of fact, the object of the legislature in establishing 
 County Courts as cheap and expeditious tribunals would 
 be defeated. The appeal sections created no jurisdiction to 
 interfere with the finding of a jury, nor, in consequence, 
 with that of a judge (sitting as a jury). 
 
 This decision, however, only affected appeals arising within 
 the common law jurisdiction of County Courts, and not their 
 equitable or Admiralty jurisdiction, appeals in suits within 
 which might or might not extend to matters of fact. With 
 
 () Cousins v. Lombard Sank (1876), 1 Ex. D. 404 ; 45 L. J. C. P. 573 ; 
 
 35 L. T. 484; 25 W. R. 116. 
 
 Jirittain v. Kinnaird (1819), 1 B. & B. 432 ; 4 Moore, 50 ; Gow, 164. 
 Clurkson v. Musi/rave (1882), 9 Q. B. D. 386; 51 L. J. Q. B. r^:> ; 
 
 31 W. R. 47. 
 (b) 13 & 14 Viet. c. 61, B. 14. 
 
 (e) 38 & 39 Viet. c. 50, B. 6. 
 
 (d) Seymour v. Couhon (1880), 5 Q. B. D. 359 ; 49 L. J. Q. B. 604 ; 28 
 
 W. R. 664. 
 
 Rhodes v. Liverpool Im-extment Co. (1879), 4 C. P. D. 425. 
 Cousins \. Lombard Hank (1876), 1 Ex. D. 404 ; 45 L. J. C. P. 573 ; 
 
 35 L. T. 484; 25 W. R. 116. 
 
 (f) In Cousins v. Lombard Sank, ubi sup.
 
 Appeal must be on a Point of Law and not of Fact. 13 
 
 this, Field, J. (in the same case) agreed, citing Sharrock v. 
 L. Sf N. Jr. Hail. Co. (/), where both the Common Pleas 
 Division and the Court of Appeal held that no appeal lay 
 upon questions of fact under the Act of 1850. 
 
 As put by Maule, J., in 1851 (#), the convenient con- 
 struction of sect. 14 of the Act of 1850 (//) would seem to be, 
 that an appeal lies not in any case where the County Court 
 judge performs the functions of a jury. In such a case his 
 judgment upon a matter of fact cannot be the subject of 
 review in any superior Court, though it might be in the 
 case of a determination or direction of the judge in point of 
 law, or in the case of an improper admission or rejection of 
 evidence. 
 
 This view was recently upheld by the Court of Appeal ft), 
 where the principle was recognized that where a case tried by 
 a judge without a jury comes before the Court of Appeal, 
 that Court will presume that the decision of the judge on the 
 facts was right, and will not disturb it unless the appellant 
 satisfactorily makes out that it was wrong. 
 
 So where a case involves facts, and what law there is in 
 it is inextricably mixed up with the facts, it was never in- 
 tended by the legislature that there should be an appeal (). 
 "\Yhere a judge states a number of facts and draws a con- 
 clusion from them, even if it could be seen most clearly that 
 he has mistaken or misapplied the law, Maule, J. (/), did not 
 consider it a proper subject of appeal. 
 
 But questions of fact and questions of law are not always 
 easily to be distinguished, and Vice- Chancellor Stuart held (m) 
 that the question whether certain conversations amount in 
 equity to a contract between the parties to them is not a mere 
 question of fact, but is one the decision of which by a County 
 Court judge may be made the subject of appeal. In such a 
 case the judge should send up all the evidence adduced at the 
 hearing before him. 
 
 But where a question with reference to a contract or 
 alleged contract between two parties to a suit is, e.g., whether 
 a certain signature to the contract is or is not a forgery, or 
 the like, the question is one of fact (>i). 
 
 (/) (1875), 1 C. P. D. 70 ; 33 L. T. 341 ; 24 W. R. 346. 
 (a) East Anglian Hail. Co. v. Lythgoe (1851), 10 C. B. 726; 2 L. M. & 
 
 P. 221 ; 20 L. J. C. P. 84 ; 15 Jur. 400. 
 (h) 13 & 14 Viet. c. 61. 
 
 ft) Colonial Securities Trust Co. v. Massey, (1896) 1 Q. B. 38. 
 [*) Per Maule, J., in East Anglian Rail. Co. v. Lythgoe, ubi sup. at p. 736. 
 (/) In East Anglian Rail. Co. v. Lgthgoe, ttli sup. 
 (m) Williams v. Williams (1868), 37 L. J. Ch. 854. 
 (n) Per Stuart, V.-C., in Williams v. Williams, ttbi sup.
 
 14 County Court Appeals. 
 
 Similarly, an appeal was held to lie against the decision of 
 the County Court judge (under the Act of 1850), though the 
 question presented to the appellate Court be a mixed question 
 of law and fact, provided the Court can clearly see that, in 
 coming to the conclusion he did, the judge of the County 
 Court must have taken an erroneous view of the law (0). In 
 the case cited Maule, J., delivering the judgment of the 
 appellate Court, held that the terms of a certain letter were 
 not a sufficient acknowledgment of a debt to take the case 
 out of the Statute of Limitations, the County Court judge 
 having held otherwise. 
 
 The incidence of sheriff's charges subsequent to an inter- 
 pleader order was held to be a matter of law, and a proper sub- 
 ject of appeal from a County Court under the Act of 1850 (p}. 
 
 In following this rule on a later occasion, Maule, J., 
 said : " No doubt, if it could have been made to appear by 
 any inference of fact that could legitimately be drawn from 
 the evidence submitted to us, that the judgment of the 
 County Court might be as it is, without any miscarriage in 
 point of law on the part of the judge, that judgment must be 
 left undisturbed, notwithstanding this Court might incline to 
 draw inferences from the facts which might not consist with 
 the conclusion which he has come to. But we feel no diffi- 
 culty whatever in saying that, drawing any inferences that 
 could legitimately be drawn from the evidence here set forth, 
 the judgment for the respondent could not have been arrived 
 at without error in point of law ; that is to say, that the 
 judge, .... in holding the appellant liable in point of law, 
 .... must necessarily have been wrong." And the judg- 
 ment was accordingly reversed (q). 
 
 And just as the appellate Court will be always disinclined 
 to disturb a County Court judge's finding as to facts, where 
 he has not come to such a decision the better course is to 
 refer the matter back to the County Court, and have the evi- 
 dence taken before a jury, that a verdict may be found on the 
 facts (>) . 
 
 (o) Cawky v. Fur mil (1852), 12 0. B. 291 ; 20 L. J. C. P. 197 ; 15 Jur. 908. 
 (p) Goodman v. Blake (1887), 19 Q. B. D. 77 ; 57 L. T. 494. 
 (q) Cuthbertson v. Parsons (1852), 12 C. B. 304; 21 L. J. C. P. 165; 
 16 Jur. 860. 
 
 (r) Booth v. Turk (1873), L. E. 16 Eq. 182 ; 21 "W. E. 721.
 
 15 
 
 CHAPTER IV. 
 
 THE POINT OF LAW APPEALED AGAIXST MUST HAVE BEEN 
 TAKEN AT THE TRIAL. 
 
 IT has always been a condition precedent to the right of Point of 
 appeal, both under the Act of 1875 and that of 1888 (), j 
 that the question of law upon which it is desired to appeal a t the 
 should have been raised before the County Court judge at the trial, 
 trial (b). 
 
 Mr. Justice Field said, in the case last cited : " Before ClarJcson \. 
 the passing of the County Courts Act, 1875, the only mode %%$. at ' e & 
 of appealing was by a case stated by the judge, and the cases there 
 appeal did not lie upon any question of fact. It was thought reviewed, 
 necessary to give suitors a right of appeal not depending 
 entirely upon the judge's discretion, and the Legislature 
 therefore gave the remedy by sect. 6 of the County Courts 
 Act, 1875. But the appeal given by that section is limited, 
 as the appeal was before, to questions of law, and it must be 
 brought by a person ' aggrieved by the ruling, order, direction, 
 or decision of the judge.' ' : 
 
 After referring to that part of the section which provides 
 for a note to be taken, the learned judge proceeded : " I am 
 clearly of opinion that every question of law upon which it is 
 desired to appeal must be raised at the trial. Unless it is, 
 there is no ' ruling, order, direction, or decision of the judge ' 
 within sect, 6 upon which to appeal. In actions in the High 
 Court, where evidence is tendered at the trial and admitted 
 without objection, so that there has been no ruling of the 
 judge with respect to its admissibility, the rule is invariable 
 that the admissibility cannot be questioned on appeal. 
 
 " The object of the provisions of sect. 6 is clearly to let the 
 opponent of the party who asks for the note to be taken know 
 
 ( ff ) Smith v. Baker, (1891) A. C. 325 ; 60 L. J. Q. B. 683 ; 65 L. T. 
 
 467 ; 55 J. P. 660. See also 
 
 Williams v. Evans (1875), L. R. 19 Eq. 547 ; 44 L. J. Ch. 319 ; 
 
 32 L. T. 359 ; 23 W. R. 466. 
 Watson v. Amber gate, $c. Co. (1851), 15 Jur. 448. 
 
 (b) Clarkson v. Mwgrave (1882), 9 Q. B. D. 386 ; 51 L. J. Q. B. 525 ; 
 31 W. E. 47.
 
 16 County Court Appeals. 
 
 Clarkson v. what the question of law is, and to give him the opportunity 
 "ou'td'* ^ mee ^ n ? it by necessary evidence. The judge must be 
 asked to decide the question of law, and it is of great 
 importance that he should be asked to take a note of the 
 evidence relating thereto, both in the interest of the opponent 
 and in order that this Court on appeal should have a complete 
 and clear record of what the point raised at the trial was, and 
 of the judge's decision upon it. 
 
 " I should therefore be prepared to decide on principle that 
 no appeal lies under sect. 6, except against the decision of the 
 judge upon a point of law taken at the trial. 
 
 "But the case of Rhode* v. Liverpool Com. Inv. Co. (c) is, 
 I think, a decisive authority in favour of my view. It is 
 said that the decision in that case has been, in effect, reversed 
 by Seymour v. Coulson (d). I do not think so. On reading 
 the judgments of the Court of Appeal in the latter case, I 
 find that every judge expressly guards himself against being 
 supposed to hold that it was not necessary to take the point 
 before the County Court judge. In that case the questions 
 of law were raised, and the judge did take a note of the 
 evidence, though he was not requested so to do, and stated 
 the questions of law on his note. The Court of Appeal held 
 that the mere fact of his not having been asked to take a note 
 did not destroy the right of appeal. 
 
 " I agree with that decision, and I think it would be a hard 
 construction of the Act not to allow an appeal under these 
 circumstances. 
 
 " In the present case, the point that there was no evidence 
 for the jury was never raised or suggested to the judge at 
 the trial. I am of opinion, therefore, that Rhodes v. Com. 
 Inv. Co. (c) is an authority which stands untouched by Sey- 
 mour v. Coulson (_/') or Moryan v. Rces (#), for the proposition, 
 that a question of law upon which it is desired to appeal, 
 under sect. 6 of the County Courts Act, 1875, must be taken 
 before the County Court judge at the trial." 
 
 Mr. Justice Cave agreed that it would be wholly contrary 
 to the principle of the Act to raise upon appeal an entirely 
 distinct question of law to that which was taken, and of 
 which the other side had no notice, at the trial. All the 
 cases, including Seymour v. Coulson, recognize this, at least, 
 
 (c) (1879), 4 C. P. D. 425. 
 
 (d) (1880), 5 Q. B. D. 359 ; 49 L. J. Q. B. 604 ; 28 W. R. 664. 
 
 (e) Ubi sup. (note c). 
 
 (f) Ubi sup. (noted). 
 
 (y) (1881), 6 Q. B. D. 508; 50 L. J. Q. B. 491; 4i L. T. 133; 29 
 W. R. 3J.">.
 
 Point of Law must be taken at the Trial. 17 
 
 that the point must be taken at the trial, when it might be 
 cured by evidence, and ought not to be taken for the first 
 time on appeal upon notes sent up to this Court for the 
 purpose of raising another and a distinct point of law. 
 
 The case of Clarkson v. Jlusgrare was approved in the Smith v 
 House of Lords (/>), Lord Halsbury, L.C., laying it down 
 that only a limited appeal is allowed by law in actions 
 originally tried in a County Court, no tribunal having power 
 to review a decision of fact there arrived at, except the County 
 Court itself. A matter of law might be made the subject of 
 appeal, but only where the point has been raised at the 
 trial. That, said the Lord Chancellor, had been decided in 
 Rhodes v. Liverpool Com. Ini*. Co. (/). In Seymour v. Conl- 
 son (A-), the principle was affirmed that the point of law must 
 be taken; and, finally, in Clarh-wn v. ^Inxgrave (/), where all 
 the cases were reviewed, it was established and, as the learned 
 Lord Chancellor thought, had been accepted ever since, that 
 the raising of the point of law at the trial is a condition 
 precedent to any appeal from the decision of the County 
 Court. There were good reasons, he thought, for the enact- 
 ment which has so limited an appeal, and, in truth, even 
 where written pleadings rendered such precautions as the 
 statute had enforced in the County Court less necessary, the 
 same precaution had been constantly enforced where applica- 
 tions for a new trial had been made in the Superior Courts. 
 It was obvious that it would be unjust to one of the parties if 
 the other could lie by and afterwards, having failed on the 
 contention that he in fact set up, be permitted to rely on 
 some other point not suggested at the trial, but which, if it 
 had been suggested, might have been answered by evidence. 
 
 Lord Herschell agreed that it would be very mischievous 
 if an appeal from a decision of a County Court could be sus- 
 tained 011 the ground that there was no evidence to go to the 
 jury when that point had not been raised before the County 
 Court judge. 
 
 In Rhodes v. Lie. Com. Inv. Co. (m), Lord Coleridge, L.C.J., Modes v 
 said it was clear by the very terms of it that the statute ^; c 
 13 & 14 Viet. c. 61, s. 14, did not give an appeal from the (1879).' 
 County Court on matters of fact ; that is, where the judge 
 
 (A) Smith v. Baker, (1891) A. C. 325 ; 60 L. J. Q. B. 683 ; 65 L. T. 467 ; 
 55 J. P. 660. 
 
 (0 (1879), 4C. P. D. 425. 
 
 (*) (1880), 5 Q. B. D. 359 ; 49 L. J. Q. B. 604 ; 28 W. R. 664. 
 to (1882), 9 Q. B. D. 386 ; 51 L. J. Q. B. 525 ; 31 W. R. 47. 
 (M) (1879), 4C. P. D. 425. 
 
 C. C
 
 18 
 
 County Court Appeals. 
 
 Rhodes v. 
 ZIP. Com. 
 Inv. Co. 
 
 (1879) 
 contd. 
 
 No case 
 after 
 
 appeal by 
 motion. 
 
 G. E. S. 
 
 v. Giddons 
 (1880). 
 
 Yorke v. 
 
 Smith 
 
 (1851). 
 
 G. W. E. 
 v. Jtimell 
 
 (1856). 
 
 gives what the learned judges in Cousins v. Lombard Bank (n] 
 called a verdict ; but when he pronounces a decision on a 
 case where both law and fact are submitted to him if the 
 parties choose, as they have a right to do, to forego a jury 
 the legislature has said that there should be an appeal in the 
 mode provided. In that case, this procedure had not been 
 followed. The case had come before the judge for deter- 
 mination on the true effect of certain undisputed facts which 
 were in evidence, and at the end of the plaintiffs' case, the 
 advocate for the defendants did not submit that no case had 
 been made out against them and ask for a non-suit, but he 
 proceeded to argue on the facts ; nor did he ask the judge to 
 take a note of " any question of law raised at such trial or 
 hearing and of the facts in evidence in relation thereto." The 
 motion by way of appeal was refused, on the authority of 
 Cousins v. Lombard Mank(o), the course of procedure pre- 
 scribed by the Act not having been followed ; Grove, J., 
 agreeing, and adding that the object of the Act was to 
 prevent that which would work manifest injustice, namely, 
 persons taking their chance of the decision of the County 
 Court judge being in their favour, and afterwards, on finding 
 the decision against them, taking advantage of a mistake in 
 some point of law to which the attention of the judge had 
 never been called. The Court further held, that after an 
 appeal by motion had been rejected, for the reasons stated, 
 a rule calling on the County Court judge to state and sign a 
 special case under 13 & 14 Viet. c. 61, s. 15, would not be 
 granted. 
 
 So, in Great E. Rail. Co. v. Giddons (p), the Court refused 
 to hear the appeal on the ground that the judge's note did 
 not show that the question of law had been raised at the 
 trial ; and, in Yorke v. Smith (<?), the Court declined to enter- 
 tain an objection as a ground of appeal which had not been 
 taken in the Court below. 
 
 But where, at the close of plaintiff's case in the County 
 Court, the defendants' submission that there was no evidence 
 to go to the jury was overruled by the judge, and the defen- 
 dants thereupon called evidence, it was held, on appeal, that 
 by EO doing the defendants had not precluded themselves 
 from appealing on the ground that the judge had ruled 
 
 (n) (1876), 1 Ex. D. 404 ; 45 L. J. C. P. 573 ; 35 L. T. 484 ; 25 W. E. 
 116. 
 
 (o) Ubi sup. 
 
 (p) (1880), 44 J. P. 284. 
 
 (q) (1851), per Coleridge and Erie, JJ., 21 L. J. Q. B. 53 ; 16 Jur. 63.
 
 Point of Law must be taken at the Trial. 19 
 
 erroneously (r) . And a Divisional Court held, in 1890, that Gardner v. 
 on appeal against an order for a new trial, counsel for defen- 
 dant could contend that there was no evidence of negligence, 
 and that the judge was wrong in leaving the case to the jury, 
 though that point had not been raised at the trial before the 
 County Court judge. Lord Coleridge adopted the rule that 
 the Court exceeded their jurisdiction if they set aside a verdict 
 simply upon the ground that they were dissatisfied with the 
 result of the trial, unless they could say that the verdict was 
 such as no reasonable men could have come to. The County 
 Court judge is within his authority in granting a new trial 
 when the verdict is one that no reasonable men could have 
 given (s). 
 
 The fact that a point does not appear from the judge's 
 note to have been specifically taken at the trial is not 
 material, if it appears that the judge necessarily decided that 
 point in order to arrive at his conclusion ; and the appellate 
 Court may review his opinion on that point whether or not it 
 was taken in argument before him (s). 
 
 (r) G. W. R. v. Eimcll (1856), per Jervis, C. J., and Cresswell, Wil- 
 liams and Willes, JJ., 18 C. B. 575 ; 27 L. J. C. P. 201. 
 
 (*) Per Lord Coleridge, C. J., in Gardner v. Ingram (1890), 61 L. T. 
 
 729, at p. 730 ; 54 J. P. 311, following 
 
 Seymour v. Coulson (1880), 5 Q. B. D. 359 ; 49 L. J. Q. B. 604 ; 28 
 
 "W. R. 664. 
 
 c2
 
 County Court Appeals. 
 
 CHAPTER V. 
 
 Acts of 
 1875 and 
 1888 com- 
 pared. 
 
 Principles 
 deduced 
 from the 
 
 THE JUDGE S NOTE, AND OTHER MATERIAL FOR HEARING 
 APPEALS. 
 
 WHILST considering the cases relating to the judge's note, it 
 should be borne in mind that the following, which seem to 
 be the effective words, are common to both the Acts of 1875 
 and 1888 : 
 
 "At the trial . . . the judge, at the request of either 
 party, shall make a note of any question of law raised 
 at such trial or hearing, and of the facts in evidence 
 in relation thereto, and of his decision thereon, and of 
 his decision of the . . . [action or matter]." 
 
 So that the cases decided under the earlier Act will still 
 apply. 
 
 It is believed that the following rules relating to the judge's 
 note are supported by the cases which are subsequently cited 
 and considered : 
 
 Rule 1. The statute having substituted the procedure 
 on appeal by motion based upon the judge's note for the 
 former procedure by special case, the appellate Court will, 
 on grounds both of policy and convenience, though not of 
 absolute necessity, insist, as a general rule of practice, upon 
 the production of such a note at the hearing of an appeal, so 
 that definite and adequate particulars may be before the 
 Court for its assistance and guidance as to what took place in 
 the Court below, and upon what the appeal is based (a) . 
 
 Rule 2. Neither the production of a judge's note, 
 nor a request (b) by the party aggrieved for a note to 
 
 () Rhodes v. Liverpool Investment Co. (1879), 4 C. P. D. 425 ; see p. 22, 
 
 infra. 
 
 Per Hawkins, J., in Cook v. Gordon (1892), 61 L. J. Q. B. 445 ; and 
 
 see p. 25, infra. 
 
 Clarkson v. Musgrave (1882), 9 Q. B. D. 386 ; 51 L. J. Q. B. 525 ; 31 
 W. R. 47. judgment of Field, J. ; and see p. 15, supra. 
 
 (b) Seymour v. Coulson (1880), 5 Q. B. D. 358 ; 49 L. J. Q. B. 604 ; 28 
 
 W. R. 664 C. A. ; Bee i>. -J7, infra. 
 
 Chtrkson v. Mt*yrave (1882), 9 Q. B. D. 386 ; 51 L. J. Q. B. 525 ; 
 31 W. R. 47, per Field, J. ; and see p. 16, supra.
 
 The Judge's Note and other Material. 21 
 
 be taken, is a condition precedent to the right of appeal, 
 either by the terms of the statute or rules (c), or as a result 
 of the decisions, or according to the practice adopted by 
 Divisional Courts (d} ; inasmuch as the statute first gives 
 the right, and then directs the procedure, and places the 
 obligation, not upon the aggrieved party to request that a 
 note should be taken, but upon the judge to make it if so 
 requested ; whilst Ord. LIX. r. 8, already cited, gives the 
 appellate Court power, in terms, to hear the appeal on other 
 evidence when the judge's notes are not produced. Appeals 
 may be, and are, in practice, heard where no note is produced, 
 upon sufficient reason being shown, by affidavit, to account 
 for its absence, and on verification of some statement or certifi- 
 cate of facts found (<?), or report (/) for use in substitution 
 thereof. Such affidavit should specifically state (g) that the 
 missing note either was not taken, or has been lost; or it 
 should give some other good reason for, or explanation of, its 
 non-production. 
 
 Rule 3. The fact that a note has been made by the 
 judge without previous request from a party, is immaterial, 
 and will not prevent it from being used as the basis of an 
 appeal. It is enough that it exists in fact (<jg)^ and fully and 
 adequately sets forth the matter upon which the appeal is 
 brought ; the corollary to which is that the County Court 
 judge may compile or add to (//) a note after the trial, either 
 from memoranda made during its progress, or from affidavits 
 that were put in evidence (/), or from memory. 
 
 Rule 4. A general request to take a note, made to the 
 judge at the commencement of the trial, is not a sufficient 
 request within the meaning of the Act (k) ; but the request 
 
 ( e ) Morgans. Davies (1878), 3 C. P. D. 260; 39 L. T. 60; 26 W. K. 
 
 816 ; see p. 22, infra. 
 
 Morgan v. Sees (1881), 6 Q. B. D. 508 ; 50 L. J. Q. B. 491 ; 44 L. T. 
 133 ; 29 W. R. 345 ; and see p. 23, infra. 
 
 (d) James \. Evans (1895), Law Journal Newspaper, Feb. 9, p. 88 ; and 
 see p. 25, infra ; dissenting from Wills, J., in Cook v. Gordon, ubi sup. 
 
 (e) Per Hawkins, J., in Cook v. Gordon (1892), 61 L. J. Q. B. 445 ; and 
 
 see p. 25, infra. 
 
 Also per Cave and Wright, JJ., in E. v. Kerr (1894), 70 L. T. 595 ; 
 10 T. L. R. 381 ; and see p. 26, infra. 
 
 (/) Barber v. Surf, (1894) 2 Q. B. D. 437 ; 10 R. 397 ; 63 L. J. Q. B. 
 701 ; 71 L. T. 295 ; 42 W. R. 572 ; see p. 26, infra. 
 
 (g) Brown v. Booh (1892), 8 T. L. R. 227 ; and see p. 24, infra. Also 
 
 Lumb v. Teal (1889), 22 Q. B. D. 695 ; 58 L. J. Q. B. 298 ; 60 
 
 L. T. 451 ; and see p. 29, infra, 
 (gg] Seymour v. Coiihon (1880), vide note (), p. 20. 
 (A) G. E. R. v. Giddons (1880), 44 J. P. 284 ; and see p. 23, infra. 
 (i) Hill\. Perssee (1877), 25 W. R. 275; see p. 22, infra. 
 (*) R. v. Ktrr (1894), 70 L. T. 595 ; 10 T. L. R, 381 ; and see p. 26, !n f ra.
 
 22 
 
 County Court Appeals. 
 
 The cases 
 consi- 
 dered. 
 Hill v. 
 Perssee 
 (1877). 
 
 Morgan \. 
 Davies 
 
 (1878). 
 
 Rhodes v. 
 Liverpool 
 Investment 
 Co. (1879). 
 
 should be made when the point of law actually arises (/) , and 
 before the trial comes to an end, though not necessarily before 
 judgment is given (/). 
 
 In Hill v. Perssee (n), an appeal was heard by Mellor and 
 Lush, JJ., on notes compiled by the County Court judge 
 after the trial, from evidence wholly on affidavit, no request 
 having been made for a note to be taken during the trial. 
 
 The case of Morgan v. Danes (o) was heard on appeal 
 without a judge's note, it being explained that efforts had 
 been made to obtain one, but the judge had declined to 
 supply a copy of the note he had taken at the trial, on the 
 ground that it was not such as was contemplated by the Act. 
 Grove, J., acted upon the Rule of January 22nd, 1877, and 
 ordered the appeal to be heard without the note, pointing out 
 that the Rule did not make its production an absolute condi- 
 tion of the party's right of appeal, by reason of the proviso 
 " unless otherwise ordered" (p). 
 
 In the case of Rhodes v. Liverpool In rest me nf Company 
 (1879) (<?), Lord Coleridge, C.J., said that by the mode of 
 appeal provided by the Act (of 1875), the party objecting to the 
 ruling or decision of the County Court judge must distinctly 
 ask him to take a note, upon which the Court above might 
 safely act when the case came to be there discussed. And 
 Grove, J., added that the section, which introduced a new 
 mode of procedure, superadded a requirement that the judge 
 should at the hearing, if asked, take a note. The fact that 
 the former practice of appeal by special case was abolished by 
 this Act, and the new mode substituted therefor, would seem 
 to leave little room for doubt as to the intention of the legisla- 
 ture to provide a definite and adequate means whereby the 
 particulars formerly set forth with such precision by the special 
 case should be brought before the appellate Court for its 
 assistance and guidance on the hearing of the appeal. 
 
 In this case, the judge, who heard it without a jury, had 
 actually taken a note of the evidence, though he had not been 
 required to make a note of any question of law or of the 
 
 (I) Morgan v. Sees (1881), 6 Q. B. D. 508 ; 50 L. J. Q. B. 491 ; II 
 L. T. 133 ; 29 W. R. 345 ; and see p. 23, infra. 
 
 (m) Pierpoint v. Carticriyht (1880), 5 C. P. D. 139; 42 L. T. 259; 28 
 W. E. 583 ; and see p. 23, infra. 
 
 (n) (1877), 25 W. R. 275. 
 
 (o) (1878), 3 C. P. D. 260 ; 39 L. T. 60; 26 W. R. 816. 
 
 ( p) The Rule in question ordered that no motions under the County Courts 
 Act, 1875, s. 6 (see supra, p. 20), should be made from any County Court, 
 unltss a cnpy of the judge's notes, signed by the judge, should have been 
 handed to the proper officer in Court, unless otherwise ordered. (See now 
 Ord. LIX. r. 8 ; and supra, Proposition 2.) 
 
 (?) (1879), -1 C. P. D. 1 _'.-).
 
 The Judge's Xote and other Material. 23 
 
 evidence relating to it ; and it was held that the unsuccessful 
 party could not appeal, though he had applied for the judge's 
 note immediately after the judgment, and his ground of 
 appeal was that there was no evidence to warrant the decision 
 of the judge. 
 
 The words, " at the trial," must be taken to mean before Pier point 
 the trial has substantially come to an end ; that is, before the v '. Ca ^' 
 case is fairly concluded, and after due opportunity for a party (isso). 
 to raise his point. The whole object of the section is to pre- 
 vent parties from taking the point after the case has been 
 concluded, and after reflection upon it. An application made 
 an hour and a half afterwards, for instance, would be wholly 
 too late. But if, immediately upon the judge finishing his 
 judgment, the objection be taken, so that his mind may be 
 directed to it, he can then be asked to take a note of the 
 point (r). 
 
 Mr. Justice Lindley, in the same case, said the remedy 
 afforded to litigants by the Act of 1875 was a cheaper and 
 simpler one than the appeal by special case. If, when a judge 
 was giving a decision, he gave unsatisfactory reasons for that 
 decision, it was competent for the other side, as soon as ever 
 the opportunity was afforded them, to ask the judge to make 
 a note of their objection, in order that they might then 
 'appeal. That would be taking a note at the trial, even 
 though, in point of fact, judgment had been concluded. 
 
 And, where the point of law had been raised as to whether Gt. E. R. 
 
 dons 
 
 there was evidence of negligence to go before the jury, the 
 appellate Court (Kelly, C.B., and Hawkins, J.j held that 
 it could not entertain the question, since it did not appear, 
 from the judge's notes, that such question had, in fact, been 
 raised. But Air. Justice Hawkins thought that the notes 
 should have been referred back to the judge for the question 
 to be noted, and, in the event of his refusing, that a rule 
 should have been obtained to compel him to amend his 
 notes () . 
 
 The case of Jloryan v. Recs (#), which came before the Morgan v. 
 Court of Appeal, establishes (1) that the request to take a 
 note of a point of law and of the evidence in relation thereto 
 must be made, not in general terms at the commencement of 
 the trial, but when the point of law, the subject of appeal, 
 actually arises. Both the statutes of 1875 and 1888 have 
 
 (r) Per Grove, J., in Pierpoint v. Carticright (1880), 5 C. P. D. 139; 
 42 L. T. 259 ; 28 W. R. 583. 
 
 (s) Gt. E. Rail. Co. v. Giddons (1880), 44 J. P. 284. 
 
 (*) (1881), 6 Q. B. D. 508; 50 L. J. Q. B. 491; 44 L. T. 133; 29 
 W. R. 34.3.
 
 24 County Court Appeals. 
 
 apparently taken it for granted that the point of law can be 
 stated at once at the trial, and then a note taken of the evi- 
 dence ; but (as the late Lord (then Lord Justice) Braniwell 
 pointed out in the case cited) a point of law might arise in 
 the course of the case, or the end of it. For instance, the 
 defendant might say: "I see, now the evidence is given, 
 that there is a point of law in this matter." What the judge 
 was to do then, the Lord Justice could not say. But that 
 was the statute, and it seemed to mean that the judge must 
 have notice of a point of law when one was taken, and a 
 request to take the evidence in relation to it. 
 
 (2) That the appellate Court may (in the opinion of 
 Bramwell, L. J.), in its discretion, allow an appeal without 
 the signed notes of the County Court judge being produced, 
 by virtue of the Order of January 22, 1877, which directed 
 that no motion should be made by way of appeal from a 
 County Court without the judge's notes being produced, 
 " unless otherwise ordered." This Order is in effect replaced 
 by Ord. LIX. r. 8, which gives the appellate Court a similar 
 power. 
 
 Brmcnv. In Brotcn v. Book (it}, affidavits were laid before a Divi- 
 
 Eook sional Court, consisting of Mr. Justice Hawkins and Mr. 
 
 Justice Wills, setting forth that at the termination of the 
 
 hearing the appellant applied to the County Court judge for 
 
 a copy of his note. The judge refused, saying that such 
 
 application ought to have been made earlier. Subsequently 
 
 the appellant learned at the Registrar's office that no note 
 
 had been taken. It was held that, in the absence of a note, 
 
 the appeal could not be heard, unless the County Court judge 
 
 gave a certificate that no note had been taken. The appeal 
 
 was therefore adjourned to enable the appellant to obtain 
 
 either a note, or a certificate that none had been taken. 
 
 Cool- v. In the same year, and before a Divisional Court similarly 
 
 U892T constituted, was heard the case of Cook v. Gordon (x), the 
 
 head-note to which is as follows : 
 
 An application to the judge of a County Court at the 
 trial of any action for a note on any point of law and 
 of the facts in evidence thereto, and of his decision 
 thereon, is, under the terms of sect. 120 of the County 
 Courts Act, 1888, the condition precedent for any 
 appeal from such decision being heard. The power of 
 the High Court under Ord. LIX. r. 8 of it. S. C., 
 1883, to admit any evidence or statement of what 
 
 () (1892), 8 T. L. R. 227. 
 (*) (1892). 01 L. J. Q. B. 445.
 
 The Judge's Note and other Material. 25 
 
 occurred, other than such notes of the judge, only 
 comes into operation when such an application has 
 been made at the trial, but no notes of the judge are 
 forthcoming. 
 
 Mr. Justice Hawkins said the object of requiring a note to 
 be taken by the judge on any question of law raised at the 
 trial, and of facts relating to it, was to secure an authentic 
 statement on which the Divisional Court could act. 
 
 Some application should have been made to the judge, and 
 if he had made no notes of his own he could have been asked to 
 certify to the correctness of any statement drawn up or agreed 
 to by counsel on both sides as to what took place. This was 
 a very convenient way of getting over the absence of any full 
 notes, and most judges would be quite willing to certify to 
 such statements. No application had been made here, and in 
 the absence of any judge's notes or certificate of facts found 
 at the trial, the preliminary objection must be upheld. 
 
 Mr. Justice Wills said the application to adjourn then, 
 so as to ask the judge for a note, was made too late. 
 The section of the Act clearly required an application to 
 the judge at the trial. The Divisional Court could not dis- 
 pense with statutory requirements. Ord. LIX. r. 8, allowing 
 the Court to accept some statement, other than the judge's 
 note, only applied when application for a note had been pro- 
 perly made to the judge at the time of the trial, but for some 
 reason or another no note was forthcoming or available. In 
 the case before the Court no application had been made at 
 the trial, and the condition precedent for an appeal had 
 therefore not been fulfilled. The appeal was disallowed. 
 
 Cook v. Gordon has not, however, been invariably followed. 
 The proposition that an application to the judge for a note is 
 a condition precedent to the right of appeal is clearly not 
 supported by the appeal section of the Act or by cases pre- 
 viously decided (//), or by the general practice of the Courts, 
 whilst the tendency of the Hules is against it. And in James 
 v. Eraits (z) a Divisional Court refused to follow Mr. Justice 
 Wills' judgment as reported in Cook v. Gordon, holding that 
 it is in the discretion of the Court to hear an appeal on any 
 other statement where the judge has not been asked to take a 
 note in the Court below. But as no explanation had been 
 given of the omission to ask for a note to be taken, the Court 
 refused to hear the appeal on the materials put forward by 
 the appellant. 
 
 (y) See the judgments of Brett and Cotton, L. JJ., in Sei/mourv. Cuuhon (1880), 
 C. A. 5 Q. B. D. 358 ; 49 L. J. Q. B. 604 ; 28 W. R. 664 ; pp. 27, 28, infra. 
 (:} (1895), Law Journal Newspaper, Feb. 9, p. 88.
 
 26 County Court Appeals. 
 
 X. v. JT<rr The case of Rer/. v. His Honour Commissioner JTerr (a] 
 ' '" brought out the following points of practice : A question of 
 law must be raised at the hearing in the County Court, and 
 when raised, the judge should be requested to make a note of 
 it, which note will state the question of law, the evidence 
 relating thereto, the judge's decision thereon (that is, on the 
 question of law), and then as a separate matter he is to make a 
 note of his decision of the action or matter. This distinctly 
 shows that it is only with regard to a question of law that is 
 raised that he can be asked to make a note at all. It is not 
 sufficient merely to ask the judge to " take the usual note of 
 the proceedings," and the Act does not authorise any request 
 of the kind, and no party is at liberty to ask the judge to take 
 a note of the proceedings. If there be more than oue question 
 . of law, the request for the judge's note should be made with 
 regard to each of them if it is intended to appeal. When, as 
 may happen, it is impossible to comply with the statute and 
 raise a point of law beforehand, and ask the judge to take a 
 note of it, such as, for instance, when the point of law is that 
 there is no evidence to warrant the final decision arrived at, 
 then other notes of what occurred may be used if they have 
 been taken, as, in the City of London Court, where a short- 
 hand writer is employed by the Corporation to take notes in 
 all cases, in the absence of the note which, under the circum- 
 stances, the parties have not been able to request the judge to 
 take. When it has been impossible to obtain a judge's note 
 of the point of law and evidence, the appellant, by leave of 
 the Court, which, in Mr. Justice Cave's opinion, will, iu such 
 cases, never be refused, may show what his point of law was, 
 and what the evidence was thereon, by any evidence that 
 might be available for that purpose. He will not be bound 
 to take a copy of shorthand notes of the case, as that is not 
 the note contemplated by the Act, and in the absence of that 
 note he may proceed upon his own affidavit. When it is' clear 
 that there has been no possibility of getting the regular note 
 taken by the judge, then he has the choice either to obtain a 
 copy of the shorthand notes, if any have been taken, or else 
 to give an account upon affidavit of what happened at the 
 trial, and how it came about that the point of law could not 
 be raised in the ordinary way, and the judge requested to take 
 a note, and so in one way or other he would be able to bring 
 the facts to the knowledge of the appellate Court. With 
 this Mr. Justice Wright concurred. 
 
 Earberv. j n an appeal from the same County Court, which came 
 
 Hurt J 
 
 (1894). 
 
 () (1894), 70 L. T. 59. r >; 10 T. L. ~R. 381.
 
 The Judge's Note and other Material. 27 
 
 before Mr. Justice Cave and Mr. Justice Collins (i), the 
 practice was similarly recognized, that where it is impossible 
 to request the County Court judge to make a note at the 
 time when the point appealed against arose e.g., on account 
 of its having arisen at the close of the summing-up the 
 appellant is entitled to obtain and use a transcript of short- 
 -hand notes of the case, and costs of so much of such notes as 
 are necessary for the appeal will be allowed. In general, how- 
 ever, in cases tried with a jury, only the costs of the note of 
 the summing-up ought to be allowed. 
 
 The question as to whether a request for a note to be taken Seymour v. 
 is or is not a condition precedent to the existence of a right Coulson 
 of appeal, would appear to have been sufficiently disposed of ^ ! 
 in Sci/;nour v. Coulson (c), in 1880, when a Divisional Court, 
 consisting of Cockburn, C. J., and Mellor, J., discharged a 
 rule to set aside judgment on the ground that the County 
 Court judge had not been so requested as required by the 
 Act (of 1875). The judge had, in fact, taken an adequate 
 note, and furnished it, though under protest. On the case 
 coming before the Court of Appeal, Lord Justice Brett, 
 said : " The Queen's Bench Division were of opinion that 
 upon the true construction of the statute the request to the 
 judge is a condition precedent to the right of appeal. I do 
 not think that the request is a condition precedent ; the lan- 
 guage is not consistent with that construction. Section 6 
 gives a new form of procedure upon appeal, instead of that 
 which had previously existed and had been found inconve- 
 nient. [The Lord Justice read sect. 6(r/).] It gives no 
 new right of appeal as to the subject-matter, and no right of 
 appeal as to facts. It only enacts that the procedure need 
 not be by special case ; the section is not in the form of a 
 proviso or of a condition precedent. The enactment is in 
 favour of the party who appeals and for his benefit, and in 
 order that he may appeal under favourable circumstances. 
 In some cases the judge may think that the point is not of 
 sufficient importance to warrant an appeal, and may not take 
 a note, and the statute has provided that the judge shall 
 take a note on application ; therefore, the request is not a 
 condition precedent. 
 
 " We are not called upon to decide what may be the effect 
 in a case where no note has been taken and no request has 
 been made to the judge to take it, or where the judge has 
 
 (b) Barber v. Hurt, (1894) 2 Q. B. D. 437; 10 R. 397; 63 L. J. Q. B. 
 700 ; 71 L. T. '295 ; 42 W. R. 572. 
 
 (f) (1880), 5 Q.-B. D. 358 ; 49 L. J. Q. B. 604; 28 W. R. 664. 
 ((/) Set out on P. 20. supra.
 
 28 County Court Appeals. 
 
 Seymour v. been requested to take a note and has failed to do so ; because 
 Couhon i n the present case the judge has sent a full note with a 
 contd statement of the points of law which were decided by him at 
 the trial, at least in his own mind. 
 
 " When the judge has not been requested to take a note, 
 we do not decide whether an appeal lies if he has decided 
 more than one point of law and the evidence raises several. 
 If the judge does decide all the points of law and states the 
 evidence, it is sufficient to enable the party dissatisfied with 
 the decision to appeal." 
 
 Lord Justice Cotton said : " By the County Courts Act, 
 1875, s. 6, a new right of appeal was not given ; the statute 
 assumes that the right of appeal already existed ; it merely 
 creates a particular mode of appeal as to questions of law." 
 And, in the Lord Justice's opinion, the section did not make 
 the jequest to the judge to take a note a condition precedent 
 to the right of appeal. It merely rendered it obligatory 
 upon the judge to take a note at the request of either party. 
 
 " The right of appeal is not restricted ; it is enough if the 
 point of law appears to have been raised at the trial before 
 the judge of the County Court ; and it is sufficiently raised 
 if the judge necessarily decided it in order to arrive at a 
 conclusion. 
 
 " The view of this Court does not extend to those cases 
 where the question of law does not appear upon the judge's 
 note. I give no opinion as to such a case as that ; it may be 
 necessary, then, to proceed by special case. 
 
 " Further, I say nothing as to an appeal where it is shown 
 that, by the omission to request that a note be taken, evidence 
 material to the point of law raised upon the rule has not been 
 given. In the present case it appears that all the material 
 facts have been stated by the judge." 
 
 Lord Justice Thesiger, agreeing, said that the right of 
 appeal was given by the County Courts Act, 1850, under 
 which statute it was necessary to proceed by special case, and 
 occasionally a difficulty was interposed in the way of the 
 appeal from the circumstance that an imperfect note had 
 been taken by the judge during the trial. In order to 
 remedy this inconvenience, a new kind of procedure was 
 introduced by the County Courts Act, 1875, s. 0, under 
 which a person who is aggrieved is empowered to appeal by 
 motion. Prhnu facie, he would be entitled to move as in 
 ordinary cases in the High Court, upon counsel's brief and 
 notes, and the ordinary materials used upon such motions ; 
 but the legislature probably thought it advisable to provide 
 for those cases in which there might be contradictions as to
 
 The Judyds Note and other Material. 29 
 
 the questions raised or the evidence given before the County Seymour v. 
 Court judge ; and in order that the Court might have an ^ w 
 accurate note of the questions and evidence, provided that the _c ntd. 
 party intending to dispute his decision might request the 
 judge to take a note of the evidence and of his determination 
 thereon. It seemed to the Lord Justice that all these provi- 
 sions were intended for the benefit of the party intending to 
 appeal by motion, and did not constitute a condition precedent 
 to his right to appeal. 
 
 It was unnecessary to decide how matters would have 
 stood if no note had been taken ; but a note did exist upon 
 which the facts were fully stated, and the Court could ascer- 
 tain from it what evidence had been given and what questions 
 had been raised at the trial. It would defeat the purposes of 
 the statute if the Court were to refuse to hear the appeal 
 merely because during the trial no request had been made 
 to the judge to take a note. And the appeal was heard 
 accordingly. 
 
 In an appeal to a Divisional Court composed of Lord ->* v. 
 Coleridge, C.J., and Mr. Justice Hawkins, where no judge's 
 note was before the Court, the late Lord Chief Justice said 
 there were no materials before the Court upon which to decide 
 the appeal. In that case, two affidavits were filed by the 
 appellant which purported to state what occurred at the 
 County Court. The Lord Chief Justice said, the County 
 Court judge might have been asked to take a note, and 
 might have taken it, and such note might be then in existence. 
 That being so, the Court could not have recourse to the other 
 modes which the rules provide in cases where it is satisfied 
 that no note has been taken (c). 
 
 Mr. Justice Hawkins, in agreeing, said the Court was not 
 bound to admit anything but the judge's notes. It was true 
 that, by Ord. LIX., r. 8, it had power, if the judge's notes 
 were not produced, to determine appeals upon any other 
 evidence or statement of what occurred before him as it 
 should deem sufficient ; but it ought to have some reason or 
 explanation given to account for the non-production of the 
 notes such as that none had been taken, or that they had 
 been lost. The affidavits before the Court gave no such reason 
 or explanation : not stating that no notes were taken, or that 
 no application had been made for them. 
 
 (e) Lumb v. Teal (1889), 22 Q. B. D. 675: 58 L. J. Q. B. 298; 60 
 L. T. 451.
 
 30 
 
 County Court Appeals. 
 
 CHAPTER VI. 
 
 SUBJECTS OF APPEAL. 
 
 Appeals 
 given by 
 statute. 
 Amount 
 over 2(W. 
 
 I.e., 
 
 claimed, 
 not ad- 
 judged. 
 
 Eject- 
 ment: 
 title. 
 
 A. In Contract or Tort ; debt or damage over 20/. 
 
 AN appeal lies in all actions of contract or tort where the 
 debt or damage exceeds 20/. (a). 
 
 Wherever the plaintiff's claim is over 20/. the right of 
 appeal arises, and the plaintiff cannot deprive the defendant 
 of that right by abandoning the excess, and taking a verdict 
 for something under 20/. (b) ; nor does it matter that the 
 actual verdict and judgment be for an amount under 207. (c). 
 So, where, under the Act of 1850 (rf), a plaintiff claimed 2'2t., 
 but judgment was given for only 12/., it was held that plain- 
 tiff's right of appeal was not lost, since it depended on the 
 amount for which the action had been commenced, and not 
 upon the amount adjudged. " The cause," it was held, "was 
 an appealable cause when it was brought in the County 
 Court, and nothing had occurred to take away that right" (e). 
 
 But where a suit was substantially one for under 20 L, 
 though brought, in fact, to recover 20/. Is., it was held that 
 there was no appeal (/). 
 
 B. In Ejectment or Title ; value immaterial. 
 
 An appeal lies in all actions of ejectment, or in which the 
 title to any corporeal* or incorporeal hereditaments shall have 
 come in question, without regard to their value (g) . 
 
 (a) 51 & 52 Viet. c. 43, s. 120 ; Eaekham v. Blowers (1851), 20 L. J. Q. B. 
 397 ; 15 Jur. 758. 
 
 (b) North v. Holroyd, (1868), L. E. 3 Ex. 69 ; 37 L. J. Ex. 42 ; 17 L. T. 
 57. 
 
 (c) Harris v. Dreesman (1854), 9 Ex. 485; 23 L. J. Ex. 210; 2 C. L. K. 
 498, decided under 13 & 14 Viet. c. 61, B. 14. 
 
 (d) 13 & 14 Viet. c. 61, s. 14. 
 ( e \ 
 
 ) Harris v. Dreesman (1854), 9 Ex. 485 ; 23 L. J. Ex. 210; 2 C. L. R. 
 498. 
 
 (/) Mayer v. Burgess (1855), 4 E. & B. 655 ; 24 L. J. Q. B. 67 ; 1 Jur. 
 N. S. 473. 
 
 (ff) 51 & 52 Viet. c. 43, s. 120.
 
 Subjects of Appeal. 31 
 
 C. In Replevin ; rent or damage, or goods seized, over 207. 
 
 An appeal lies in all actions of replevin where the amount -Replevin, 
 of rent or the goods seized exceeds 201. (h). 
 
 D. In Recovery of Tenements ; yearly value over 20/. 
 
 An appeal lies in any action for the recovery of tenements, Recovery 
 the yearly rent or value of which exceeds 201. (?'). But if the of tene - 
 y early rent or value does not exceed 20/., there is no appeal ments - 
 without leave, whether the parties be landlord and tenant or 
 otherwise, or (in the opinion of Denman, J.) whether the title 
 to the premises be in question or not () . 
 
 E. In Interpleader; Money, Goods, or Proceeds over 20/. 
 
 An appeal lies from proceedings in interpleader where the Inter- 
 money claimed, or the value of the goods or chattels claimed, P leader - 
 or the proceeds thereof, exceeds 20/. (/) ; but not where the 
 value does not exceed that amount, even by leave (in) . 
 
 Similarly, where the value of the goods seized exceeds 20, 
 although the claim in the original plaint be below 20/., it 
 was held that an appeal would lie(). And the right of 
 appeal may be claimed by a landlord who has appeared at 
 the hearing of the interpleader summons, as well as by the 
 claimant and the execution creditor (o). 
 
 But the right was denied to a claimant who had deposited 
 less than 20/., that being the value of the goods claimed, as 
 fixed by appraisement, and who desired to appeal on the 
 ground that the real value of the goods was over 20/., and 
 that the smaller sum had been deposited because it was suffi- 
 cient to pay the judgment creditor's judgment (p). 
 
 And, similarly, under the Act of 1888, where the value of 
 the goods claimed was less than 20/., and the claimant claimed 
 damages exceeding 20/., judgment being given for 15/. 
 against the execution creditor without leave to appeal, it was 
 held, by a Divisional Court consisting of Lord Coleridge, L.C. J., 
 
 (h) 51 & 52 Viet. c. 43, s. 120. 
 
 (t) Ibid. 
 
 (k) Shrewsbury (Earl of] v. Garfeld (1891), 60 L. J. Q. B. 765. 
 
 (t\ 51 & 52 Viet. c. 43, s. 120. Foulger v. Taylor (1860), 5 H. &N. 202 ; 
 
 29 L. J. Ex. 142. 
 Oliver v. Lewis (1889), TV. N. 224. 
 
 (m) Collis v. Leu-is (1887), 20 Q. B. D. 202; 57 L. J. Q. B. 167; 57 L. T. 
 716; 36 TV. R. 472. 
 
 () Vallancev. Nash (1858), 2 H. & N. 712; 27 L. J. Ex. 142; 4 Jur. 
 N. S. 31. 
 
 (o) TTilcoxon v. Searby (1860), 29 L. J. Ex. 154. 
 
 (p) White v. Milne (1887), 58 L. T. 22.
 
 32 County Court Appeals. 
 
 and Mr. Justice Hawkins, that the execution creditor had no 
 right of appeal under sect. 120 (q). 
 
 Prior to the statute of 1856(r), no appeal lay upon an 
 interpleader matter, the appeal section of 13 & 14 Viet. c. 61, 
 as Parke, B., said, only giving the right to " parties in a 
 cause," the claimant in an interpleader summons not being 
 such a party, just as a claimant in the superior Courts 
 could not bring a writ of error or tender a bill of exceptions. 
 Alderson, B., agreed, adding that the decision in an inter- 
 pleader summons was not in the nature of a judgment, being 
 a mere discretionary order regulating the execution of the 
 previous judgment in the plaint (*). bo, again, in other cases 
 decided before the Act of 1856 (t). 
 
 F. On the admission or rejection of any Evidence. 
 
 Evidence. An appeal lies upon the admission or rejection of any 
 evidence, and the appellate Court may either order a new 
 trial, or order judgment to be entered for any party (u). 
 
 Under the 1 ; J & 14 Viet. c. 61, s. 14, opinions differed as 
 to whether the Court could do more than direct a new 
 trial (.r) . 
 
 G. In Equity ; value immaterial (y). 
 
 In Equity. To give ground for an appeal in equity cases there must 
 be a misapplication by the judge of the principles of equity 
 to the facts which he finds (z). 
 
 H. In every case by leave ; value immaterial (a}. 
 
 By leave. An appeal lies in every action or matter in which the 
 judge shall think it reasonable and proper that such appeal 
 should be allowed, and shall grant leave to appeal (a) . 
 
 (q) Lumb v. Teal (1889), 22 Q. B. D. 675; 58 L. J. Q. B. 298 ; 60 L. T. 
 451. 
 
 M 19 & 20 Viet. c. 108, s. 68. 
 
 (*) JJeswick v. Boffij (1854), 9 Ex. 315 ; 23 L. J. Ex. 89 ; 20. L. R. 558. 
 
 (t) E.g., Fraser v. Fothcrgill (1854), 14 C. B. 295; 23 L. J. C. P. 53 ; 9 Ex. 
 315; 2 C. L. R. 503. 
 
 (u) 51 & 52 Viet. c. 43, ss. 120, 122. 
 
 (*) Jonas v. Adams (1851), 20 L. J. Q. B. 397. But see 
 
 Whiteman v. Hawkins (1878), 4 C. P. D. 13 ; 39 L. T. 629 ; 27 W. R. 
 
 262. 
 
 (y) 51 & 52 Viet. c. 43, s. 120. 
 
 (z) Hi// v. 1'rrxtee (1877), 25 W. R. 275. 
 
 (a) 51 & 52 Viet. c. 43, s. 120.
 
 Subjects of Appeal. 33 
 
 I. In any action or matter (if any) not by the appeal section in matters 
 specifically excepted, limited, or curtailed : value im- not ex> 
 material(6). cepted ' 
 
 The right of appeal in the matters classified in the fore- 
 going paragraphs is conferred by the appeal section of the 
 statute. 
 
 An appeal has also been held to lie in the matters now to Appeals 
 
 be enumerated : ^? n . ^ y 
 
 judicial 
 
 For further and better Answers to Interrogatories. An appeal 
 lies from the ruling of a County Court judge against an to 
 
 application for further and better answers to interro- rogatories. 
 gatories (c) . 
 
 Refusal to receive Verdict and enter Judgment. Where the Refusal 
 County Court judge refused to receive the verdict of the j u( jg* er 
 jury and enter judgment accordingly, but discharged the ment. 
 jury, a rule nisi was granted calling on him to show cause 
 why it should not be so received and entered, and judgment 
 given accordingly (d}. 
 
 Refusal of County Court Judge to grant New Trial. Under New trial. 
 the appeal section of the Act of 1888, there is a right of 
 appeal from the refusal of a County Court judge to allow a 
 new trial (e), the altered words of the section, "judgment, 
 direction, decision, or order," giving it a wider scope (/) 
 than that bestowed by the 13 & 14 Yict. c. 61, s. 14, under 
 which it had been repeatedly held that no appeal lay in 
 interlocutory proceedings at all(^). In 1865, however, by 
 sect. 18 of 28 & 29 Yict. c. 99, an appeal was given in such 
 matters, though only on the equity side (/*), and the Act of 
 
 (b) See 51 & 52 Viet. c. 43, s. 120. 
 
 (c) Meek v. Wltherington (1892), 67 L. T. 122 ; 57 J. P. 7. 
 
 (d) Jardine v. Smith (1860), 8 W. R. 464. 
 
 (e) - Pole v. Bright (per Mathew and Smith, JJ.), (1892) 1 Q. B. 603 ; 65 
 
 L. T. 748 ; 40 W. R. 95 ; 61 L. J. Q. B. 139, following 
 Dingor v. Matthews (1889), 65 L. T. 748, and dissenting from 
 How v. L. $ N. W. Rail. Co., (1891) 2 Q. B. 496 ; 40 W. R. 44. 
 (/) Dingor v. Matthews (1889), ubi sup. 
 
 (g) - McHardy v. Liptrott (1887), 19 Q. B. D. 151 ; 56 L. J. Q. B. 459. 
 Morris v. Lowe (1885), 34 W. R. 45. 
 
 Jacobs \. Dawkes (1887), 56 L. T. 919 ; 56 L. J. Q. B. 446; 35 
 
 W. R. 649. 
 
 Wilton v. Leeds Forge Valley Co. (1884), 32 W. R. 461. 
 Carry. Stringer (1858), E. B. & E. 123. 
 
 The Cashmere (1890), 15 P. D. 121 ; 59 L. J. P. 57 ; 62 L. T. 814 ; 
 
 38 W. R. 623. 
 
 (h] See Jonas v. Long (1888), per Fry and Lopes, L.JJ., 20 Q. B. D. 564 ; 
 57 L. J. Q. B. 298 ; 58 L. T. 787 ; 36 W. R. 315 ; 52 J. P. 468. 
 C. D
 
 34 County Court Appeals. 
 
 1888 contains practically, if not identically, the words con- 
 tained in the former statute. 
 
 The power to grant new trials now conferred upon the 
 judges of County Courts by sect. 93 of the Act of 1888 is 
 not, however, an absolute power, to be exercised upon any 
 grounds which the judge may think fit, but subject to the 
 same limitations as to the grounds on which a new trial may 
 be granted as are imposed upon the judges of the Supreme 
 Court (/). 
 
 The County Court judge should not give judgment for a 
 party, pro forma, giving leave to the other party to apply for 
 a new trial before a jury (unless by consent) : he should hear 
 the case and determine it (&). 
 
 And where the parties consented to a juror being with- 
 drawn, and the matter being determined by the judge, but 
 before judgment was pronounced one of them withdrew his 
 consent, the Court of Common Pleas held (Brett, J., dissent- 
 ing) that the withdrawal of a juror had not put an end to the 
 action ; and a rule was made absolute for a rehearing (/). 
 
 So, again, where the County Court judge wrongly ruled as 
 to who was entitled to begin at the trial, a new trial was 
 ordered (i). 
 
 New trials The Judge of the Mayor's Court may at any time hear and 
 
 Court?' 8 S" 111 * applications 
 
 (1) for rules to show cause for arrest of judgment ; 
 
 (2) or for judgment non obstanfe vcrcdido ; 
 
 (3) or for granting new trials ; 
 
 (4) and for entering verdicts or non-suits in cauges 
 
 pending in the Court (). 
 
 The practice under this section is either by ex partc motion 
 for a rule nm, or by motion for a rule absolute, after notice, 
 which notice must state the grounds upon which the applica- 
 tion is based. In every rule nisi for a new trial, or to enter a 
 verdict or nonsuit, the grounds upon which such rule shall 
 have been granted must also be shortly stated (0). 
 
 No new trial will be granted by reason of the ruling of the 
 judge that the stamp upon any document is sufficient, or that 
 
 (t) Murtaffh v. Larry (1890), 24 Q. B. B. 632 ; 59 L. J. Q. B. 388 ; 38 
 W. R. 526. 
 
 (*) Marshall v. Bluman (1893), W. N. 184 ; 10 T. L. R. 85. 
 
 (/) Norburn v. Hilliam (1870), L. R. 5 C. P. 129; 39 L. J. C. P. 129 ; 22 
 L. T. 67 ; 18 "W. R. 602. 
 
 ( OT ) Ashby v. Bates (1846), 15 M. & "W. 589. 
 
 Booth T. Mittnt (1846), 15 M. & W. 669 ; 15 L. J. Ex. 354 ; 4 D. & 
 
 L. 52. 
 
 () Mayor's Court Procedure Act, 1857, s. 22. 
 
 (o) Common Law Procedure Act, 1854, e. 33.
 
 Subjects of Appeal. 35 
 
 the document does not require a stamp (p) ; and when a new 
 trial is granted on the ground that the verdict was against the 
 weight of evidence, the costs of the first trial will abide the 
 event, unless the Court otherwise orders (q). 
 
 Where a rule to enter a verdict or nonsuit upon a point 
 reserved at the trial is discharged or made absolute, the party 
 decided against may appeal (>), and the Court of Appeal will 
 give such judgment as ought to have been given in the Court 
 below ; and all such further proceedings may be taken there- 
 upon as if the judgment had been given by the Court in 
 which the record originated (.s). But sect. 35 of the Common 
 Law Procedure Act, 1854, which gives a right of appeal 
 against an order for, or a refusal to grant, a new trial, has 
 not been applied to the Mayor's Court. 
 
 Wliere the Judge tried a Case which he ought not to have Nojuris- 
 tried. Where a County Court judge had tried a case which dlction - 
 he should not have tried, and the rule relating to it (i.e., as to 
 time) being obligatory and not merely directory, a Divisional 
 Court (Grove and Lopes, JJ.) held that the defendant's 
 proper remedy was to appeal, and not to apply for a prohibi- 
 tion against the issue of execution on the judgment, it not 
 necessarily following that an appeal does not lie because there 
 is a remedy by prohibition (t). 
 
 Interlocutory Matters Generally. The County Courts Act of Inter- 
 1888 gives a right of appeal in all interlocutory matters, 
 and the principle of the cases which have decided that an 
 appeal lies from the order of a County Court judge granting, 
 or refusing to grant, a new trial is equally applicable, e.g., to 
 the case of an appeal on a question of taxation (). 
 
 Prior to the current Act, however, no appeal would lie on 
 an interlocutory matter (#). 
 
 (p) Common Law Procedure Act, 1854, s. 31. 
 (q} Ibid. s. 44. 
 (r) Ibid. a. 34. 
 (s) Ibid. s. 41. 
 
 (t) Barker v. Palmer (1881), 8 Q. B. D. 9 ; 51 L. J. Q. B. 110 ; 45 L. T. 
 480 ; 30 "W. R. 59. And see Comyn's Digest, tit. Proh. Bk. 7, D. p. 140. 
 (w) GiUon v. Eilner (1893), 69 L. T. 310. 
 
 (x) Carr v. Stringer (1858), E. B. & E. 123. 
 
 Jonas v. Long (1888), 20 Q. B. D. 564; 57 L. J. Q. B. 298; 58 
 L. T. 787 ; 36 W. B. 315 ; 52 J. P. 468.
 
 36 
 
 County Court Appeals. 
 
 CHAPTER VII. 
 
 appeals. 
 
 Construc- 
 tion of 
 specific 
 enact- 
 ments. 
 
 Rivers 
 
 Pollution 
 
 Act. 
 
 Agri- 
 cultural 
 Holdings 
 Act. 
 
 APPEALS SPECIFICALLY CONFERRED BY SPECIAL ENACTMENTS. 
 
 APPEALS are in some cases conferred by special enactments, 
 which also regulate the procedure to be observed. Where 
 such procedure conflicts with, or is in any way different from 
 the general procedure in appeals from County Courts as 
 regulated by the general enactments and rules, the usual 
 rule of interpretation is that the general enactment does not 
 repeal a specific one to which it does not refer, even though 
 the former be of later date (a) . And Sir John Komilly, 
 M.B., agreed, in Minct v. Leman (i), that upon the construc- 
 tion of all statutes the general words of an Act are not to be 
 construed so as to alter the previous policy of the law, unless 
 no sense or meaning can be applied to those words consistently 
 with the intention of preserving the existing policy untouched. 
 The same rule was applied by "Wood, V.-C., in Far lei/ v. 
 Bonham (c}, and is indeed obviously just and convenient. 
 
 Hirers Pollution Act, 1876. The Elvers Pollution Act, 
 1876 (d), gives the County Court jurisdiction by sect. 3, and 
 by sect. 11 provides for appeal by special case, on the merits. 
 The County Courts Act, 1888, while giving an appeal on 
 questions of law, is silent as to a special kind of appeal given, 
 as by this statute, on the merits. The specific appeal, on the 
 merits, given by the special statute, therefore, stands, though 
 Bowen, L.J., considered that sect. 124 of the County Courts 
 Act, 1888, nevertheless draws special appeals like this within 
 the provisions of its 121st section, so as to subject them to 
 the procedure followed in ordinary County Court appeals (c). 
 
 Agricultural Holdings Act, 1883 (/). An appeal was held 
 to lie from a County Court judge in the matter of a dispute 
 
 (a) In re West Devon Great Consolidated Mine (1888), C. A., 38 Ch. D. 51. 
 (/>) (1855), 20 Beav. 269; 24 L. J. Ch. 544. 
 
 (c) (1860), 30 L. J. Ch. 239. 
 
 (d) 39 & 40 Viet. c. 75. 
 
 (e) Kirkheaton District Hoard v. Ainley, (1892) 2 Q. B. 274 ; 61 L. J. Q. B. 
 812 ; 67 L. T. 209 ; 41 W. R. 99. 
 
 (/) 46 & 47 Viet. c. 61, e. 46.
 
 Appeals Specifically Conferred by Special Enactments. 37 
 
 heard and determined by him under sect. 46 of the Agricul- 
 tural Holdings Act, 1883, under the general powers of appeal 
 contained in sect. 13 of the County Courts Act, 1867 (g). 
 
 Friendly Societies. In the case of an unregistered society, Friendly 
 under sect. 30, sub-sect. 10, of the Act of 1875 (/?), the right societies, 
 of appeal to, and therefore from, a County Court or Court of 
 Summary Jurisdiction overrides any rules of the society to 
 the contrary (/). 
 
 In R. v. Kettle (k) , it was held in effect that in ordinary 
 cases where an appeal is given to the High Court, that appeal 
 must, under the rules, be made by notice of motion. The 
 rules as to County Court appeals forbid a resort to the appeal 
 by special case, which, by 13 & 14 Viet. c. 61, was given in 
 ordinary actions. But that case does not necessarily apply to 
 cases in which the right of appeal by special case is given by 
 statute under special circumstances (/). 
 
 Building Societies. It is provided by the Building Societies Building 
 Act of 1874 (tn), that the rules of every society established societies, 
 under the Act shall set forth whether disputes between the 
 society and any of its members shall be referred to a County 
 Court or to the registrar, .or to arbitration ; and it was held 
 by the House of Lords (Lord Selborne, C., dissent iente*) that 
 the High Court had no jurisdiction (), thus affirming the 
 principle already stated, that where a special Act expressly 
 gives a jurisdiction the Courts will not readily refuse to 
 recognise it. The case of Hack v. London Provident Building 
 Society (o) was approved, in which Pearson, J., had held, 
 under the same Act, that the jurisdiction of the Court was 
 ousted, and that the society was entitled to have the dispute 
 referred to arbitration (p}. 
 
 Companies Act, 1867. A right of appeal from the County Companies 
 Court to the Vice-Chancellor was given by the Companies Act, 1867. 
 Act, 1867, which was not confined to mere questions of law, 
 but referred to matters of discretion also. By the (Indica- 
 te) 30 & 31 Viet. c. 142 ; Hanmer v. King (1887), 57 L. T. 367; 51 J. P. 
 804. 
 
 (h) 38 & 39 Viet. c. 60 (explained by 42 Viet. c. 9). 
 
 (t) Knowles v. Booth (1884), 32 W. R. 432. 
 
 (*) (1886), 17 Q. B. D. 761 ; 55 L. J. Q. B. 470 ; 54 L. T. 875 ; 34 W. R. 776. 
 
 (5 Wilkinson v. Jagger (1888), 20 Q. B. D. 423 ; 57 L. J. Q. B. 254 ; 58 
 L. T. 487 ; 36 W. R. 169 ; 52 J. P. 533. 
 
 (m) 37 & 38 Viet. c. 42, s. 16, sub-s. 9. 
 
 () Municipal Permanent Building Society v. Kent (1884), 9 App. Cas. 260 ; 
 51 L. T. 6 ; 53 L. J. Q. B. 590 ; 32 W. R. 681. 
 
 (o) C. A. (1883), 23 Ch. D. 103 ; 48 L. T. 247. 
 
 (p) See also Wright v. Monarch Investment Society (1877), 5 Ch. D. 726.
 
 38 
 
 County Court Appeals. 
 
 Industrial 
 
 Societies 
 
 Act. 
 
 Tithe Act. 
 
 ture Act, 1873 (<?), this was transferred to the Divisional 
 Court (r). 
 
 Industrial and Provident Societies Act. It was held that no 
 appeal lay to the Court of Common Pleas from the County 
 Court in respect of an order made in exercise of its powers in 
 a winding-up proceeding under sect. 17 of the Industrial and 
 Provident Societies Act, 1862 (s). 
 
 Tithe Act, 1891 (/). A Divisional Court (Lawrance and 
 Wright, JJ.) held () that the provisions of the County 
 Courts Act, 1888, as to appeals were not applicable to cases 
 under the Tithe Act, and overruled a preliminary objection 
 that no point of law had been raised at the trial. Sect. 7 of 
 the Tithe Act, 1891, provides for an appeal to the High 
 Court, subject to such conditions as may be, for the time 
 being, provided by the Rules of the Supreme Court regulating 
 the procedure on appeals from inferior Courts to the High 
 Court. 
 
 (?) 36 & 37 Viet. c. 66, s. 45. 
 
 (r) Andrew v. The Swansea Cambrian Building Society (1881), 44 L. T. 106 ; 
 50 L. J. Q. B. 428; 29 W. R. 382 ; 45 J. P. 507. 
 
 (*) 25 & 26 Viet. c. 87 ; Henderson v. Bamber (1865), 19 C. B. N. S. 540 ; 
 35 L. T. 65. 
 
 t) 54 Viet. c. 8. 
 
 M) Ecclesiastical Commissioners v. Stallon (1895), 98 L. T. Jo., p. 371.
 
 39 
 
 CHAPTER VHI. 
 
 CASES IX WHICH THERE IS NO APPEAL. 
 
 Those prohibited by Statute (a) ; No appeal 
 
 Those held by the Courts to be non-appealable; (e. g.} From by sta- 
 an Order of Committal. In the early case of Rackham v. tute ' 
 BJoicers (&), it was held that the appeal given by the Act of ^JX" 1 
 1850 applied only to the judgments of County Courts, and there has 
 not to orders of committal under sect. 99 of 9 & 10 Viet. c. 95. ^en held 
 In Reg. v. Jordan (c), it was laid down that the Superior 
 Court will decline to exercise any appellate jurisdiction over 
 a County Court in matters of fine or committal for contempt, 
 except where there is no reasonable evidence of any contempt 
 having been committed, and the liberty of the subject re- 
 quires protection, following Ex partc Pater (d). And the 
 same principle was followed by the Court of Appeal in the 
 more recent case of Lewis v. Owen (c), where the County Court 
 judge had imposed a fine, under sect. 48 of the Act of 1888, 
 for an assault on an officer of the Court, while in the execu- 
 tion of his duty. For by the interpreting section of that Act, 
 "matter" is to mean every proceeding in the Court which 
 may be commenced as prescribed otherwise than by plaint, 
 and "prescribed" means prescribed by the County Court Rules 
 for the time being. It would seem, however, that a proceed- 
 ing in respect of which there is a form of summons given in 
 the forms appended to the County Court Rules, is a matter 
 
 (rt) For the terms of the statute and the limitations therein imposed upon 
 the general right of appeal, see p. 9, ante. 
 
 (b) (1851), 15 Jur. 758 ; 20 L. J. Q. B. 397, decided under 13 & 14 Viet. 
 c. 61, s. 14. 
 
 (c) (1888), 36 W. E. 589 : affirmed on appeal, 57 L. J. Q. B. 483 ; 36 
 W. R. 796. 
 
 (d) (1864), 33 L. J. M. C. 142 ; 12 W. R. 823 ; 5 B. & S. 299 ; 9 C. C. C. 
 544 ; 10 Jur. N. S. 972 ; 10 L. T. 376. 
 
 () (1894) 1 Q. B. 102 ; 10 E,. 59 ; 63 L. J. Q. B. 233 ; 69 L. T. 861 ; 4? 
 AY. R. 2J1 ; 53 J. P. 263 ; 10 T. L. R. 39,
 
 40 
 
 County Court Appeals. 
 
 Judgment 
 pro forma. 
 
 Garnishee 
 order. 
 
 Award. 
 
 within the meaning of sect. 186, though there be no County 
 Court Rule prescribiog how it shall be commenced (/). 
 
 But a Divisional Court (Field and Cave, JJ.) held that 
 there is a right of appeal from the refusal of a County Court 
 judge to commit a defendant for disobedience (#), although 
 the Court, after considering the merits, upheld the County 
 Court judge's decision. 
 
 Another Divisional Court (Hathew and A. L. Smith, JJ.), 
 whilst agreeing with the rule that if there was any evidence 
 before a County Court judge upon which he had jurisdiction 
 to make an order of committal, the Court had no right to 
 interfere with its exercise by him, held that it could interfere 
 if he had no jurisdiction whatever, and had exercised an 
 authority which he had not. And the motion, though in 
 form an appeal, was treated by the Court as a motion for 
 prohibition (//) . 
 
 Judgment entered pro forma for Appeal. A Divisional 
 Court has no jurisdiction to hear a motion to set aside a 
 judgment entered by a County Court judge pro forma in order 
 to expedite an appeal, such entry not being a determination or 
 direction within the meaning of sect. 14 of 13 & 14 Viet. 
 c. 61, under which statute the case cited was decided (/) ; 
 Pollock, B., observing that the old practice of entering judg- 
 ment for one of the parties to an action, giving the other 
 party leave to move, was abolished, and that it was desirable 
 that all cases should be argued in the County Court, and that 
 the County Court judge should form a judgment on them, of 
 which the Divisional Court should have the benefit. 
 
 Garnishee Order. It was held, in Mason v. The Wirral 
 Hiyhicay Board (k), that there could be no appeal under the 
 former statute and County Court Rules, 1875, from a garni- 
 shee order, it not being a decision in "an action" or "cause" 
 within the meaning of the County Courts Acts (/). 
 
 Refusal to set aside an Award. A suit in a County Court 
 having been referred by the judge to an arbitrator, under 
 9 & 10 Viet. c. 95, s. 77, and the award having been entered 
 up as the judgment, an application was made under the 
 former statute to set it aside on the ground that the arbitra- 
 tors had exceeded their jurisdiction. The application having 
 
 (/) Lewis v. Owen, ubi sup. 
 (g) Valtentin v. Woodley (1889), 5 T. L. R. 462. 
 (A) Draycott v. Harrison (1886), 17 Q. B. D. 147; 34 W. R. 546. 
 (i) Chapman v. Withers (1887), 58 L. T. 24 ; W. N. 235. 
 (k) (1879), 4 Q. B. D. 459 ; 48 L. J. Q. B. 679 ; 27 W. R. 676. 
 (f) But see the wider terms of the appeal section of the Act of 1888 (51 & 
 52 Viet. c. 43, s. 120).
 
 Cases in which there is no Appeal. 41 
 
 been refused, the appellate Court held that it had no juris- 
 diction, under 13 & 14 Viet. c. 61, s. 14, to entertain an 
 application on appeal to set aside the award (ni). 
 
 From refusal to hear Witnesses and Non-suit. To enable the Non-suit. 
 High Court to interfere, the County Court judge must have 
 refused to exercise the jurisdiction vested in him ; but where, 
 on his refusal to hear witnesses, the plaintiff had elected to 
 be non-suited, it was held that the High Court had no power 
 to compel him to hear them, as the non-suit, while it stood, 
 left the judge no case upon which he could act (). 
 
 After consent not to Appeal. The parties may by writing, After 
 by themselves or by their agents, agree not to appeal from consent - 
 the judgment of the County Court judge (o). Counsel have 
 authority to consent not to appeal. And every compromise 
 involves an undertaking not to appeal (p). 
 
 But to constitute a consent order, there must be a bargain 
 between the parties, not a mere acceptance by the appellant 
 of an order offered by the Court (q) . And where the ques- 
 tion tried was merely one of costs, the rest of the order being 
 taken by consent, it was held that this was in effect a consent 
 order, and no appeal lay (r) . 
 
 (m) Mayer v. Farmer (1878), 3 Ex. D. 235 ; 47 L. J. Ex. 760 ; 26 W. R. 
 760. But see now the Act of 1888 (51 & 52 Viet. c. 43, s. 120). 
 
 () Fortescue v. Paton (1860), 3 L. T. 268. 
 
 (o) 51 & 52 Viet. c. 43, s. 64. 
 
 (p) Per Cotton, L. J., in In re West Devon Great Consolidated Mine (1888), 
 38 Ch. D. 51 ; 57 L. J. Ch. 850 ; 58 L. T. 61 ; 36 W. R. 342. 
 
 (q) Aldam v. Brown (1890), W. N. 116. 
 
 (r) Hadida v. Fordham (1893), 10 T. L. R. 139.
 
 42 
 
 County Court Appeals. 
 
 CHAPTER IX. 
 
 PROCEDURE ON APPEAL. 
 
 Ord. LIX. 
 r. 7. 
 
 RuleS. 
 
 Procedure APPEALS from County Courts are now heard by Divisional 
 
 on appeal. Courtg (a)> 
 
 Ord. LIX. provides that : 
 
 R. 7. " On any motion by way of appeal from an inferior 
 Court, the Court to which such an appeal may be brought 
 shall have power to draw all inferences of fact which might 
 have been drawn in the Court below, and to give any judg- 
 ment and make any order which ought to have been made. 
 No such motion shall succeed on the ground merely of mis- 
 direction, or improper reception or rejection of evidence, 
 unless in the opinion of the Court substantial wrong or mis- 
 carriage has been thereby occasioned in the Court below." 
 
 R. 8. " On any motion by way of appeal from an inferior 
 Court, the Court to which any such appeal may be brought 
 shall have power, if the notes of the judge of such inferior 
 Court are not produced, to hear and determine such appeal 
 upon any other evidence or statement of what occurred before 
 such judge which the Court may deem sufficient." 
 
 R. 10. " Every appeal shall be by notice of motion, and no 
 rule nisi or order to show cause shall be necessary. 
 
 " The notice of motion shall state the grounds of appeal, 
 and whether all or part only of the judgment, order, or find- 
 ing, is complained of. 
 
 " The notice of motion shall be an eight days' notice, and 
 shall be served on every party directly affected by the appeal 
 entered." 
 
 R. 11. " Every appeal shall be entered at the Crown Office 
 Department of the Central Office, and the entry shall be 
 made by lodging a copy of the notice." 
 
 (a] Jud. Act, 1873, 8. 45; County Courts Act, 1888, s. 120; R. S. C., 
 Ord LIX. rr. 1 (c), 1017. 
 
 Rule 10. 
 
 Rule 11.
 
 Procedure on Appeal. 43 
 
 E. 12. " The notice of motion shall be served, and the Rule 12. 
 appeal entered, within twenty-one days from the date of the 
 judgment, order, or finding complained of ; such period shall 
 be calculated from the time at which the judgment or order 
 is signed, entered, or otherwise perfected, or from the time at 
 which the finding or any refusal is made or given." 
 
 E. 13. " It shall be the duty of the Master of the Crown Rule 13. 
 Office Department, forthwith upon the entry of the appeal, to 
 apply, on behalf of the High Court, to the judge of the 
 inferior Court from which the appeal is brought, for a copy 
 of the notes of the evidence given, and for a statement of 
 his judgment or finding on any question of law under 
 appeal " (b). 
 
 " Either party shall be entitled, on payment of the proper 
 fee, to obtain from the Crown Office Department an office 
 copy of such notes and statement." 
 
 E. 14. " The appeal shall not operate as a stay of proceed- Rule 14. 
 ings under the decision appealed from, unless the inferior 
 Court shall so order, or unless within ten days after the 
 decision, a deposit shall be made of a security given to the 
 satisfaction of such inferior Court, for a sum to be fixed by 
 the said Court, not exceeding the amount of the money or 
 the value of the property affected by the judgment, order, or 
 finding appealed from." 
 
 E. 15. " Every appeal from an inferior Court shall be Rule 15. 
 entered in the proper list for hearing on such days as the 
 Lord Chief Justice of England may direct, and shall come on 
 to be heard in its order, unless the High Court shall other- 
 wise direct." 
 
 E. 16. " The High Court shall have power to extend the Rule 16. 
 time for appealing, or to amend the grounds of appeal, or to 
 make any other order, on such terms as the Court shall think 
 just, to ensure the determination on the merits of the real 
 questions in controversy between the parties." 
 
 E. 17. " Subject to these rules, the rules for the time Rule 17. 
 being in force with respect to appeals from the High Court 
 to the Court of Appeal shall, so far as practicable, apply to 
 and govern appeals from County Courts and other inferior 
 Courts of record of civil jurisdiction to the High Court." 
 
 E. 18. " Appeals from inferior Courts shall, in the con- Rule 18. 
 struction of Ord. LIX., include every appeal, motion, or appli- 
 cation to set aside or vary any verdict or judgment in or of any 
 County Court, or for a new trial in actions in the High Court 
 remitted to such County Court for trial or otherwise." 
 
 (b) This rule has been repealed by sect. 121 of the County Courts Act, 1888. 
 (See note (&), p. 45, infra.)
 
 County Court Appeals. 
 
 and not 
 ex parts. 
 
 Grounds 
 of appeal 
 to be 
 stated. 
 
 Appeal by It was decided, under the Act of 1875 (c), that the mode 
 motion ; o a pp ea l m g \yy motion, instead of by the former procedure 
 by special case, applied to all actions where leave to appeal 
 could be given, as well as to those where such leave was 
 unnecessary, there being no distinction between the two 
 cases (d). 
 
 by notice; In Matthews v. Ovcy (e), it was held that the appeal should 
 be by motion ex parte in the first instance, and not by giving 
 notice of motion under Ord. XXXIX. r. 3 (/). In Harris v. 
 Galpin (</), decided in 1883, it was held that the effect of 
 Ord. LII. of 1883 was to repeal so much of sect. 6 of the 
 County Courts Act, 1875, as required appeals from County 
 Courts to be made ex parte in the first instance, and that 
 notice of motion should be given under that Order before 
 moving the Queen's Bench Division. And Ord. LIX. r. 10 
 (of 1885) clearly settled this as the practice by enacting in 
 terms that no rule nisi, or order to show cause, shall be 
 necessary. 
 
 The same rule directs that the notice of motion is to state 
 the grounds of appeal; but inasmuch as Ord. LIX. r. 17 
 applies, so far as is practicable, the rules of appeal to the 
 Court of Appeal to appeals from County Courts, and since 
 by Ord. LVIII. r. 1, appeals to the Court of Appeal are to 
 be by notice of motion in a summary way, no other proceed- 
 ing being necessary, the question arose whether or not the 
 grounds of appeal should be given in notices of motion in 
 appeals from County Courts, as provided in Ord. LIX. r. 10. 
 Justices Hawkins and Wills held the affirmative (/*), it not 
 being practicable, in appeals from inferior Courts, to follow 
 the practice on appeal to the Court of Appeal. The old cases 
 which decided that no objection can be taken, at the hearing 
 of an appeal, to the jurisdiction of the Court on the ground 
 that the notice contained no statement of the grounds of 
 appeal, will therefore no longer apply (t). 
 
 (e) 38 & 39 Viet. c. 50, s. 6. 
 
 (<t) Per Mellor and Lush, JJ., in Turner v. G. W. Sail. Co. (1877), 2 Q. B. D. 
 125 ; 46 L. J. Q. B. 226 ; 35 L. T. 809. 
 
 (e) (1884), 13 Q. B. D. 403 ; 53 L. J. Q. B. 439 ; 50 L. T. 776. 
 
 (/) Shapcottv. Chappell (1&S3), 12 Q. B. D. 68; 53 L. J. Q. B. 77; 32 
 W. R. 183, questioned. 
 
 (g) 47 J. P. 727. 
 
 (A) Williams v. Tape-cell (1892), 92 L. T. Jo. 213. 
 
 (i) E.g., Cannon v. Johnson (1852), 21 L. J. Q. B. 164, which was curiously 
 decided on a County Court rule (No. 151), which required such grounds to 
 be stated; and Evans v. Matthews (1857), 26 L. J. Q. B. 166; 3 Jur. N. S. 
 295, where there was a special case, and it was held that the stating of the 
 grounds of appeal was not a condition precedent to the jurisdiction of the 
 Superior Court, but only a requirement for the information of the judge 
 below.
 
 Procedure on Appeal. 45 
 
 The Act of 1875 directed that when the appellate Court Formerly 
 was not sitting, appeals by way of motion from inferior JU ^V 
 Courts should be made before a judge sitting in chambers, h e n no^ 
 who could not adjourn the further hearing into Court, but Court 
 must himself hear and determine it (k) ; but this was not 8lttm o- 
 permitted whilst the appellate Court was actually sitting (/). 
 
 Now, appeals from County Courts are heard by motion by Now by 
 Divisional Courts (>n), notice being entered at the Crown ? tice . 
 Office Department of the Central Office (n) by lodging a a t Q 6 o 
 copy of the notice of motion, together with a further copy for Depart- 
 the use of the Court. ment - 
 
 It is now also the duty of the appellant to furnish the 
 Court with a copy of the County Court judge's notes, 
 Ord. LIX. s. 13, which makes it the duty of the Master of 
 the Crown Office to apply to the judge for such copy, being 
 repealed by sect. 121 of the County Courts Act of 1888 (o), 
 the statement in the headnote of the case cited, that such duty 
 on the part of the appellant is " a condition precedent to the 
 appeal being heard," being apparently not borne out by the 
 judgment. 
 
 But though put in the Crown paper, County Court appeals 
 are not Crown cases within the rule which forbids appeals in 
 forma pauper is from the Crown side of the Queen's Bench 
 Division, that rule being only applicable to Crown cases pure 
 and simple, i.e., between Crown and subject, and not between 
 parties [p). 
 
 Rule 216 of the Crown Office Rules, 1886, applies Rule 216, 
 Ord. LVIII. of the R. S. C., 1883, to all civil proceedings c - - R - 
 on the Crown side, including Mandamus, Prohibition and 
 duo "NVarranto (q). 
 
 A notice of motion on the ground of misdirection should If for 
 state how, and in what manner, the judge misdirected the rn ^ i ~ 
 jury. So, where the only objection stated was " misdirec- notice* 
 
 tion," Huddleston and Manisty, JJ., considered it too must give 
 
 particu- 
 lars. 
 
 (K) 38 & 39 Viet. c. 50, s. 6 ; Button v. The Woolwich Building Society 
 (1879), 5 Q. B. D. 88 ; 49 L. J. Q. B. 249 ; 42 L. T. 54 ; 28 W. R. 136. 
 tt) Brown v. Shaw (1876), L. R. 1 Ex. D. 425. 
 
 (m) Jud. Act, 1873, s. 45 ; County Courts Act, 1888, s. 120; R. S. C., 
 Ord LIX. rr. 1 (c), 1017. 
 () Ord. LIX. r. 11. 
 
 (o) JIcGrah v. Cartwright (1889), 23 Q. B. D. 3 ; 58 L. J. Q. B. 331 ; 60 
 L. T. 537 ; 37 "W. R. 619. 
 
 (p) Clements v. L. $ N. W. Rail. Co., (1894) 2 Q. B. 482 ; 9 R. 223 ; 
 
 58 J. P. 816 ; 10 T. L. R. 324 ; 42 W. R. 338 ; citing 
 Jftdleneisen v. C'ottlson (1888), 21 Q. B. D. 3, as authority on the 
 
 rule. 
 
 ' (q) Ord. LVIII. of the Rules of the Supreme Court is set out at pp. 52, 
 53, 64, 65, infra.
 
 46 
 
 County Court Appeals. 
 
 Effect of 
 death of 
 party. 
 
 Security 
 for costs. 
 
 vague (r), following Drai/son v. Andrews (s). The decision 
 was given under Ord. XXXIX. r. 3, which provides that 
 " Every application for a new trial shall be by notice of 
 motion. The notice shall state the grounds of the appli- 
 cation, and whether all or part only of the verdict or 
 findings is complained of." 
 
 And the Court considered the notice should say how, and 
 in what manner, the jury were misdirected, and that an 
 amendment ought not to be allowed when it is seen that the 
 grounds suggested are absurd, or do not go to the ground of 
 the inquiry or of the right in question. 
 
 Where, on an appeal being brought from a County Court, 
 one of the parties dies, after entry of the appeal, the High 
 Court has jurisdiction to give leave to add the personal repre- 
 sentative of the party so dying, and application need not be 
 made to the County Court (t). So, in the old case of lit in - 
 minfj v. William* (M), where defendant died before the 
 hearing of plaintiff's appeal, the Court allowed the plaintiff 
 to proceed after giving the notice prescribed by sect. 166 of 
 the Common Law Procedure Act, 1852. 
 
 The statute 13 & 14 Viet. c. 61, s. 14, required the party 
 appealing to give notice of appeal, and security for costs, 
 within ten days ; but the Court of Common Pleas held, in 
 Parkgate Iron Co. v. Coates (#), that these were not con- 
 ditions precedent to the jurisdiction of the Court to hear the 
 appeal, and might be waived by the respondent. 
 
 And so with regard to the old Rule 193 of 1867, which 
 required the appellant to transmit his case within three days 
 of its being signed (//}. 
 
 Security may now, by Ord. LVIII. r. 15, be ordered to be 
 given, under special circumstances, by the Court of Appeal, 
 and the time within which appeals must now be brought is 
 directed by the rules (z) . 
 
 Security was ordered to be given by the best friend of an 
 
 (r) Pfei/er v. The Midland Railway (1886), 18 Q. B. D. 243; 35 W. R. 
 
 335. See also 
 
 Murfett v. Smith (1887), 12 P. D. 116 ; 50 L. J. P. 374. 
 Taplin v. Taplin (1888), 13 P. D. 100 ; 57 L. J. P. 79; 37 W. R. 
 
 256 ; 58 L. T. 925 ; 52 J. P. 406. 
 (1854), 10 Ex. 472 ; 24 L. J. Ex. 22 ; 18 Jur. 1057. 
 Per Wills and Wright, JJ., in Jilakcu-ay \. rattcshall, (1894) 1 Q. B. 
 Similar leave was given in the two unreported cases, Williums v. 
 (1891), and Myers v. Wilson (1892). 
 
 (1871), L. R. 6 C. P. 480 ; 40 L. J. C. P. 270; 24 L. T. 755. 
 (1870), L. R. 5 C. P. 634 ; 39 L. J. C. P. 317 ; 22 L. T. 658 ; 18 W. R. 
 
 w 
 w 
 
 247. 
 Line 
 
 928. 
 
 (y) 
 W 
 
 Zichardson v. Silvester (1873), 29 L. T. 395 ; 22 W. R. 74. 
 
 See p. 76, infra.
 
 Procedure on Appeal. 47 
 
 infant who was appealing, but " from whom the successful 
 party in the Court below could not get his costs, owing to the 
 best friend's insolvency (a). 
 
 Applications for security are made under Crown Office 
 Eule 255, upon two clear days' notice of motion, being 
 brought on as if they were ex parte motions, and not put 
 into the Crown paper. 
 
 Waiver of the right of appeal by the guardian of an infant Waiver by 
 is a matter beyond the ordinary conduct of the action, and, guar^ 11 - 
 to be binding, must be for the benefit of the infant (b). 
 
 Where interpleader proceedings were transferred under the Appellate 
 Judicature Act, 1884, a. 17, from the Queen's Bench Division Sii 
 to a County Court, and on appeal the Queen's Bench Division 1876. 
 affirmed the County Court judgment, but gave leave to appeal 
 to the Court of Appeal, it was held, in the House of Lords, 
 that the Court of Appeal had jurisdiction under the Judica- 
 ture Act, 1873, sect. 45, to hear the appeal, that jurisdiction 
 not having been taken aw r ay by the Appellate Jurisdiction 
 Act, 1876, sect. 20 (c). 
 
 The notice of appeal from a County Court, in the case of Service of 
 an action which has been remitted from the High Court, notice - 
 should be served on the local solicitor, whose name and 
 address for service are given upon the particulars filed in 
 the County Court. Service on the London agent, whose 
 name and address for service appears on the original writ 
 in the High Court, is not sufficient to satisfy Ord. LIX. 
 r. 12(<7). 
 
 Nor, where the solicitor to the respondent carries on busi- 
 ness in the country, will service of notice of motion on his 
 London agent satisfy the terms of the Order (e). 
 
 The twenty-one days within which the notice of motion Time for 
 must be served, and the appeal entered, is to be calculated from appealing, 
 the time at which the judgment or order is signed, entered, 
 or otherwise perfected, or from the time when the finding 
 or refusal is made (/), and before the day mentioned in 
 
 (a) Swain v. Follows (1887), 18 Q. B. D. 585 ; 56 L. J. Q. B. 310 ; 56 L. T. 
 335 ; 35 W. R. 408. 
 
 (b) Shades v. Swithenbank (1889), 22 Q. B. D. 577 ; 58 L. J. Q. B. 287; 
 60 L. T. 856 ; 37 W. R. 457. 
 
 (e) Thomas v. Kelly (1888), 13 App. Gas. 506 ; 58 L. J. Q. B. 66 ; 37 
 
 W. R. 353 ; 60 L. T. 114 ; following 
 
 Crush v. Turner (1878), 3 Ex. Div. 303 ; 47 L. J. Ex. 639 ; 38 L. T. 
 
 595 ; 26 W. R,. 673. 
 
 (d) Malley v. Shepley (1893), 68 L. T. 294 ; 41 W. R. 63 ; 5 R. 78 ; 62 
 L. J. Q. B. 31. 
 
 (e) Jackson v. Margrett (1893), 68 L. T. 91 ; 5 R. 181 ; 41 W. R. 267. 
 
 Powell v. Thomas, (1891) 1 Q. B. 97 ; 63 L. T. 812 ; 39 W. R. 224. 
 (/) R. S. C., Ord. LIX. r. 12.
 
 County Court Appeals. 
 
 Time for the notice, if that falls before the twenty-first day (g}. But 
 where the finding of a jury in a County Court is complained 
 of, the twenty-one days are to be calculated from the time 
 when the verdict was given, though judgment upon it was 
 deferred till a later date (It) . 
 
 Where, in order to enable a plaintiff to appeal within the 
 eight days prescribed by the County Courts Act of 1875, the 
 judge permitted his judgment, delivered on April 18th, to be 
 entered as delivered on May 2nd, it was held that the appeal 
 was not brought within eight days of the "ruling, order, 
 direction, or decision," as prescribed by the Act (/). But an 
 appeal was held to be in time where a non-suit had been 
 entered at the trial, and the notice had been given within the 
 prescribed time from the date of a refusal of the County 
 Court judge to set aside the non-suit (/.). 
 
 Where the time has elapsed, an extension will not readily 
 be granted (/), even though it may appear that the parties 
 attended at the office to execute the necessary documents in 
 time, but did not complete them (m). Still less will it be 
 granted if the time has elapsed before the parties attended (). 
 
 But the Court has discretion as to granting an extension of 
 time, the Court of Appeal holding, in Cusack v. L. 8f JN~. W. 
 Hail. (0), that the decision in Reg. v. Kettle (p) was not in- 
 tended to lay down otherwise, and dissenting from Collins v. 
 Vestry of Paddlnyton (</), where a distinction was recognized 
 between applications for an extension of time previous to the 
 trial of the action and those for appealing after judgment, 
 there being in truth no ground for any such distinction to 
 govern the exercise of the discretion vested in the Court. 
 
 Where a notice of motion of appeal was given for a day 
 not in the sittings of the Court, the Court of Appeal still 
 held that the notice was good (r), overruling Danbney v. 
 
 ( g ) Donovan v. Broicn (1879), 4 Ex. D. 148; 48 L. J. Ex. 456; 27 W. R. 
 
 648, following 
 
 In re National Funds Assurance Co. (1876), 4 Ch. D. 305 ; 46 L. J. 
 Ch. 183 ; 35 L. T. 689 ; 25 W. R. 151, 158. 
 
 (A) Rawnsley v. Lancashire and Yorkshire Railway, C. A. (1887), 35 W. R. 
 771. 
 
 (t) Wilberforce v. Sowton (1878), 48 L. J. C. P. 28 ; 39 L. T. 474. 
 
 (*) Hemming v. Blanlon (1873), 42 L. J. C. P. 158 ; 21 W. R. 636. 
 
 (/) Cook v. Jones (1861), 9 W. R. 618. 
 
 (m) Francis v. Dowdesivell (1874), 9 C. P. 423 ; 43 L. J. C. P. 248 ; 30 L. T. 
 607 ; 22 W. R. 755. 
 
 () Ward T. Raw (1872), L. R. 15 Eq. 83 ; 27 L. T. 601 ; 21 W. R. 116. 
 
 (o) (1891) 1 Q. B. 347 ; 60 L. J. Q. B. 208 ; 64 L. T. 45 ; 39 W. R. 244 ; 
 55 J. P. 341. 
 
 (p) (1886), 17 Q. B. D. 761; 55 L. J. Q. B. 470; 54L.T. 875; 31 W. R. 776. 
 
 (?) (1880), 5 Q. B. D. 368. 
 
 (r) In re Coidton (1886), 34 Ch. D. 22 ; 56 L. J. Ch. 312 ; 55 L. T. 464 ; 
 35 L. T. 464 ; 35 W. R. 49.
 
 Procedure on Appeal. 49 
 
 Shuttlcirorth (), and in similar circumstances an amendment 
 was permitted (t}. 
 
 In applications for a new trial, time runs from the granting Time for 
 or refusal of the application, that being an interlocutory - 
 
 matter from which, under the present Act, a right of appeal 
 exists (M). 
 
 Before the Act of 1888 permitted such appeals the practice 
 was different, it being held, where a new trial was applied 
 for and refused, that the time for bringing an appeal must be 
 reckoned from the date of the judgment, and not from that 
 of the refusal to grant a new trial (a-), and this even where 
 the County Court judge had caused the delay by taking a 
 fortnight to consider his decision, thus putting the appeal 
 from the judgment out of time (//) . 
 
 But where judgment was given for defendant, leave being 
 reserved for plaintiff to move to enter a verdict for him or for 
 a new trial, and notice of appeal was given, Martin, B., held 
 that plaintiff's right of appeal was to be reckoned from the 
 day the motion was refused, and not from the day of the 
 trial, as there had been no final determination or direction in 
 point of law until the judge pronounced judgment on the 
 motion to enter the verdict or for a new trial (z). 
 
 The Crown Office Rules of 1886 (a) provide that applica- 
 tions for a new trial, or to enter judgment non obstante vere- 
 (lieto, or to arrest judgment where such applications may by 
 law be made, are to be by motion for an order nisi. Such 
 motion is to be made to a Divisional Court of the Queen's 
 Bench Division, and, in cases tried in London or Middlesex, 
 within eigh.t days after the trial or on the first subsequent 
 day on which a Divisional Court shall sit to hear motions on 
 the Crown side ; or if the trial has been heard at the assizes, 
 within the first seven days after the last day of the sittings 
 on the circuits for England and Wales. The time of the 
 vacations is not to be reckoned in the computation of time 
 for moving. 
 
 In either case the time may be extended by the Court or a 
 
 (*) (1876), 1 Ex. D. 53 ; 45 L. J. Ex. 177 ; 34 L. T. 357 ; 24 W. R. 321. 
 (t) JTiinama v. De Bointille (1886), 17 Q. B. D. 180; 54 L. T. 732; 34 
 W. R. 702. 
 
 (u) Pole v. Bright, (1892) 1 Q. B. 603 ; 65 L. T. 748 ; 40 W. R. 95 ; 61 
 L. J. Q. B. 139 ; and see other cases cited on pp. 33, 34. supra. 
 
 (x) McHardy \. Liptrott (1887), 19 Q. B. D. 151 ; 56 L. J. Q. B. 459. 
 
 Jacobs v. Dawkes (1887), 56 L. J. Q. B. 446; 56 L. T. 919; 35 
 
 W. R. 649. 
 
 (if) Morris v. Lowe (1885), 34 W. R. 45. 
 ) Foster v. Green (1861), 30 L. J. Ex. 263 ; 6 H. & N. 793. 
 (a) Rule 166. 
 C. E
 
 50 
 
 County Court Appeals. 
 
 Applica- 
 tions : 
 For time ; 
 To strike 
 out; 
 For spe- 
 cial case ; 
 To ac- 
 celerate ; 
 In quo 
 warranto ; 
 In cri- 
 minal in- 
 forma- 
 tion. 
 
 Evidence. 
 
 Orders. 
 
 Hearing. 
 
 judge, the grounds upon which the order is granted being 
 stated in the order (b), a copy of which must be served on the 
 opposite party within four days from the time of its being 
 granted (c}. 
 
 It is no objection to a new trial that a juror was withdrawn 
 at the trial, upon terms, if the latter have not been carried 
 ot(rf). 
 
 Applications 
 
 (a) For time, enlargement, stay, or security ; 
 
 (b) To strike a case out of the Crown paper ; 
 
 (c) To file a special case by leave of the Court ; 
 
 (d) To accelerate a case in the Crown paper on the 
 
 ground of urgency ; 
 
 (e) To substitute a new relator, on an information quo 
 
 icarranto, for the original relator; 
 
 (f) For costs to a defendant in criminal information to 
 
 the amount of the recognizance ; 
 
 should be made upon two clear days' notice of motion, and be 
 brought on as if they were ex parte motions, and not put into 
 the Crown paper (e). 
 
 And when any such motion is made and founded on 
 evidence by affidavit, a copy of such affidavit intended to 
 be used shall be served with the notice of motion (/). 
 
 Rule 258 provides that " no order on the Crown side, 
 except orders of course, shall be drawn up without the leave 
 or order of the Court, of a judge, or of the Queen's Coroner 
 and Attorney, or the Master of the Crown Office " (g). 
 
 And if, on the hearing of a motion or other application, 
 the Court or a judge is of opinion that any person to whom 
 notice has not been given ought to have or to have had such 
 notice, the Court or judge may dismiss the motion or appli- 
 cation, or adjourn the hearing thereof, in order that such 
 notice may be given upon such terms, if any, as the Court or 
 judge may think fit to impose (//). 
 
 It was decided, on the introduction of appeals by motion, 
 that the old practice will be adhered to of hearing only one 
 counsel on each side in appeals from inferior Courts ; counsel 
 for appellant opening, and replying after counsel for respon- 
 
 (*) C. O. R. 167 of 1886. 
 
 (c) C. O. R. 168 of 1886. 
 
 (d) Thomas v. Exeter I'lying Post (1887), 18 Q. B. D. 822 ; 56 L. J. Q. B. 
 313 ; 56 L. T. 361 ; 35 W. R. 594. 
 
 (e) C. O. R. 255 of 1886. 
 (/) C. O. R. 256 of 1886. 
 fjrl C. O. R. 258. 
 
 (h) C. O. R. 260 of 1886.
 
 Procedure on Appeal. 51 
 
 dent lias argued in support of the judgment (/). But two 
 counsel are heard on each side in the Court of Appeal (A-) . 
 
 Ord. XXXIII. of the Rules of the Supreme Court, 1883, 
 is, as far as it is applicable, to apply to all civil proceedings 
 on the Crown side (I). 
 
 In all proceedings on the Crown side: "Upon any motion On affi 
 or summons, evidence may be given by affidavit ; but the 
 Court or a judge may, on the application of either party, 
 order the attendance for cross-examination of the person 
 making any such affidavit " (m) . 
 
 " Affidavits used on the Crown side must be intituled ' In 
 the High Court of Justice, Queen's Bench Division,' and 
 must be confined to such facts as the witness is able of his 
 own knowledge to prove, except on interlocutory motions, on 
 which statements as to his belief, with the grounds thereof, 
 may be admitted." 
 
 The costs of every affidavit which unnecessarily sets forth 
 matters of hearsay, or argumentative matter, or copies of or 
 extracts from documents, will have to be borne by the party 
 who filed them (), and no affidavit can be used without leave 
 of the Court or judge if filed after the time limited (o). 
 
 The general rules issued for use in County Courts cannot 
 be modified by the practice established by the judge of a 
 particular Court (_/;). 
 
 (0 Haices v. Pcake (1876), 33 L. T. 818 ; 24 W. B. 407. 
 
 (k) Sneesby v. L. $ T. Railway (1875), 1 Q. B. D. 42 ; 45 L. J. Q. B. 1. 
 
 Hoare v. Bremridge (1872), 21 W. E. 43 ; 42 L. J. Ch. 1 ; 27 L. T. 
 
 593. 
 
 (Z) C. O. E. 5 of 1886. 
 
 (m) C. 0. E. 6 of 1886. 
 
 () C. O. E. 9 of 1886. 
 
 (o) C. O. E. 23 of 1886. 
 
 (p\ The Cashmere (1890), 15 P. D. 121 ; 59 L. J. P. 57 ; 62 L. T. 814 ; 38 
 W. E. 623. 
 
 In the old case of Tattersall v. Fearnley ( (1856), 17 C. B. 369), Jervis, C. J., 
 observed that materials for hearing County Court appeals must be supplied 
 for the use of all the members of the Court. In Fallows v. Slatter ( (1869), 
 20 L. T. 104), it was held, that every appeal from the County Courts 
 ought to be accompanied by a case containing a statement of the facts, and 
 the grounds of the appeal. In Slattery v. Axton ( (1866), 14 L. T. N. S. 510), 
 the Vice-Chancellor declined to proceed with an appeal until a case had been 
 submitted by the judge ; and this was followed in the case of Railton v. 
 Easy (1869), V 19 L. T. N. S. 715. And the judge was bound to sign a case 
 for appeal if it correctly stated the facts and the judgment (Irving v. Askew 
 (1870), L. E. 5 Q. B. 209) ; and a rule would issue against him to show 
 cause for his refusal (Clarke v. Roche (1877), 36 L. T. N. S. 78) ; or compel 
 him to do so, or to amend a note if one was incompletely made (Gt. E. Rail. 
 Co. v. Giddons (1880), 44 J. P. 284 ; Furber v. Sturmy (1858), 4 Jur. 956) ; 
 although the granting or refusing such a rule was discretionary. (Sharrock 
 v. L. % N. W. Rail. Co. (1875), 1 O. P. D. 70.) 
 
 E 2
 
 County Court Appeals. 
 
 CHAPTER X. 
 
 Power of 
 appellate 
 Court. 
 
 Ord. 
 LVIII. 
 r. 1. 
 
 Discharge 
 of order. 
 
 Ord. 
 LVIII. 
 r. 2. 
 
 Service on 
 
 other 
 
 persons. 
 
 Ord. 
 
 LVIII. 
 
 r. 4. 
 
 Further 
 
 evidence. 
 
 POWERS OF APPELLATE COURT REVERSAL OF JUDGMENT AND 
 AWARD OF DAMAGES. 
 
 THE appellate Court may draw any inference of fact, or 
 order a new trial, or order judgment to be entered for any 
 party, or make any final or other order or judgment as it 
 may think proper, to ensure the determination on the merits 
 of the real questions in controversy between the parties (a) . 
 
 A substantial wrong or miscarriage must, however, be per- 
 ceived to have been occasioned before an appellate Court 
 will permit a motion by way of appeal to succeed (b). 
 
 ALL appeals come before the appellate Court by way of 
 rehearing (c), and so such judgment will be given as should be 
 given if the case came at .that time before the Court of first 
 instance (d). 
 
 Where an order has been made against a party, he may 
 apply by motion ex parte to discharge the order, though it 
 has been passed and entered (e). 
 
 The appellate Court may direct notice of an appeal to be 
 served upon any person not a party, and postpone or adjourn 
 the hearing in the meantime (/) ; and possesses all the powers 
 and duties of amendment and otherwise of the High Court, 
 with full discretionary power to receive further evidence upon 
 questions of fact, oral or by affidavit or by deposition, taken 
 before an examiner or commissioner (y) . Such f urther 
 evidence may be given without special leave upon interlocu- 
 tory applications, or as to matters which have occurred after 
 
 (a) 51 & 52 Viet. c. 43, s. 122 ; R. S. C., Ord. LIX. rr. 7 et sea ; Ord. 
 LVIII. r. 4. 
 
 (b) R. S. C., Ord. LIX. r. 7. 
 (<?) R. S. C., Ord. LVIII. r. 1. 
 
 (d) Quitter v. Mapleson (1882), 9 Q. B. D. 672 ; 52 L. J. Q. B. 44 ; 47 L. T. 
 562 ; 31 "W. R. 7'>. 
 
 (e) Boyle v. Sackei- (1888), 39 Ch. D. 249 ; 58 L. T. 822 ; 37 "W. R. 68. 
 (/) R. S. C., Ord. LVIII. r. 2 ; Purnell v. G. 11'. Railwy (1876), 1 
 
 Q. B. D. 636. 
 
 Hunter v. Hunter (1876), 24 W. R. 527. 
 (9) R. S. C., Ord. LVIII. r. 4.
 
 Potvers of Appellate Court. 53 
 
 the date of the decision appealed against. But it will only 
 be admitted on special grounds by special leave in appeals 
 from judgments after trial (//). 
 
 If, on hearing an appeal, the Court considers a new trial Ord. 
 should be had, it may set aside the verdict and judgment and L ^ m - 
 order the new trial (i). 
 
 A respondent need not give notice by way of cross-appeal ; Ord. 
 but if he intends to contend that the decision below should LVIII. 
 be varied he must give notice to the parties interested ; r ' 6- 
 and whilst omission to give such notice will not diminish the appeals 
 powers of the Court, it may be ground for an adjournment 
 or for a special order as to costs (). 
 
 Where an c.c parte application has been refused by the Ord - 
 Court below, an application for a similar purpose may be TJ 
 made to the Court of Appeal ex parte within four days from 
 the date of such refusal, or within such enlarged time as a 
 judge of the Court below, or of the Court of Appeal, may 
 allow (/). 
 
 "When necessary, as Lush, J., said (in), the appellate Court Setting 
 will act upon the wholesome provision of the Judicature Act, ^^ e 
 187-3 (), and direct that the judgment for the plaintiff below 
 be set aside and judgment entered for the defendant. 
 
 It was frequently held that this could be done under the 
 County Courts Act of 1845 (o), or a non-suit entered where 
 judgment was given for plaintiff in the County Court (/>). 
 
 The appellate Court will order judgment to be entered as, Proper 
 upon hearing the whole of the evidence, it considers it ought 
 to have been given by the County Court judge ; or it may 
 assess the damages (<?) . If the facts do not sufficiently esta- 
 blish the judgment, it will be reversed (/). 
 
 And where the County Court judge wrongly non-suits the 
 plaintiff, the High Court, to prevent further litigation, may 
 
 (h) Ibid. 
 
 (i) R. S. C., Ord. LVIII. r. 5. 
 
 (k) Ibid. r. 6. 
 
 (I) Ibid. T. 10. All the paragraphs, supra, which are cited as being based 
 on this Order (Ord. LVIII.), are subject to the terms of the rule, which 
 makes Ord. LVIII. applicable " so far as is practicable" : i.e., Ord. LIX. 
 r. 17. See also C. O. R. 216. 
 
 (m) Eastland v. Bttrchell (1878), 3 Q. B. D. 432 ; 47 L. J. Q. B. 500 ; 38 
 L. T. 563. 
 
 (it) And Ord. XL. r. 10. 
 
 (o) 13 & 14 Viet. c. 61, s. 14. See WkiUaumi. Hawkins (1879), 4 C. P. D. 
 13 ; 39 L. T. 629 ; 27 W. R. 262. 
 
 (p) Fuller v. Cleveley (1853), 17 Jur. 736. 
 
 (q) King v. The Oxford Co-operative Society (1884), 51 L. T. 94. 
 
 (r) Snowden v. Baynes (1890), 24 Q. B. D. 568 ; 59 L. J. Q. B. 325 ; 38 
 W. R. 558 ; upheld on appeal, 25 Q. B. D. 193 ; 59 L. J. Q. B. 558; 38 W. R. 
 744.
 
 54 
 
 County Court Appeals. 
 
 But ver- 
 dict of 
 jury will 
 stand if 
 justified. 
 
 fix a nominal sum for damages which the County Court 
 judge ought to have fixed (.s). 
 
 But where the jury in the County Court have given a 
 general verdict for damages, without answering the specific 
 questions put to them by the judge, the appellate Court will 
 not reverse their finding and damages if there was some 
 evidence to go before them on which such a verdict could be 
 supported (t). 
 
 So, also, where there was evidence upon which the County 
 Court judge might not unreasonably have arrived at the 
 finding that he in fact arrived at, the appellate Court will 
 uphold his judgment (?/). 
 
 (*) Churchward v. Johnson (1890), 54 J. P. 326. 
 (t) Amos v. Duffy (1890), 4 T. L. R. 339. 
 
 (w) Le Blanche v. L. % N. W. Railway (1876), 1 C. P. D. 286 ; 45 L. J. 
 C. P. 521 ; 34 L. T. 667 ; 24 W. E. 808.
 
 55 
 
 CHAPTER XI. 
 
 APPEALS FROM DIVISIONAL COURTS TO THE COURT OF 
 APPEAL. 
 
 THE determination by a Divisional Court of an appeal from Second 
 a County (or other inferior) Court is final, unless special leave appeals, 
 to appeal to the Court of Appeal be given by the Divisional Only by 
 Court by which such appeal has been heard (a), the meaning H a ^ e . . 
 of which rule, Lord Esher, M.It., said (b), was to confine the 8 i nal 
 power to give leave to appeal absolutely to Divisional Courts. Court. 
 But now, by the Judicature Act, 1894, sect. 1, sub-sect. 5, Judicature 
 leave may be given by the Court of Appeal as well as by the Act) 1J 
 Divisional Court. The Court of Appeal may be applied to Or of 
 ex parte, notwithstanding Ex partc Stevenson (c), the rule of. Court of 
 practice being to refuse such leave unless the applicant can 
 show, clearly and briefly, without going through all the 
 evidence, that injustice has been done (d). Prior to this Act, 
 the Court of Appeal had no power to give leave to an appli- 
 cant who had been refused by the Divisional Court (e). 
 
 It was held in 1878 that, notwithstanding the Appellate 
 Jurisdiction Act of 1876, sect. 20, an appeal lay to the Court 
 of Appeal from the decision of a Divisional Court if special 
 leave were given to appeal under the Judicature Act, 1873, 
 sect. 45, upon a case stated by a County Court judge under 
 13 & 14 Viet. c. 61, s. 14 (/). 
 
 Leave may be given conditionally upon security being Condi- 
 lodged within a stated time (g). tional 
 
 leave. 
 
 (a) Judicature Act, 1873, s. 45 ; Ex parte Schofeld, (1891) 2 Q. B. 428 ; 60 
 L. J. M. C. 157 ; 64 L. T. 780 ; 39 W. R. 580 ; 56 J. P. 4 ; 7 T. L. R. 615 ; 
 17 Cox, C. C. 303. 
 
 (b) Kaii v. Brings (1889), 22 Q. B. D. 343 ; 58 L. J. Q. B. 182 ; 60 L. T. 
 775; 37 W. R. 291. 
 
 (e) (1892) 1 Q. B. 609; 61 L. J. Q. B. 492; 66 L. T. 544; 44 W. R. 
 417 ; 56 J. P. 501 ; 8 T. L. R. 232 : affirming, (1892) 1 Q. B. 394 ; 56 J. P. 
 408. 
 
 (d) Hatckins v. G. W. Railway (1895), 14 R. 350. 
 
 (e) Nay v. Briggs (1889), 22 Q. B. D. 343 ; 58 L. J. Q. B. 182 ; 60 L. T. 
 775 : 37 W. R. 291. 
 
 (/) Crush v. Turner (1878), 3 Ex. D. 303 ; 47 L. J. Ex. 639 ; 38 L. T. 
 595 ; 26 W. R. 673. 
 
 (>j) As in irjta'lt"/ v. IIS.'.o'i'i'j (1S90). 62 L T. 630 ; 51 J. P. 045.
 
 County Court Appeals. 
 
 No leare 
 required 
 
 hibition. 
 
 Actions 
 
 But an appeal lies without leave from the decision of a 
 Divisional Court upon an application for a prohibition to a 
 County Court, Fry and Lopes, L..IJ., agreeing that this 
 right existed before the County Courts Act, 1888, and that 
 sect. 128 of that Act left that right as it was before (//). 
 
 Since an action which had been sent for trial to a County 
 
 Court under sect - 26 of 19 & 20 Vict c - 108 > did not thereby 
 become a cause in the County Court, but remained in the 
 High Court, an appeal was held to lie from the judgment of 
 a Divisional Court, without special leave being obtained, 
 under sect. 45 of the Judicature Act, 1873 (*'). 
 
 In the case last cited, JBoiclcs v. Drake (A-) was relied on to 
 show that there was no appeal, without leave of the Divisional 
 Court, where the action had been sent to the County Court 
 for trial under 30 & 31 Viet. c. 142 ; and it was contended 
 that there was no difference where the action had been sent 
 for trial under sect. 26 of 19 & 20 Viet. c. 108. 
 
 Against this a number of cases were cited (/) ; and Brett, 
 L.J., considering the two enactments i.e., sect. 26 of 19 & 20 
 Viet. c. 108, and sect. 7 of 30 & 31 Yict. c. 142 recognized 
 the general similarity of the conditions under which the Court 
 would act under both sections, but thought that sect. 7 of 
 30 & 31 Viet. c. 142, was not inconsistent with sect. 26 of 
 19 & 20 Viet. c. 108, and both sections could be read 
 together, it following that sect. 26 of the earlier Act was 
 not impliedly repealed by the later Act, 30 & 31 Viet. 
 c. 142. 
 
 In Boicles v. Drake (in}, it was decided that an appeal 
 would not lie, the Court relying on the terms of the latter 
 part of sect. 10 of 30 & 31 Viet. c. 142, and that case decided 
 that there is no appeal without special leave in all cases within 
 sects. 7, 8 and 10 of 30 & 31 Viet. c. 142, which are to be 
 treated as if the actions had been originally commenced in 
 the County Court. But no such words were contained in 
 sect. 26 of 19 & 20 Viet. c. 108, and under that section the 
 
 (A) Lister v. Wood (1889), 23 Q. B. D. 229 ; 37 "W. R. 738 ; 53 J. P. 773. 
 (i) - abbayev.Coulbourn(1882),5'2~L. J.Q.B. 50; 46L.T.515: approving 
 Balmforth v. Pledge (1866), L. R. 1 Q. B. 427 ; 35 L. J. Q. B. 169 ; 
 12 Jur. N. S. 644. See judgment of Brett, L. J., and cases there cited. 
 (k) (1881), 8 Q. B. D. 325 ; 51 L. J. Q. B. 66 ; 45 L. T. 576 ; 30 W. R. 
 333 
 
 (/) - Wheatcroft v. Foster (1858), E. B. & E. 737; 27 L. J. Q. B. 277. 
 Balmforth v. Pledge (1866), ubi sup. 
 
 Onborne v. Hamburg (1875), L. R. 1 Ex. D. 48 ; 45 L. J. Ex. 65. 
 Foster v. Vxherwood (1877), L. R. 3 Ex. D. 1 ; 47 L. J. Ex. 30 ; 
 Wilson's Judicature Acts, 3rd ed., p. 71. 
 
 (MJ) (1881), 8 Q. B. D. 325 ; 51 L. J. Q. B. 66 ; 45 L. T. 576 ; 30 W. R. 
 333.
 
 Appeals from Divisional Courts to Court of Appeal. 57 
 
 County Court judge might only try the case; he could not 
 give judgment, for the Registrar was to certify the result to 
 the Master's Office of the Supreme Court, and the judgment 
 was to be signed in the Supreme Court in accordance with the 
 certificate. 
 
 As Lush, J., had said in Baltnforth v. Pledge (), sect. 26 
 only says that the cause is to be sent for trial to the County 
 Court, the judge of which has only to try it, w r hen he 
 becomes ftoictuy officio, all jurisdiction as to new trials 
 remaining vested in the Court out of which the writ issued. 
 
 Brett, L.J., added that an appeal would therefore lie 
 from a Divisional Court, and sect. 26 did not render it 
 necessary that any special leave should be obtained under 
 sect. 45 of the Judicature Act, 1873. 
 
 Cotton, L.J., agreed that an action sent for trial under 
 sect. 26 of 19 & 20 Viet. c. 108, was different from one sent 
 for trial under sects. 7, 8 and 10 of 30 & 31 Viet. c. 142, 
 and no leave was necessary to appeal from the judgment of 
 the Divisional Court (o) . 
 
 (w) (1866), L. R. 1 Q. B. 427 ; 35 L. J. Q. B. 169 ; 12 Jur. N. S. 644. 
 
 (o) For the sections of the Act of 1888 relating to remitted actions and 
 conclusions as to the right of appeal existing in connection therewith, see 
 p. 8, ante.
 
 58 County Court Appeals. 
 
 CHAPTEE XII. 
 
 APPEALS FROM THE MAYOR'S COURT. 
 
 Mayor's IF either party appearing on the trial of any cause in which 
 of-i857^ Ct ^ e sum sou g a t t be recovered " (1) shall exceed 20/., be 
 8 . s. ' dissatisfied with (2) the determination or direction of the 
 Court in point of law, or upon (-3) the admission or rejection 
 of any evidence, he may appeal from the same to the High 
 Court, provided that he (1) within two days after such deter- 
 mination or direction (2) give notice of appeal to the other 
 party or his solicitor, and also (3) give security within such 
 time or times as the Court shall direct, to be approved of by 
 the registrar of the Court (if the judge shall so direct), for the 
 costs of the appeal, whatever be its event, and for the amount 
 of the judgment if he be defendant, and the appeal be dis- 
 missed." 
 
 Such security, however, so far as regards the amount of the 
 judgment,- is not to be required where the judge of the Court 
 has ordered the party appealing to pay the amount of such 
 judgment into the hands of the registrar, and the same shall 
 have been paid accordingly. 
 
 And the appellate Court may either " (1) order a new trial 
 on such terms as it shall think fit ; or (2) order judgment to 
 be entered for either party (as the case may be) ; and (3) make 
 such order as to the costs of the appeal as it may think 
 proper." 
 
 And such orders will be final (a) . 
 
 It is a condition precedent to the right of appeal that the 
 appellant should have given security for the costs of the 
 appeal as provided for by this section, which has not been 
 repealed by Ord. LIX. rr. 1017, E. S. C. (b). 
 
 The Mayor's Court being an inferior Court (c) appeals from 
 
 (a) Mayor's Court Procedure Act, 1857, s. 8. 
 
 (W Morgan v. Bowles, (1894) 1 Q. B. 236 ; 10 R. 62 ; 63 L. J. Q. B. 84 ; 
 42 W. R. 269. 
 
 (c) Mayor of Loxdon v. Cox (1866), L. R. 2 H. L. 239; 36 L. J. Ex. 
 
 _"J.5 ; 16 W. R. 41. 
 
 Applefordv. Judkins (1878), 3 C. P. D. 489; 47 L. J. C. P. 615 ; 
 
 38 L. T. 801 ; 26 TV. R. 734.
 
 Appeals from the Mayors Court. 59 
 
 it will lie to the High Court, and should be brought by motion 
 to the Divisional Court as directed by Ord. LIX., E. S. 0. 
 
 Similarly, the decision of the Divisional Court, on appeal Appeals 
 from the Mayor's Court, will be final, and no appeal will lie f f om Dlv1 ' 
 to the Court of Appeal unless special leave be given (d}. Court to 
 
 Sect. 10 of the Mayor's Court Procedure Act, 1857, pro- Court of 
 vides that the parties in any case in the Mayor's Court may, -A-PP 6 * 11 ' 
 if the judge grants leave, move in the superior Courts to set Setting 
 aside the verdict. But it has been held (e) that Ord. LIX. verdict. 
 r. 10, which provides that all appeals from inferior Courts 
 shall be by notice of motion, does not make it necessary, where 
 the sum sought to be recovered in the Mayor's Court exceeds 
 201., and a motion to set aside the verdict and judgment on 
 the. ground of misdirection is made in the High Court, that 
 leave of the judge of the Major's Court should be obtained. 
 
 The practice as to the notice, the motion, and its hearing 
 will, in consequence of the application of Ord. LIX., R. S. C., 
 be similar in appeals from the Mayor's Court to that which 
 obtains in appeals from County Courts, and which has already 
 been considered (/) . 
 
 There is no provision in the Mayor's Court Procedure Act, Judge's 
 1857, for the taking of a note by the judge at the request n te - 
 of either party for purposes of appeal. Sect. 9 did, indeed, 
 provide that such appeals should be in the form of a case 
 agreed on by both parties or their attorneys ; but the effect of 
 Ord. LIX. in causing appeals to be by motion, and the absence 
 of an amending Act supplying a special form of procedure in 
 place of the case (such as was supplied by the County Courts 
 Act, 1875, and its successor of 1888), would appear to leave 
 appeals from the Mayor's Court to be heard on such materials 
 as may be forthcoming, and as are usually presented in appeals 
 from inferior Courts to the High Court. 
 
 The 10th section of the Mayor's Court Procedure Act, Sect. 10. 
 1857, provides that " if upon the trial of any issue the judge 
 shall grant leave to the plaintiff or defendant to move in any 
 of the superior Courts to set aside a verdict or a non-suit, and 
 to enter a verdict for the plaintiff or defendant, or to enter a 
 non-suit (as the case may be) , or for a new trial, the party to 
 whom such leave may have been given may apply by motion 
 to such superior Court within such period of time after the 
 trial as motions of the like kind shall from time to time be 
 permitted to be made in such superior Court for a rule to 
 show cause why such verdict or non-suit should not be set 
 
 (d) Applefordv. Judkins (1878), uli sup. ; Judicature Act, 1873, s. 45. 
 (>) Erfer v. Levy (1887), 19 Q. B. D. 210 ; 56 L. J. Q. B. 650. 
 
 (f) Vide p. -12 ct *cy., sxpra.
 
 60 County Court Ajywals. 
 
 aside and a verdict entered for the plaintiff or defendant, or a 
 non-suit entered, or why a new trial should not be had (as 
 the case may be) in such action." 
 
 And such Court is empowered to grant or refuse such rule 
 (which rule, when granted, will operate as a stay of pro- 
 ceedings until the determination thereof), and afterwards to 
 proceed to hear and determine the merits thereof, and to make 
 such orders thereupon, and as to costs, as the same Court shall 
 think proper. 
 
 And in case such Court shall order a new trial to be had in 
 any such action, the party obtaining such order shall deliver 
 the same, or an office copy thereof, to the registrar of the said 
 Court ; and thereupon all the proceedings on the former 
 verdict or non-suit shall cease, and the action shall proceed to 
 trial according to the practice of the Court, in like manner as 
 if no trial had been had therein. 
 
 Or, in case the Court before whom such rule shall be heard, 
 shall order the same to be discharged, the party obtaining 
 such order may, upon delivering the same, or an office copy 
 thereof, to the registrar, be at liberty to proceed in any such 
 action as if no such rule nisi had been obtained. 
 
 And if a verdict be ordered to be entered for the plaintiff 
 or defendant, or a non-suit be ordered to be entered (as the 
 case may be) judgment shall be entered accordingly.
 
 61 
 
 CHAPTER XIII. 
 
 APPEALS IN BANKRUPTCY. 
 
 THE Bankruptcy Appeals (County Courts) Act, 1884 (), Bank- 
 provides that an appeal shall lie in bankruptcy matters, at the P tc y 
 instance of any person aggrieved, from the order of a County (County 
 Court to a Divisional Court of the High Court of Justice, of Courts) 
 which the judge to whom bankruptcy business shall for the ' 1{ 
 time being be assigned shall, for the purpose of hearing any 
 such appeal, be a member. 
 
 The decision of such Divisional Court upon any such ap- 
 peal is final and conclusive, unless leave be given to appeal to 
 the Court of Appeal, 
 
 (1) by the Divisional Court, or 
 
 (2) by the Court of Appeal. 
 
 And the decision of the Court of Appeal is final and con- 
 clusive. 
 
 By the Regulation of 18th February, 1890 (ft), " (1) Every Kegula- 
 notice of motion by way of appeal must state the grounds on tion 18th 
 which it is contended that the order appealed from is erro- e '' 
 neous ; (2) and any objection that any of such grounds were 
 not taken in the Court below should be taken as a prelimi- 
 nary objection before the argument on that ground of appeal 
 is commenced." 
 
 When there is an appeal to the High Court from an order Interlo- 
 of a County Court in a bankruptcy matter, any order or ^d^rs on 
 direction incidental thereto, not involving the decision of the appeal, 
 appeal, may be given by the judge of the High Court for the 
 time being exercising bankruptcy jurisdiction, but any such 
 order or direction may be discharged or varied by the High 
 Court (c). 
 
 Except by leave of the Court, no appeal lies to the Court When 
 of Appeal from- 
 
 (a) any order made by consent ; 
 
 (b) or as to costs only ; 
 
 () 47 Viet. c. 9, s. 2. 
 
 (b) Set out in 7 Mor. 64. 
 
 (c) B. R. 134a.
 
 62 
 
 County Court Appeals. 
 
 Time. 
 
 Days 
 excepted. 
 
 Security 
 for costs. 
 
 Notice on 
 entry. 
 
 Ord. 
 LVIIL, 
 R. S. C. 
 
 (c) or where the property involved does not exceed 50/. ; 
 
 (d) or from the omission by the Court appealed from to 
 exercise any discretionary power ; unless, in its judg- 
 ment or on application made at the hearing, it shall 
 have expressly refused to exercise such power, in 
 which case an appeal will lie against such refusal (c/). 
 
 Appeals must be lodged within twenty-one days " (1) from 
 the date at which the order is signed, entered, or otherwise 
 perfected ; (2) or, in the case of the refusal of an application, 
 from the date of such refusal " (e). 
 
 Sundays and certain holidays appear to be included in such 
 calculation, but when the last day is a Sunday, Christmas 
 Day, Good Friday, or Monday or Tuesday in Easter "Week, 
 or a day appointed for public fast, humiliation, or thanks- 
 giving, or a day on which the Court does not sit (i.e., on 
 which the offices are closed), any act or proceeding will be in 
 time if done on the next day afterwards which is not one of 
 the days specified (/). 
 
 And where by the Bankruptcy Act or Rules the time 
 limited for doing any act or thing is less than six days, none 
 of the days mentioned are to be counted in computing such 
 time (#). 
 
 A sum of 20/. must be lodged as security for costs by the 
 appellant at or before the time of entering an appeal. But 
 the Court of Appeal may, in any special case, increase or 
 diminish, or entirely dispense with, this deposit (//). 
 
 Upon entering his appeal, an appellant must send forth- 
 with a copy of the notice of appeal to the registrar of the 
 Court appealed from, who marks thereon the date of its 
 receipt, and forthwith files it with the proceedings (i) ; and 
 upon the application of the senior Registrar of the High 
 Court transmits the file to him (). 
 
 Omission by the appellant to send a copy of the notice of 
 appeal forthwith, upon entering it, to the registrar of the 
 Court appealed from, will not be excused except under special 
 circumstances, and the Court has refused to hear more than 
 one appeal in consequence (/). 
 
 Subject to these rules, appeals to the Court of Appeal are 
 
 (d) B. R. 129. 
 
 (e) B. R. 130. 
 
 (/)B. A. 1883, s. 141. 
 (ff) B. R. 4. 
 (h) B. R. 131. 
 (.) B. R. 132. 
 (k) B. R. 133. 
 
 (I) In re Victoria, (1894) 1 Q. B. 259 ; 9 R. 132 ; 63 L. J. Q. B. 161 ; 70 
 L. T. 141 ; 42 W. R. 193; 1 Man. 1.
 
 Appeals in Bankruptcy. 63 
 
 regulated by Ord. LVIII. of the E. S. C., 1883, and its 
 amendments. 
 
 An application to rescind a receiving order, or to stay pro- Notice of 
 ceedings thereunder, or to annul an adjudication, is not heard a ppli<- 
 without proof that seven da} r s' notice of it has been served 
 upon the official receiver, together with a copy of the affidavits 
 in support. But the Court may give leave for the notice to 
 be served differently, and may make an interim order staying 
 such of the proceedings as it thinks fit (w). 
 
 Appeals in bankruptcy generally can only lie in con- 
 formity with such rules as may for the time being be in 
 force (). 
 
 The term "Court of Appeal " includes any Court to which, " Court of 
 under any Act for the time being in force, appeals lie from 
 " the Court.," as defined by the Bankruptcy Act, 1883, and 
 the Bankruptcy Rules (0) . 
 
 " The Court " is defined by the Bankruptcy Act, 1883, as "The 
 meaning the Court having jurisdiction under that Act (p) ; Court." 
 and by the Bankruptcy Rules the term is extended to include 
 a registrar when exercising the powers of the Court pursuant 
 to the Act or Rules (q). 
 
 In the result, the term " Court of Appeal " must be taken 
 to include a Divisional Court to which appeals are brought 
 from County Courts. 
 
 By sect. 104 of the Bankruptcy Act, 1883 (>), every Court Aggrieved 
 having jurisdiction in bankruptcy under that Act may review, P ersons - 
 rescind, or vary any order made by it under its bankruptcy 
 jurisdiction. 
 
 Orders in bankruptcy are appealable at the instance of any 
 " person aggrieved." 
 
 In Lord Justice James' opinion (given in a considered Lord 
 judgment), the term " person aggrieved " does not mean a Justice 
 man who is disappointed of a benefit which he might have 
 received if some other order had been made. A " person of. 
 aggrieved" must be a man who has suffered a legal grievance 
 a man against whom a decision has been pronounced which 
 has wrongfully deprived him of something, or wrongfully 
 refused him something, or wrongfully affected his title to 
 something (>r) . 
 
 ;M) B. R. 134b. 
 >0 B. A. 1883, s. 104 (d). 
 B. R. 3 (a). 
 B. A. 1883, s. 168 (1). 
 (q) B. E, 3 (a), 
 (r) 46 & 47 Viet. c. 52. 
 
 (rr) Re Sidebotham, Ex parte Sldebotham (1880), 14 Ch. D. 458 ; 49 L. J. 
 Bk. 41 ; 42 L. T. 783 ; 28 W. R. 715.
 
 Count!/ Court Appeals. 
 
 The following have (e.g.] been held to be aggrieved per- 
 sons, in whom the right of appeal is vested : 
 
 An unpaid creditor (s) ; 
 
 Ibid., by an order for registration of a resolution of 
 
 creditors (f) ; 
 
 A bill of sale holder whose title is affected (it) ; 
 A debtor who has been refused to be heard on a trustee's 
 
 application (.r) ; 
 
 Assignees under a deed whose title is affected (y] ; 
 A trustee, in similar circumstances (z) ; 
 A person (e.g., the Board of Trade) objecting to the 
 
 appointment of a trustee (a) ; 
 Any person who makes application to or is brought 
 
 before the Court, and has a decision against him (i) ; 
 Any creditor who satisfies the Court that the order takes 
 
 away something to which he is entitled, or imposes 
 
 upon him some liability, though his proof is not 
 
 admitted or tendered (c) ; 
 Any creditor who is dissatisfied with the decision of the 
 
 trustee or official receiver in respect of a proof (d). 
 
 Appeals in bankruptcy being given by the Bankruptcy Act, 
 1883, the Bankruptcy Appeals (County Courts) Act, 1884, 
 and the Bankruptcy Rules, together with Ord. LVIII. of the 
 R. S. C., the provisions as to the production of the judge's 
 note at the hearing of the appeal, as provided by the County 
 Courts Act, 1888, do not appear to apply. 
 
 Rule 11 of the Order just mentioned provides that when 
 any question of fact is involved in an appeal, the evidence 
 taken in the Court below bearing on such question shall, sub- 
 ject to any special order, be brought before the Court of 
 Appeal as follows : 
 
 (a) As to any evidence taken by affidavit, by the production 
 of printed copies of such of the affidavits as have been 
 
 (*) In re Payne (1886), 3 Mor. 270 ; 18 Q. B. D. 154 ; 35 W. R. 89. 
 ttj In re Webb (1876), 2 Ch. D. :*_'<;. 
 (M) In re Ell',*, /:.. part* Tin,,/,,,, (1870), 2 Ch. D. 229. 
 (x) In re Webb $ Sons (1887), 4 Mor. 52. 
 
 (y) In re Whelan (1878), 39 L. T. 361 ; 48 L. J. Bk. 43 ; 27 W. R. 156. 
 () In re Batten (1889), 22 Q. B. D. 685 ; 58 L. J. Q. B. 333 ; 37 W. R. 
 499; 6 Mor. 110. 
 
 (a) In re Lamb, (1894) 2 Q. B. 805 ; 1 Man. 373 ; 64 L. J. Q. B. 71 ; 71 
 L. T. 312; 9 R. 636. 
 
 (b) In re Reed, Bowen $ Co. (1887), 19 Q. B. D. 174 ; 56 L. J. Q. B. 447; 
 56 L. T. 876 ; 35 W. R. 660 ; 4 Mor. 225. 
 
 (c) In re Lang try (1894), 1 Man. 169 ; 63 L. J. Q. B. 570 ; 70 L. T. 736 ; 
 42 W. R. 496 ; 10 R. 220. 
 
 (4) B. R. 24, Sched. 2.
 
 Appeals in Bankruptcy. 65 
 
 printed, and office copies of such of them as have not 
 been printed ; 
 
 (b) As to any evidence given orally, by the production of 
 a copy of the judge's notes, or such other materials as 
 the Court may deem expedient (e). 
 
 Where evidence has not been printed in the Court below, Ord - 
 the Court or a judge thereof, or the Court of Appeal or a r ^ 2 ' 
 judge thereof, may order the whole, or any part thereof, to 
 be printed for the purpose of the appeal, and any party 
 printing evidence for the purpose of an appeal without such 
 order shall bear the costs thereof, unless the Court of Appeal 
 or a judge thereof shall otherwise order (/). 
 
 If, upon the hearing of an appeal, a question arise as to the Ord - 
 ruling or direction of the judge to a jury or assessors, the ^ 13 ' 
 Court shall have regard to verified notes or other evidence, and 
 to such other materials as the Court may deem expedient (g). 
 
 An appeal does not operate as a stay of execution, or of Ord. 
 proceedings under the decision appealed from, except so far LVIII. 
 as the Court appealed from, or any judge thereof, or the Court r ' ' 
 of Appeal, may order ; and no intermediate act or proceeding 
 is to be invalidated, except so far as the Court appealed from 
 may direct (/). 
 
 Where a party taking the preliminary objection that an Notice of 
 appeal was out of time did so without giving notice, the appeal prelimi- 
 
 f i -j.1 L L i '\ nary ob- 
 
 was dismissed without costs (i). jections 
 
 But the absence of any statement of the grounds of appeal should be 
 in the notice of appeal is not a reason for dismissing the gi ven - 
 appeal on a preliminary objection, such statement not being 
 a condition precedent to the hearing of appeals, although the 
 regulation of 18th February, 1890, already set out, should 
 be followed (ii) . 
 
 Application for leave to appeal from the decision of a Divi- Leave to 
 sional Court should be made immediately after it has been ^f^j. 
 
 given (A') . visional 
 
 An appeal lies to the Court of Appeal, and without leave, Court, 
 from the decision of the High Court upon a special case for Special 
 its opinion stated by a County Court sitting in bankruptcy case> 
 under sect. 97 (3) of the Bankruptcy Act, 1883 (/). 
 
 (e) R. S. C., Ord. LVIII. r. 11. 
 
 (/) Ibid. T. 12. (ff) Ibid. r. 13. (Ji) Ibid. r. 16. 
 
 (i) In re Blinkhorn, Ex parte Blease (1884), 1 Mor. 280; 14 Q. B. D. 
 
 123 ; 33 W. R. 432. 
 In re Speight, Ex parte Brooke (1884), 1 Mor. 280 ; 13 Q. B. D. 42. 
 
 (it) Re Smith, Ex parte Denbigh (1892), 9 T. L. R. 72. See the Regulation 
 on p. 61, ante. 
 
 (k) In re Walker, Ex parte Xickoll (1884), 1 Mor. 249 ; 47 Viet. c. 9, s. 2. 
 
 (I) In re Moon, Ex parte Dawes (1886), 17 Q. B. D. 275; 55 L. T. 114; 
 34 W. R. 752; 3 Mor. 105. 
 
 C. F
 
 66 County Court Appeals. 
 
 CHAPTER XIV. 
 
 APPEALS IN ADMIRALTY. 
 
 County AN appeal was given by the County Courts Admiralty 
 
 Courts Jurisdiction Act, 1868 (a), to the High Court of Admiralty (b) 
 
 J^Sdic-* 7 in an Admiralty cause : 
 
 tion Act, 1. From a final decree or order of a County Court ; 
 
 1868. 2. (By permission of the County Court judge) from any 
 
 Sect. 26. interlocutory decree or order therein ; 
 
 3. On security for costs being first given ((/) ; 
 
 4. And subject to such other provisions as general orders 
 
 shall direct (e). 
 
 Sect. 27. The time for appealing was fixed by the Act cited as within 
 ten days from the date of the decree or order appealed from, 
 unless an extension of time were granted by a judge of the 
 High Court of Admiralty on sufficient cause being shown (./') ; 
 
 Sect. 28. but no appeal was to be allowed if before the decree or order 
 was made in the County Court the parties agreed, by memo- 
 randum signed by them, their attorneys, or agents, that the 
 decree should be final (</). 
 
 The Act also prohibited appeals from being brought from 
 a decree or order of a County Court, except by express per- 
 mission of a judge of the High Court of Admiralty (h), but 
 this section has since been repealed (/'). 
 
 Sect. 30. On an appeal under the Act of 1868, an unsuccessful 
 appellant is to pay the costs of the appeal, " unless the 
 appellate Court shall otherwise direct," thus upholding the 
 
 (a) 31 & 32 Viet. c. 71, B. 26. 
 
 (l>) But now to a Divisional Court of the High Court of Justice. 
 (rf) But see The Delano, (1895) P. 40 ; 72 L. T. 125 ; 64 L. J. P. 8 ; 43 
 W. R. 65. 
 
 (e) 31 & 32 Viet. c. 71, B. 26. 
 
 (/) Ibid. B. 27. 
 
 (fl) Hid. s. 28. 
 
 (A) Jbid. s. 29. 
 
 (i) By 38 & 39 Viet. c. 50, s. 12.
 
 Appeals in Admiralty. 67 
 
 same judicial discretion in the matter of costs as generally 
 exists (/). 
 
 And no appeal was to be allowed unless the amount Sect. 31. 
 decreed or ordered to be due exceeded the sum of 501. (&); 
 from which it seems that the amount actually claimed in the 
 first instance is immaterial, the test being thus the reverse of 
 that applicable in general to County Court appeals, in which 
 the amount originally claimed, and not the amount given 
 in the judgment, is the material figure. 
 
 But the wording of the section, whilst preventing a defen- 
 dant from appealing unless the decree or order is over 50, 
 does not prevent a plaintiff who has recovered nothing from 
 appealing (/) . 
 
 Rather inconsistently, as it seems, with the rule of inter- Effect of 
 pretation already referred to, it has been held, that inasmuch S 011 ^ 7 
 as the language of the appeal section of the later County Act, 1888. 
 Courts' Act, 1888, is general in its terms, it will include an 
 appeal from the final judgment of a County Court in an 
 Admiralty action, in spite of the thirty-first section of the 
 County Courts Admiralty Jurisdiction Act, 1868 (HI). And 
 the earlier Act is impliedly repealed by the Act of 1888 
 to the extent of allowing the party aggrieved by the decision 
 of a County Court judge on a point of law to appeal though 
 the amount is under 50/., and though no security for costs 
 has first been given. But in respect of a question of fact, 
 the special provisions of the Act of 1868 are unaffected (n). 
 
 If, on any appeal under the Act in question, it appears Sect. 32. 
 expedient to the judge of the High Court of Admiralty that 
 any sale decreed or ordered to be made of the vessel or pro- 
 perty to which the cause relates should be conducted in the 
 High Court of Admiralty instead of in the County Court 
 from which the appeal is brought, he may direct the transfer 
 of the proceedings for sale, with or without the transfer of 
 the subsequent proceedings in the cause, to the High Court 
 of Admiralty, which Court shall have jurisdiction and all 
 powers and authorities relating thereto accordingly (0). 
 
 (j) 31 & 32 Viet. c. 71, s. 30. See Chapter on Costs, p. 73. 
 (*) Ibid. s. 31. 
 
 (/) The Falcon (1878), 3 P. D. 100; 47 L. J. Adm. 56; 17 W. R. 899; 
 26 W. R. 696 ; 38 L. T. 294. 
 
 (OT) The Eden, (1892) P. 67 ; 61 L. J. P. 68 ; 66 L. T. 387 ; 40 W. R. 415; 
 7 Asp. 174. 
 
 () The Delano, (1895) P. 40; 72L.T. 125; 64L.J.P. 8; 43W.R. 65. 
 
 Tlic Alert (1895), 72 L. T. 124. 
 
 Cousins v. Lombard Bank (1876), 1 Ex. D. 404 ; 45 L. J. C. P. 573 ; 
 
 35 L. T. 484; 25 W. R. 116. 
 (o) 31 & 32 Viet. c. 71, s. 32. 
 
 F2
 
 68 County Court Appeals. 
 
 Sect. 44. The Act was also to be read as one with so much of the 
 County Courts Act, 1846, and the Acts amending or extending 
 the same, as was (at the time of its passing in 1868) in force (p). 
 The express proviso of sect. 26 of the Act of 1868, limiting 
 the right of appeal in interlocutory decrees or orders to those 
 cases in which leave has been given by the County Court 
 judge, is apparently not affected by the general terms of the 
 appeal section of the County Courts Act, 1888, and so the 
 right of appeal given by the earlier Act is not enlarged by 
 the later one (<?). On this ground the judgment of Butt, J., 
 is intelligible, but the judgment contains a curious doubt as 
 to whether the County Courts Act of 1888 really gave an 
 appeal in interlocutory matters in general, and cites Can- v. 
 St ringer (r). Such a doubt must be finally dispelled by 
 Gibson v. Kihier(s), which interprets the Act differently, 
 and leaves the decisions in Carr v. Stringer (f) and Jonas v. 
 Long () no longer applicable. 
 
 T^ 6 , The judge's note has always been more freely dispensed 
 
 with in appeals in Admiralty than in appeals in the general 
 jurisdiction of the Courts, and the Act (.r) is silent as to the 
 procedure to be followed. 
 
 In 1879, an appeal came before Sir R. Phillimore with no 
 shorthand writer's notes of evidence, and no notes taken by 
 the judge of the County Court available for the purpose of 
 appeal, and the appeal was ordered to be heard on rim voce 
 evidence ; the parties being at liberty to procure the judge's 
 notes if they could, and if, on their being procured, they 
 were found to be of use for the purposes of appeal, the re- 
 spondents could apply to the Court again to make such use 
 of the notes as they could, or to set aside the order (//) . 
 
 More recently, where no notes of evidence had been taken 
 at the County Court, either by the judge or by a shorthand 
 writer, the defendants gave notice of appeal, and moved 
 before the Divisional Court in the Admiralty Division, con- 
 sisting of the President and Mr. Justice Barnes, and obtained 
 an order, under Ord. LXIX. r. 8 of the Rules of the Supreme 
 Court, that upon the hearing of the appeal the witnesses 
 
 (j)31 & 32 Viet. c. 71, s. 34. 
 
 (jV The Cashmere (1890), 15 P. D. 121 ; 59 L. J. P. 57 ; 62 L. T. 814 ; 38 
 W. JR. 623. 
 
 (r) (1858), E. B. & E. 123. 
 
 (*) (1893), 69 L. T. 310. 
 
 (t) (1858), E. B. & E. 123. 
 
 () (1888), 20 Q. B. D. 564; o7 L. J. Q. B. D. 298; 53 L. T. 787 ; 36 
 W. R. 315; 52 J. P. 468. 
 
 (x) 31 & 32 Viet. c. 71. 
 
 (y) The Cotifidence (1879), 40 L. T. 201.
 
 Appeals in Admiralty. 69 
 
 called and examined at the trial of the action in the Court 
 below, both of the plaintiffs' and defendants', might be 
 examined vim voce before the Divisional Court as to what 
 they had said in the Court below ; upon the ground that the 
 learned judge in the Court below had taken no note of the 
 evidence, and that otherwise the appellants would be deprived 
 of their right to appeal. Against this order the plaintiffs 
 appealed ; but the order of the Divisional Court was upheld, 
 Lord Justice Lindley saying that the Court had power to 
 make such an order, but that the evidence to be reproduced 
 should be confined to what was given before the County 
 Court, as the defendants were not entitled, under the rule, to 
 have a new trial. There might be some difficulty in pre- 
 venting fresh evidence being given, and the appeal so be- 
 coming practically a new trial ; but the Divisional Court 
 must be trusted to deal with that as they thought best. Lord 
 Justice Kay concurred, as no evidence was obtainable upon 
 which to hear the appeal except by calling the witnesses 
 and asking them what evidence they gave at the trial. 
 It was within the very letter of the rule for the Divisional 
 Court to call the witnesses before them and ask them to repeat 
 all that they had said. Lord Justice A. L. Smith con- 
 curred (s). 
 
 The Divisional Court in Admiralty has no jurisdiction to Cross 
 hear a cross appeal the subject-matter of which it has no app 68 ^. 
 jurisdiction to hear as an original appeal, the Court having 
 only an appellate jurisdiction (a). 
 
 An application to allow fresh evidence to be adduced at the Fresh evi- 
 hearing of an Admiralty appeal from an inferior Court may dence - 
 be made to a single judge of the Admiralty Division (b). 
 
 Before the Judicature Act, appeals from County Courts To which 
 possessing Admiralty jurisdiction, including the City of ^p^eaisin 
 London Court, lay to the Court of Admiralty (c) ; but this Admiralty 
 appellate jurisdiction was by the Judicature Act, 1873, trans- lie. 
 ferred to, and vested in, the High Court of Justice. Since 
 then Admiralty appeals have been heard by Divisional Courts 
 of the Probate, Divorce and Admiralty Division (d). 
 
 (z) The Crescent (1893), 1 R. 613 ; 68 L. T. 556 ; 62 L. J. P. 63 ; 41 W. R. 
 533 ; 7 Asp. M. C. 297. 
 
 (c) The Abie Holme, (1893) P. 173; 1 R. 607; 62 L. J. P. 51; 68 L. T. 
 862 ; 41 W. R. 572. 
 
 (b) The Eclipse (1889), 14 P. D. 71 ; 60 L. T. 899 ; Judicature Act, 1873, 
 B. 52 ; Ord. LIX. r. 17. 
 
 (c) 31 & 32 Viet. c. 71, s. 26. 
 
 (d) See Ord. LIX. r. 4, which is substantially the same as the former 
 Ord. LVIII. r. 19, of 1875.
 
 70 
 
 County Court Appeals. 
 
 Appeals 
 from 
 Liverpool 
 Court of 
 
 Procedure 
 on appeal. 
 
 By notice 
 of motion. 
 
 By instru- 
 ment of 
 appeal. 
 
 Enlarge- 
 ment of 
 time. 
 
 Appeals from the Liverpool Court of Passage now lie direct 
 to the Court of Appeal (e). 
 
 It was decided, under the County Courts Act, 1875 (which 
 gave an appeal by motion instead of by special case), that 
 Admiralty appeals from County Courts might still be brought 
 under the County Courts Admiralty Jurisdiction Act, 1868, 
 namely, by lodging the instrument of appeal in the prin- 
 cipal registry under the provisions of sect. 27 as well as 
 under the County Courts Act, 1875 (/). In the view of the 
 President and Butt, J., the Act of 1875 gave an additional 
 mode of appeal, without expressly or impliedly repealing that 
 which already existed. 
 
 It is supposed that, although the County Courts Act, 1888, 
 repeals its predecessor of 1875, yet, since it re-enacts that 
 appeals shall be by motion, and without direct reference to 
 the Act of 1868, the express provisions of the latter are not 
 repealed. 
 
 If the appeal is brought by notice of motion, the latter 
 must, by Ord. LIX. r. 12, be served, and the appeal entered, 
 within twenty-one days from the date of the judgment, order 
 or finding complained of, the Court having power, however, 
 to extend that time (#). 
 
 If by instrument of appeal, the latter, together with 
 security, must be lodged within ten days after the finding 
 to be appealed against, the security being given in the 
 County Court (A), and the instrument of appeal being lodged 
 in the High Court to which the appeal is brought ; the High 
 Court also having power to extend the time on good cause 
 being shown (t). 
 
 The instrument of appeal, though not defined in the Act, 
 may, it seems, consist of a short statement of the cause, the 
 finding complained of, and a declaration that an appeal will 
 be made (k). 
 
 Application for enlargement of time should be made to the 
 Divisional Court, or, if not sitting, to a judge of the Admiralty 
 Division. 
 
 (e) Liverpool Court of Passage Act, 1893 ; Anderson v. Dean, (1894) 2 Q. B. 
 222 ; 9 R. 418 ; 63 L. J. Q. B. 668 ; 70 L. T. 830 ; 42 W. R. 47'2. 
 
 (f) The Humber (1883), 9 P. D. 12; 32 W. R. 664; 53 L. J. P. 7; 49 
 L. T. 604 ; 5 Asp. M. C. 181. 
 
 (g) Tenant v. Maiding* (1879), 4 C. P. D. 134 ; 27 "W. R. 682. 
 
 The Hnmben(l88a), ubi sup. 
 
 (h) The Forest Queen (1870), 40 L. J. Adm. 17; L. R. 3 Adm. 299; 23 
 L. T. 544 ; 19 W. R. 167. 
 
 (t) 31 & 32 Viet. c. 71, s. 27. 
 
 (k) The Dowse (1870), L. R. 3 Adm. 135; 39 L. J. Adm. 46 ; 22 L. T. 
 627 ; 18 W. R. 1008.
 
 Appeals in Admiralty. 71 
 
 If the judgment appealed against ordered the vessel to be New war- 
 discharged, the appellant may, after entering his appeal, rant f 
 ohtain a new warrant of arrest from the Admiralty Division after dia- 
 of the High Court (/). charge. 
 
 Where an Admiralty action has heen heard in a County Assessors. 
 Court, with the assistance of nautical assessors, elder brethren 
 of the Trinity House will be summoned to assist on the 
 hearing of an appeal by the High Court 
 
 (1) If either party require it ; 
 
 (2) And the High Court is of opinion that the assistance 
 
 of the elder brethren is necessary or desirable (;;?.). 
 
 This was never done until the passing of the County Courts 
 Act, 1875, which contained a similar provision (H). 
 
 Cases arising within the jurisdiction of the Cinque Ports (0) Transfer 
 may be transferred by the County Court, and appeals made 
 to the Court of Admiralty of the Cinque Ports in lieu of the 
 High Court, appeals in which cases should be lodged in the 
 registry of the Cinque Ports ; the same discretion being 
 vested in the judge, official, and commissary of the Cinque 
 Ports as is by the Act of 1868 vested in the judge of the 
 High Court (p). 
 
 On the hearing of an appeal in Admiralty, two counsel are Hearing, 
 heard on each side, and counsel for the appellant in reply. 
 
 The right of appeal from an order of a Divisional Court Appeals 
 varying the judgment of a County Court in an Admiralty from Di ' 
 cause was held, in the year 1888, to be governed by the courts. 
 County Courts Act, 1875, and an appeal might therefore be 
 brought, without leave, from such an order to the Court of 
 Appeal (q). 
 
 The same result was arrived at in the case of The Dart (r], 
 which was decided under the County Courts Acts of 1875 
 and 1888. 
 
 By sect. 10 of the County Courts Act, 1875, no leave was 
 necessary to appeal to Her Majesty in Council where the 
 High Court of Admiralty altered the judgment of the 
 County Court. By sect. 188 of the County Courts Act, 1888, 
 the whole of the County Courts Act, 1875, is repealed ; but, 
 by sect. 5, " this repeal shall not revive any enactment .... 
 not in force at the commencement of the Act." 
 
 (/) The Miriam (1874), 43 L. J. Adm. 35 ; 30 L. T. 537. 
 (m) County Courts Act, 1888, s. 125. 
 (n) See Williams & Bruce, 2nd ed., p. 528. 
 (o) As denned in 1 & 2 Geo. 4, c. 76, s. 18. 
 (p) 31 & 32 Viet, c. 71, s. 33. 
 
 (q) The Lijdia (1888), 14 P. D. 1 ; 58 L. J. P. 37 ; 39 L. T. 843 ; 37 W. R. 
 161. 
 
 ()) (1893) P. 33 ; 1 R. 572 : 62 L, J. P. 32 ; 69 L. T. 251 ; 41 W. R. 153.
 
 72 County Court Appeals. 
 
 So, where a Divisional Court sitting in Admiralty reversed 
 the judgment of a County Court, and refused leave to appeal, 
 it was held (Lord Esher, H.R., Lopes and Kay, L.JJ.) that 
 an appeal could be heard without leave, for so much of 
 sect. 45 of the Judicature Act, 1873, as was inconsistent 
 with sect. 10 of the County Courts Act, 1875, was impliedly 
 repealed by the latter Act, and therefore was " not in force " 
 at the time of the repeal of the County Courts Act, 1875, by 
 the County Courts Act, 1888 (s). 
 
 () The Dart, (1892) C. A., ub% sup.
 
 73 
 
 CHAPTER XY. 
 
 COSTS OF APPEALS. 
 
 THE rule has long been that, whilst it is entirely within the Success- 
 discretion of the Court to make such order as it deems proper, f^^Jf 
 the successful party will, as a rule, be entitled to have awarded 
 costs (a}. Willes, J., in the case first cited, delivered the con- costs, 
 sidered judgment of the Court, since it had previously been Cases con- 
 held otherwise where the appeal was on the ground of mis- 8ldered - 
 direction (1} . The cases reviewed in the judgment show 
 that the rule adopted by the Court was almost universally 
 followed (c) ; and if otherwise, indeed, the party's success 
 might be damnosa hcereditas (d}. In one case, in which it had 
 been held otherwise, there were special circumstances (e) . 
 
 The rule is the same in the Privy Council (/). 
 
 And so, in an older case (</), whilst the general rule was 
 recognised, it was held, where the judge refused to nonsuit, 
 but gave plaintiff leave to move to set the verdict aside and 
 have a nonsuit entered, but plaintiff did not move, but 
 appealed, that he was entitled to his costs of appeal. For a 
 plaintiff in the County Court has a right to be nonsuited 
 at any time before judgment or verdict. 
 
 To bring a case within the rule laid down in Schroder v. 
 
 (a) Schroder v. Ward (1863), 13 C. B. N. S. 410 ; 32 L. J. C. P. 150 ; ' 
 
 9 Jur. N. S. 1056 ; 7 L. T. 825 ; 11 W. R. 427. 
 Foster \. Smith (1856), 18 C. B. 156. 
 
 (5) Gee v. Lancashire and Yorkshire Railway (1861), 6 H. & K 211 ; 30 
 L. J. Ex. 11 ; 6 Jur. N. S. 1118 ; 3 L. T. 328 ; 9 W. R. 103. 
 
 (c) See Gibbon v. Gibbon (1853), 13 C. B. 205 ; 22 L. J. C. P. 135, n. ; 
 
 17 Jur. 416. 
 
 Liederman v. Schitltz (1853), 14 C. B. 38 ; 2 C. L. R. 87 ; 18 Jur. 
 
 44, n. 
 Foster v. Smith (1856), 18 C. B. 156. 
 
 (d) Robinson v. Lord Vernon (1859), 7 C. B. N. S. 231 ; 29 L. J. C. P. 
 
 135 ; 6 Jur. N. S. 610 ; 1 L. T. 67. 
 Weaver v. Joule (1857), 3 C. B. N. S. 309. 
 Gray v. Sompas (1862), 11 C. B. N. S. 520. 
 (e} L. $ N. W. Railway v. Grace (1857), 2 C. B. N. S. 555. 
 (/) Valentine v. Cleugh (1854), 8 Moore's P. C. Gas. 167. 
 (i) Outhwaite v. Hudson (1852), 7 Ex. 380 ; 21 L. J. Ex. 151 ; 16 Jur. 430.
 
 74 County Court Appeals. 
 
 W<trd(h), costs must be applied for at the time it is disposed 
 of, and not, for example, three days after (?'). 
 
 So, it is the substantial result that costs will follow, except 
 where otherwise provided by sect. 67 of the Judicature Act, 
 1873, or by Ord. LV., or by any such future provision (&). 
 And in Conybeare v. Farrics (/), the view was taken that costs 
 ought not to be refused merely on the ground that the appeal 
 has been rendered necessary by the misdirection of the 
 judge (w). 
 
 But other cases lay down that the Court ought to exercise 
 its full discretion (), the Court expressly holding, in Richard- 
 son v. North Eastern Rail tea y (0), that the rule laid down in 
 Schroder v. Ward (p) will not necessarily be followed, but the 
 Court will exercise its discretion. 
 
 So Garnctt v. Bradley (q) decided that the effect of Ord. LV., 
 which provides that costs shall be in the discretion of the 
 Court, together with sect. 33 of the Judicature Act, 1875, was 
 to repeal the 21 Jac. I. c. 116, s. 6, and 3 & 4 Viet. 
 c. 24, as inconsistent with the general discretion given by 
 the Order. 
 
 But where an Act is silent as to costs, the Court has an 
 inherent jurisdiction to order a person who wrongly puts it in 
 motion to pay the costs of his application (>). 
 
 General In equity, the rule is that the Court will not give costs of 
 
 rule in an appeal to a successful appellant except under special 
 
 circumstances, since the Court should not make the party 
 
 who was unsuccessful below pay for the mistake of the 
 
 judge (s). 
 
 (K) (1863), 32 L. J. C. P. 150; 13 C. B. N. S. 410; 9 Jur. N. S. 1056; 
 7L. T. 825; 11 W. R. 427. 
 
 () Taylor v. G. N. Railway (1866), L. R. 1 C. P. 430 ; 35 L. J. 210 ; 12 
 Jur. N. S. 372. 
 
 (k) Parsons v. Tinting (1877), 2 C. P. D. 119 ; 35 L. T. 851 ; 46 L. J. 
 
 C. P. 230 ; 25 W. R. 255. See also 
 
 Garnettv. Xradley (1878), 3 App. Cas. 914; 48 L. J. Ex. 186; 39 
 
 L. T. 261 ; 26 W. R. 698. 
 
 (1) (1869), L. R. 5 Ex. 16 ; 39 L. J. Ex. 26 ; 21 L. T. 497. 
 
 (m) Thus, again, not following Gee v. Lancashire $ Yorkshire Railway, 
 uli sup. 
 
 () Mountnoy v. Collier (1853), 17 Jur. 503 ; 1 E. & B. 100 ; 22 L. J. Q. B. 
 126, n. 
 
 (o) (1872), L. R. 7 C. P. 75 ; 41 L. J. C. P. 60 ; 26 L. T. 131 ; 20 "W. R. 
 461. 
 
 (p) (1863), 32 L. J. C. P. 150 ; 13 C. B. N. S. 410 ; 9 Jur. N. S. 1056 ; 
 7L. T. 825; 11 W. R. 4:2:. 
 
 (q) (1878), 3 App. Cas. 944 ; 48 L. J. Q. B. 186 ; 39 L. T. 261 ; 26 W. R. 
 698. 
 
 (r) Expartc Pnif/le (1889), 40 Ch. D. 288 ; 58 L. J. Ch. 815 ; GO L. T. 796. 
 
 (,) Denny v. Hancock (1870), L. R. 6 Ch. App. 138 ; 40 L. J. Ch. 193. 
 
 Fallows v. Blotter (1869), 20 L. T. 104, 613 ; 38 L. J. Ch. 609.
 
 Costs of Appeals. 75 
 
 But Malins,V.-0., while agreeing with that rule, as laid Notap- 
 down in Denny v. Hancock, was of opinion that the rule did Count 
 not apply to appeals from County Courts, in the proceedings 'Court 
 in which the subject-matter must necessarily be small, and it appeals, 
 would frequently amount to a denial of justice to a party 
 succeeding if he had to pay the costs of his appeal. It was 
 of the greatest importance that the party succeeding on the 
 appeal should be completely indemnified by getting his 
 costs (t). 
 
 Different opinions have been expressed respecting the Power of 
 power of the superior Courts over the costs in the Court ^^L or 
 below. On the one hand (), that the superior Court has over costs 
 power over them ; and on the other (x) , that it has not. in Courts 
 Willes, J. (Keating, Montague and Smith, JJ., concurring), below - 
 thought that, in cases of appeal at least, the costs of the 
 Court below must have been intended to be dealt with as 
 accessory to the judgment appealed from, and that on a 
 judgment being reversed, the order for payment of costs 
 should also fall (y) . But a Divisional Court refused to inter- 
 fere with the discretion of a County Court judge, vested in 
 him by the County Courts Act of 1867 (z), where he had 
 given leave to appeal subject to the payment of costs in any 
 event (a). 
 
 This practice of imposing costs in any event, when giving 
 a party leave to appeal, met with the disapproval of Kelly, 
 C.B., and Hawkins, J., in a later case (b). 
 
 In remitted and transferred actions, the scales of costs Remitted 
 apply respectively to such portions of the actions as took actions - 
 place in either Court (c), unless there has been some impro- 
 priety in commencing the suit in the High Court (d}. 
 
 (t) Ashly v. Sedgwick (1873), L. R. 15 Eq. 245 ; 42 L. J. Ch. 355 ; 28 L. T. 
 185; 21 W. R. 455. 
 
 () As in Whitehead v. Procter (1858), 3 H. & N. 532. 
 
 (x) As in Churchward v. Coleman (1866), L. R. 2 Q. B. 18 ; 36 L. J. Q. B. 
 
 (y) Gage v. Collins (1867), L. R. 2 C. P. 381 ; 36 L. J. C. P. 144 ; 15 W. R. 
 568. 
 
 (z) 30 & 31 Viet. c. 142, s. 13. 
 
 (a) Goodes v. Cluff (1884) , 13 Q. B. D. 694. 
 
 () Ashenden v. L. B. $ S. C. Railway (1880), 42 L. T. 586. 
 
 (c) See (e.g.) Moody v. Steward (1870), L. R. 6 Ex. 35 ; 40 L. J. Ex. 
 
 25 ; 23 L. T. 465 ; 19 W. R. 161. 
 
 WJieatcroft v. Foster (1858), E. B. & E. 737; 27 L. J. Q. B. 277; 
 
 4 Jur. N. S. 896. 
 
 (d) Carpmaelv. Car veil (1870), 18 W. R. 513. 
 
 Ward v. Wyld (1877), 5 Ch. D. 779 ; 25 W. R. 866 ; 37 L. T. 68. 
 Wilson v. Statham, (1891) 2 Q. B. 261 ; 60 L. J. Q. B. 725 ; 39 
 
 W. R. 686.
 
 76 County Court Appeals. 
 
 As to Security for the costs of an appeal may be directed 
 
 security. fo fa given (e), and is not now required as a matter of 
 course (/). 
 
 But an appeal does not operate as a stay of proceedings unless 
 it is so ordered by the Court below, or unless within ten days 
 after the decision a deposit is made, or security given to the 
 satisfaction of the inferior Court for a sum fixed by it not 
 exceeding the amount of the money or the value of the 
 property affected by the judgment, order or finding appealed 
 from (g). 
 
 The High Court is not prevented by the rule just cited 
 from ordering security to be given (h), and the application 
 should be made under C. 0. B. 255, which has already been 
 referred to. 
 
 The Divisional Court will not, however, as a rule, require 
 security for the costs of an appeal from a County Court where 
 leave to appeal has been unconditionally given by the judge 
 of the County Court (/). 
 
 And where an appellant has paid money into Court as 
 security for the costs of an appeal, and succeeds, the Court, in 
 addition to allowing him the costs of the appeal, will order 
 the money to be paid out to him (A-) . 
 
 And where an infant was appealing against a County 
 Court judgment through his next friend, who was insolvent, 
 the Court ordered the latter to give security for costs, having 
 power to do so by Ord. LIX. r. 17, which applies Ord. LYIII. 
 r. 15, to County Court appeals (/). 
 
 It was held, under the old Act, that security for costs 
 should be given within the time limited, and will not be 
 accepted after its expiration (;). But an appeal was heard 
 where the delay was not caused by the appellant (). 
 
 The reviewal of taxation of costs is in the discretion of the 
 judge, and his refusal to review was held not to be a " refus- 
 ing to do an act relating to the duties of his office " within 
 
 (e) R. S. C., Ord. LVIII. r. 15. 
 
 (/) Wilson v. Smith (1876), 2 Ch. D. 67 ; 45 L. J. Ch. 292 ; 34 L. T. 471 ; 
 24 W. R. 421. 
 
 (g) R. S. C., Ord. LIX. r. 14. 
 
 (h) Shaw v. Girvin (1886), unreported: cited in Short & Mellor's " Crown 
 Office Practice," p. 493. 
 
 (i) Per Cave and Smith, JJ., Ex parte Apothecaries' Society (1890), 38 
 W. R. 478. 
 
 (k) Kelly v. Webster (1852), 16 Jur. 838. 
 
 (/) Swain v. Follotcs (1887), 18 Q. B. D. 585 ; 56 L. J. Q. B. 310 ; 56 L. T. 
 335; 35 W. R. 408. 
 
 (M) Bknkairne v. Statter (1874), 31 L. T. 413. 
 
 (n) Waterton v. Baker (1868), L. R. 3 Q. B. 173 ; 17 L. T. 494.
 
 Costs of Appeals. 77 
 
 the meaning of 19 & 20 Viet. c. 108, s. 43 (o). But an 
 appeal was heard, in an administration suit under the County 
 Courts Equitable Jurisdiction Act (/>), from the order of a 
 County Court judge as to payment of costs, and his decision 
 reversed (<?). 
 
 (o) Clifton v. Farley (1862), 31 L. J. Ex. 170 ; 7 H. & N. 783 ; 10 W. R. 
 358. 
 
 (p) 28 & 29 Viet. c. 99. 
 
 (q) Cooper v. Bmbridge (1867), 16 L. T. 5.
 
 78 
 
 County Court Appeals. 
 
 CHAPTER XVI. 
 
 MANDAMUS. 
 
 1. The 
 preroga- 
 tive writ. 
 
 Descrip- 
 tion of 
 writ. 
 
 Origin. 
 
 The 
 modern 
 writ. 
 
 High pre- 
 rogative 
 writ. 
 
 T^HE writ of mandamus is in form a command issuing in 
 the name of the Sovereign from the Sovereign's Court, and 
 directed to any officer, person, artificial person, or corporation 
 or inferior Court, within the Sovereign's dominions, requiring 
 performance of some act or duty therein specified, the exe- 
 cution of which such Court has previously determined to be 
 consonant to right and justice (a). It was in its origin a 
 mere missive from the Sovereign commanding performance 
 of a particular act or duty. Then it came to be used princi- 
 pally to enforce restitution to public offices (b) ; and at length, 
 owing to the extent to which it was employed, and to its highly 
 remedial nature, it obtained the sanction of an original writ, 
 being issued in all cases where there was a legal right to 
 justice for which the law had not provided any specific legal 
 remedy (c), or where there was oppression of the subject or 
 other misgovernance (d). 
 
 The modern writ of mandamus is a high prerogative writ 
 of a most extensively remedial nature (c), and not a writ of 
 
 (a) 8 Bl. Com. (21st ed.) 109: Tapping on Mandamus, p. 5. " It is a 
 prerogative writ, and it shall be granted to ampliate justice, and to preserve a 
 ri<rht where there is no specific remedy, where no assize will He." Per 
 Wilmot, J. (1762), R. v. Barker, 3 Burr. 1265; 1 W. Bl. 351. It has 
 always been a remedial and beneficial writ to those who have been oppressed, 
 especially where the party aggrieved could not maintain an assize. Such 
 writs were called by Coke brevia mandatoria et remedialia. (Calvin's Case 
 (1608), 7 Co. 20; Vaugh. 401.) 
 
 (b) Ray. 431 ; Com. Dig. Man. (A). 
 
 (c) It. v. Dublin (Dean of) (8 Geo. 1), 8 Mod. 29. That its origin is most 
 ancient is shown by the fact that its use can be traced back with certainty to 
 the time of Edward III. (Asketc't Case (1768), 4 Burr. 2186.) And it was 
 possibly used before the time of Edward I. (Reg. v. Cambridge (10 Geo. 1), 
 Fort. 202.) 
 
 (d) Bagfs Case (13 Jac. 1), 6 Co. 182. 
 
 (e) Reg. v. Botworth (12 Geo. 2), Stra. 1112.
 
 Mandamus. 79 
 
 right (/), or, perhaps, as Martin, B., chose to put it, it is a 
 
 writ of right, but not of course (#), it being supposed to issue 
 
 from a Court in which the Sovereign is in theory personally 
 
 present, and issuable as a grace and favour granted according 
 
 to discretion upon probable cause shown. It can be granted 
 
 only by the Queen's Bench Division (A), and the applicant f^QB D 
 
 for it should not be in fault ('). 
 
 The Court may refuse to grant the writ, not only upon the 
 merits, but upon some delay or other matter personal to the 
 party applying for it ; in this the Court exercises a discretion 
 which cannot be questioned. So, in cases where the right in 
 respect of which a rule for a mandamus has been granted 
 upon showing cause appears to be doubtful, the Court fre- 
 quently grants a mandamus in order that the right may be 
 tried upon the return ; this is also a matter of discretion. 
 
 But where the judges grant a peremptory mandamus, 
 which is a determination of a right, and not a mere dealing 
 with the writ, they decide according to the merits of the case, 
 and not upon their own discretion, and their judgment must 
 be subject to review, as in every other decision in actions 
 before them (/). Circum- 
 
 For the Court to interpose by granting this writ stances in 
 
 (1) The applicant must have a specific legal right, the ful- g ra nted. 
 
 filment of which is demandable from the person to j i, e o-ai 
 whom the writ is to be directed (/). right. 
 
 (2) There should, ordinarily, be no specific legal remedy 2. No 
 
 whereby the fulfilment of the specific right may be other 
 compelled(0. remedy ' 
 
 (/) E. v. G. W. Railway (1893), 62 L. J. Q. B. 672; 9 R. 127; 69 L. T. 
 572. 
 
 (g) Jackson v. Beaumont (1855), 11 Ex. 300 ; 24 L. J. 301. 
 (/*) Glosiop v. Hcston, $c. Board (1879), 12 Ch. D. 102 ; 47 L. J. Ch. 536 ; 
 26 W. R. 433. 
 
 (t) JR. v. G. Jr. Railway (1893), 62 L. J. Q. B. 572, at p. 583. 
 (j) Per Lord Chelmsford, in JR. v. Churchwardens of All Saints, Wigan 
 (1876), 1 App. Cas. 611 ; 35 L. T. 381 ; 25 W. R. 128. 
 
 (k) R. v. Archbishop of Canterbury (1807), 8 East, 213. 
 
 R. v. Company of Surgeons (1759), 2 Burr. 892, 
 where a mandamus was applied for to enforce a custom. 
 
 R. v. Bishop of London (1786), 1 T. R. 331, 
 where immemorial custom was held to be so enforceable. 
 
 Simpson v. Scottish Insurance Co. (1863), 1 H. & M. 618, 
 
 where Page- Wood, V. -C., said it was settled that where an entirely new right 
 is given by statute the remedy is by mandamus. 
 Peat's Case (3 Anne), 6 Mod. 228. 
 
 (?) Reg. v. Lambotirn Valley Rail. Co. (1889), 22 Q. B. D.463; 58 L. J. 
 
 Q. B. 136 ; 60 L. T. 54 ; 53 J. P. 248. 
 R. v. Incorporated law Society (1895), 11 T. L. R,. 557. 
 R. v. Barker (1762), 3 Burr. 1265 ; 1 "W. Bl. 351. 
 7;. T. Bank of England (1780), 2 Doug. 524. 
 R. v. Archbishop of Canterbury (1807), 8 East, 213. 
 R. v. Commissioners of Inland Revenue (1884), 12 Q. B. D. 464,
 
 80 County Court Appeals. 
 
 3. To (3) Its issue must be required to prevent a failure of jus- 
 justice tice, and upon the assumption that that which ought 
 
 to have been done has not been done (//?) ; thus 
 giving effect to, if not actually springing from, the 
 clause in Magna Charta which undertakes " nulli 
 negabimtu nut diffcremw jtuiitiam eel reef nut " (}. 
 
 4. Court (4) The jurisdiction of the Court to command the execu- 
 the power. tion of the particular act or duty demanded must 
 
 be clear, as well as its power to enforce it (o). 
 
 5. Duty (5) The act or duty required to be performed must be a 
 most be a public one, and not a mere private duty between 
 
 publicone. *j M i ^.r J-L 
 
 individuals as the payment of money secured by 
 bond, &c. the enforcement of which may be effected 
 by other legal means (<?). 
 
 E. v. Registrar of Joint Stock Companies (1888), 21 Q. B. D. 131. 
 In re Barlow (1861), 30 L. J. Q. B. 271. 
 And see R. v. L. $ N. W. Railway, (1894) 2 Q. B. 513, 
 
 where Wright, J., explaining R. v. Lambourn Valley Rail. Co. (supra), 
 thought it would be unduly narrowing the powers of the Court to hold that 
 the prerogative writ will not be granted in any case if it be shown that a 
 mandamus could have been granted for the same purpose in an action. 
 
 Ex parte Robins (1839), 7 Dowl. 566, 
 
 where the Court refused a mandamus to a company on breach of contract 
 to carry applicant's goods. 
 
 Mandamus will not be granted where there is a remedy by way of appeal. 
 
 R. v. WeoUy (19 Geo. 2), 2 Str. 1259. 
 
 Whether there may be some cases in which mandamus may issue when 
 another, though more tedious, mode of redress exists, qtuere. (See 3 Bl. Com., 
 21st ed. 109.) It was recently held in the affirmative : 
 
 R. v. Justices of Bradford (1896), L. T. April llth, p. 560. 
 But Lord Mansfield always refused it when there was another remedy. 
 
 R. v. Bishop of Chester (1786), 1 T. R. 396. 
 And it will be refused if clearly unnecessary. 
 R. v. Pitt (1839), 10 A. & E. 272. 
 R. v. Bishop of Chester (1786), 1 T. R. 396. 
 R. v. Fowey (1824), 2 B. & C. 584. 
 
 (m) R. v. Gloucester (1857), 7 El. & Bl. 805; 27 L. J. M. C. 15 ; 3 Jur. 
 N. S. 980. 
 
 (ri) Reg. v. Heathcote (10 Anne), 10 Mod. 53. 
 
 ( ) B. v. Bishop of London (1786), 1 T. R. 331. 
 
 And it will not be granted if, when granted, it can only be nugatory. 
 Jurisdiction cannot be given by consent. 
 
 R. v. Treasury (1851), 16 Q. B. 357. 
 
 The writ cannot be directed against the Crown, or against persons acting 
 as servants of the Crown, and who are consequently not amenable to the 
 Court of Queen's Bench in the exercise of its prerogative jurisdiction. 
 
 R. v. Lords Commissioners of the Treasury (1872), L. R. 7 Q. B. 387. 
 Per Cockburn, C. J., who considered that the previous case of R. v. Lords 
 of the Treasury (1835), 4 A. & E. 286, as of very doubtful authority. 
 
 (q) R. v. Bank of England (1819), 2 B. & A. (3.2:2, 
 
 where Bayley, J., refused the writ to compel the corporation to produce its 
 books of account to enable its position to be considered with a view to a 
 dividend. 
 
 R. v. Clear (1825), 4 B. & C. 899. 
 
 R. v. Bishop of Chester (1786), 1 T. R. 396. 
 
 R. v. Payn (1837), 1 N. & P. 527.
 
 Mandamus. 81 
 
 (6) There must have been a refusal to perform the 6. Prior 
 
 duty (r) ; and it is not enough that such refusal should refusal - 
 be feared, for the writ will not be granted in anti- 
 cipation (s). 
 
 (7) The duty required must be a positive one to do some 7. Positive 
 
 act in execution of law (f) . duty. 
 
 (8) If for the exercise of judicial functions, there must have 8. Judicial 
 
 been a refusal to exercise such functions : not functioils > 
 , i .., , refusal to 
 
 merely an exercise in such a manner, or with such exercise. 
 
 results, as, in the opinion of the superior Court, are 
 mistaken or erroneous (M). 
 
 (r) Glossop v. Heston, $c. Board (1879), 12 Ch. D. 102, at p. 115. 
 
 (*) Blackborongh v. Davis (1701), 1 P. Wms. 41. 
 
 (t) Not merely to refrain from acting, as, for example, to refrain from 
 preventing a dissenting preacher from preaching, which would rather be the 
 subject of a writ de no>i molestando. 
 
 Peat's Case (3 Queen Anne), 6 Mod. 228. 
 
 Mandamus was granted to the clerk of the peace of a borough to permit 
 ratepayers to inspect the rate -books. 
 
 R. \. Leicester, $c. (1826), 7 Dow. & Ry. 708. 
 
 By the Summary Jurisdiction Act, 1879, s. 33, any person aggrieved who 
 desires to question a conviction, &c. of a court of summary jurisdiction may 
 apply to it to state a case, and on refusal to the High Court for an order 
 requiring it to state one. 
 
 And under the old procedure it was held that a County Court judge was 
 bound to affix his signature to a special case prepared by the parties for 
 appeal. 
 
 Furber v. Sturmy (1858), 4 Jur. 956; 3 H. &N. 521 ; 27 L. J. Ex. 453. 
 Irving v. Askew (1870), L. R. 5 Q. B. 209 ; 39 L. J. Q. B. 118 ; 18 
 
 W. R. 467. 
 
 Mandamus is the proper remedy for enforcing the taking up of an award 
 under the Lands Clauses Act. 
 
 Jt. v. L. $ N. W. Railway, (1894) 2 Q. B. 512. 
 
 (M) R. v. Dep. of Leicester (1826), 7 Dow. & Ry. 708. 
 
 " The Court will by mandamus make an inferior Court exercise its juris- 
 diction when it has refused to do so on a mistaken view of the law ; but will 
 not make it review its decision on facts when it has heard and decided." Per 
 Lord Campbell, C. J. 
 
 So again, per Lord Hardwicke, C. J. : " If the (inferior tribunal) acts 
 judicially a mandamus lies, not to compel it (e.g] to grant a licence, but only 
 to determine the one way or the other. If, however, the (inferior Court) acts 
 ministerially, and it appears that the person applying for the mandamus is 
 (e.g.] qualified for the office he prays to be admitted to, then a mandamus 
 goes requiring his admission." 
 
 R. v. Bishop of Lichfield (7 Geo. 2), 7 Mod. 217. 
 
 And per Lord Ellenborough, C. J. : " The superior Court can only compel 
 the inferior Court (when acting judicially) to inquire ; and cannot divest it 
 of that function which the legislature has for wise purposes vested in it. ... 
 All that the Court can do is to see that that function is well exercised by (the 
 inferior Court) in which it was so vested. But it must duly and impartially 
 and effectually inquire, examine and decide, otherwise the Court will 
 interpose its authoritative administration. In short, while the superior 
 Court will not divest the inferior Court of its responsibility to perform its 
 jurisdiction, it will call upon it to act and undertake that duty, where it 
 appears that it has refused it. But where the inferior Court has considered 
 C. G
 
 82 
 
 County Court Appeals. 
 
 9. Not to 
 undo 
 some- 
 thing. 
 
 How 
 obtained. 
 
 (9) The act required must be not merely one that will 
 
 undo an act that has already been done, but 
 
 one that ought to be done and has not been 
 done (m}. 
 
 The writ of mandamus has ordinarily been obtained on 
 
 the matter before it, and informed its conscience thereon, and decided the 
 matter, the superior Court will not interfere." 
 
 R. v. Archbishop of Canterbury (1812), 15 East, 117. 
 Ex parte Becke (1832), 3 B. & Ad. 704. 
 
 And per Littledale, J. : "The Court cannot dictate by mandamus the 
 judgment which another Court shall give, such as the quashing a rate, which 
 is a judicial act though it can refer it to them to consider what judgment 
 they should pronounce." 
 
 R. v. Middlesex Justices (1839), 9 A. & E. 540. 
 
 And per Abbott, C. J. : " We ought to see clearly that the magistrates 
 have neglected some duty imposed upon them by law before we compel them 
 to act in a particular mode." 
 
 R. v. N. Riding of Yorkshire (1823), 2 B. & C. 286. 
 
 And per Best, J. : "If the law requires a certain thing to be done, we 
 may order it to be done by the party upon whom the obligation of doing it 
 is imposed. If he is to act according to his discretion, and will not act or 
 even consider the matter, we may compel him to put himself in motion to do 
 the thing, but we cannot control his discretion." 
 
 R. v. JV. Riding of Yorkshire, ubi sup. 
 
 And per Coleridge, J. : " There is a well-known distinction with respect 
 to the cases in which this Court will interfere with the decisions of an inferior 
 Court. If the inferior Court abstains from entering- upon the merits in con- 
 sequence of their arriving at a wrong decision upon a preliminary point, this 
 Court will set them right." 
 
 Reg. v. Richards (1851), 20 L. J. Q. B. 351. 
 
 It is the peculiar business of the superior Courts of the Queen's Bench 
 to superintend all inferior tribunals, and therein to enforce the due exercise 
 of those judicial or ministerial powers with which the Crown or legislature 
 have invested them ; and this not only by restraining their excesses, but also 
 by quickening their negligence and obviating their denial of justice. 
 
 3 Bl. Com., 21st ed., p. 109. See also Glossop v. Heston, c. Hoard 
 
 (1879), 12 Ch. D. 102. 
 
 So, the Court will grant a mandamus to a clergyman who absolutely re- 
 fuses to bury a body brought to him for interment in the usual way (R. v. 
 Coleridge (1819), 2 B. & A806) ; but it will not grant a mandamus to compel 
 him to bury it in a particular portion of the churchyard, as he has a right of 
 discretion in that respect. 
 
 Ex parte Blackmore (1830), 1 B. & A. 122. 
 
 And where a County Court judge has heard and considered a matter, and 
 decided that he has no jurisdiction, a mandamus will not lie even though his 
 decision may be wrong in law ; for it is a decision on the evidence which the 
 superior Court will not review. 
 
 Ex parte Milner v. Rhoden (1851), 15 Jur. 1037. 
 
 But if in a case in which he has jurisdiction he refuses to hear it upon the 
 mistaken belief that he has no jurisdiction to do so in respect of some pre- 
 liminary matter, a mandamus will issue, Erie, J., distinguishing the some- 
 what similar case of R. v. Richards (1851), 20 L. J. Q. B. 351, where the 
 refusal of the inferior Court to adjudicate was in respect of a preliminary 
 matter, the High Court being of opinion that the judge was wrong in his 
 decision as to the preliminary matter, and considering that the case fell 
 within the general principle, that where an inferior tribunal improperly 
 refuses to enter upon a complaint, a mandamus will issue. 
 (in) Ex parte Nash (1850), 15 Q. B. 92.
 
 Mandamus. 83 
 
 motion of counsel (n), supported by a suggestion on oath or 1- 
 affidavit of the party injured of his right, and of denial of 
 justice by the defendant, whereupon, in order more fully to 
 satisfy the Court that there is a probable ground for its 
 interposition, a rule nisi is made (except in some general 
 cases where such ground is manifest) (o), requiring the 
 defendant to show cause why a writ of mandamus should 
 not issue. 
 
 It was, however, provided by statute (/>), that officers and Officials 
 other persons obliged to perform matters in which they had need nofc 
 no interest should be relieved of the duty of appearing, the &] 
 Court being empowered to call upon any other person having 
 or claiming any interest in the matter to appear and show 
 cause against the issue of the writ. 
 
 On sufficient cause being shown, the w r rit is made absolute 
 and issued, commanding the defendant by return day either 
 to execute the command, or to signify to the Court some 
 reason for not doing so ; failure to do so, subjecting him 
 to attachment for his contempt. Or, the Court or a judge may 
 now, by Ord. XLII. r. 30, in the case of a mandamus granted 
 in an action or otherwise, besides or instead of proceedings 
 for contempt, direct that the act required to be done may be 
 done so far as practicable by the party by whom the judg- 
 ment or order has been obtained, or some other person 
 appointed by the Court or judge, at the cost of the dis- 
 obedient party. 
 
 By the Crown Office Eules of 1886 (q), applications for Procedure 
 the prerogative writ of mandamus are to be made during the 
 sittings to Divisional Courts of the Queen's Bench Division 
 by motion for an order nisi ; and, in the Yacation, to a judge 
 in chambers for a summons to show cause, upon its being 
 shown to such judge that the matter is urgent. The rule, 
 however, does not apply to applications under the Municipal 
 Corporations Act, 1882, s. 225 (r), by which a mandamus 
 may be obtained to proceed to an election of a corporate 
 officer, the procedure relating to which is laid down in that 
 enactment. 
 
 (w) Counsel must be instructed on applications for a mandamus, though, 
 possibly, not for a rule nisi. S. v. Liverpool (Mayor of) (1891), 7 T. L. R. 
 592 ; 55 J. P. 823. 
 
 (o) But where it appears that there is a question of consequence to be 
 determined, the Court will not decide it on the motion, but will direct the 
 writ to issue, that the question may be decided on the return. Bex v. 
 *Everet (1736), cas. temp. Hardwicke, 261. 
 
 (p) 1 Will. 4, c. 21, s. 4. 
 
 ( q) Rr. 60 et seq. 
 
 (r) 4.5 & 46 Viet. c. 50, s. 225.
 
 County Court Appeals. 
 
 1. Pre- 
 rogative 
 writ 
 contd. 
 
 Orders 
 applied 
 to man- 
 damus. 
 
 2. The 
 
 statutable 
 
 writ. 
 
 The order nisi must give notice to, and be served upon, 
 every person likely to be interested, or who, in the opinion of 
 the Court, should be served, as well as the party required to 
 show cause ; but any person, whether he has had notice or 
 not, may show cause if he can satisfy the Court or judge that 
 he is affected by the proceeding, and may be made liable for 
 costs. 
 
 The Court or a judge may order that any writ of mandamus 
 may be peremptory in the first instance. 
 
 No order for the issuing of any writ of mandamus is to be 
 granted unless, at the time of moving, an affidavit be pro- 
 duced by which some person deposes upon oath that the 
 motion is made at his instance as prosecutor ; and his name 
 will be so indorsed on the writ if granted. 
 
 Ord. LYIII. of the Rules of the Supreme Court is to apply 
 to all civil proceedings on the Crown side, including man- 
 damus (r). 
 
 The following orders also are, by Ord. LXVIII. r. 2, so 
 far as they are applicable, to apply to proceedings in man- 
 damus : Those relating to Amendment (s) ; Special Case (t) ; 
 Affidavits (11} ; Motions (f) ; Appeals (y] ; Time (s) ; Costs (a) ; 
 Notices (b) ; Non-compliance (c) . 
 
 Different to the prerogative writ is the mandamus spoken 
 of in the Judicature Act, 1873 (d), which is only a mandamus 
 which may be granted to direct the performance of some act 
 of something to be done which is the result of an action 
 where an action will lie (c). The section of the Judicature 
 Act referred to provides that a mandamus may be granted 
 by an interlocutory order of the Court in all cases in which 
 it shall appear to the Court to be just or convenient that such 
 order should be made, either unconditionally or upon terms ; 
 the words " interlocutory order " meaning any order other 
 than a final judgment, and whether made before or after 
 
 M C. O. R 1886, r. 216. 
 
 () Ord. XXVIII. 
 
 (0 Ord. XXXIV. 
 
 () Ord. XXXVIII. 
 
 (x) Ord. LII. 
 
 (y) Ord. LVIII. 
 
 (z) Ord. LXIV. 
 
 (a) Ord. LXV. 
 
 (4) Ord. LXVI. 
 
 (c) Ord. LXX. 
 
 (d) Sect. 25 (8). 
 
 (e) Per Brett, L. J., in Glvssop v. ITeston, $c. Hoard (1879), 12 Ch. D. 102, 
 at p. 122. 
 
 (/) Eastonv. Far Valley fommiisionern (1832), 8 T. L. R 649.
 
 Mandamus . 85 
 
 Applications for orders directing the issue of writs of 2 - The 
 mandamus under the Judicature Act are directed to be 5jj?^ 
 made to the Court or a judge (g), either ex parte or with contd. 
 notice ; and judges of the Chancery Division have jurisdic- HOW 
 tion to direct the issue of writs of mandamus under that Act obtained. 
 in every cause or matter pending hefore them (Ji). 
 
 By the County Courts Act, 1888 (/), an order or summons Order 
 is substituted for the writ of mandamus to a judge or an substi- 
 officer of a County Court, for refusing to do any act relating ^ d for 
 to the duties of his office (k), and the party requiring such against 
 
 act to be done may apply to the High Court, upon an affi- 
 davit of the facts, for an order or summons calling upon such Courto - 
 officer of the Court, and also the party affected by the act, to 
 show cause why it should not be done (/). If after service 
 of such order or summons good cause is not shown, the High 
 Court may, by order, direct the act to be done, and the judge 
 or officer of the County Court, upon being served with it, 
 must obey it on pain of attachment. And the High Court 
 can in any event make such order as to costs as it thinks 
 fit (w)- 
 
 When an application for such a writ or order has been May 
 
 once refused by the High Court or a judge thereof, no other appeal on 
 
 refusal. 
 
 (ff) Ord. L. r. 6. The jurisdiction may be exercised by a judge sitting at 
 chambers: 92 L. T. Jo., p. 40 (1891). 
 
 (A) - In re Paris Skating Sink Co. (1877), 6 Ch. D. 731. 
 But applications for the prerogative writ must still be made to the Queen's 
 Bench Division. 
 
 Glossop v. Htston, $c. Board (1879), 12 Ch. D. 102. 
 R. v. Lambourn, . Co. (1888), 22 Q. B. D. 463, at p. 469. 
 (i) 51 & 52 Viet. c. 43, s. 131. 
 
 (k) This is, in substance, a re-enactment of sect. 43 of 19 & 20 Viet. c. 108 
 (County Courts Act, 1856), which first substituted a rule or order for a man- 
 damus to a judge or officer of a County Court. See also 
 
 Blades v. Lawrence (1874), L. R. 9 Q. B. 374 ; 43 L. J. Q. B. 133 ; 
 
 30 L. T. 378 ; 22 TV. R. 643, 
 
 which decides that the substituted rule or order applies to the City of London 
 Court. 
 
 But where a matter is not within the ordinary jurisdiction of a County 
 Court judge, but his jurisdiction to hear it is imposed upon him by statute, 
 he is bound to hear and determine it, and a mandamus is the proper course to 
 compel him to do so, and not a rule under the County Courts Act. 
 
 In re Brighton Sewers Board (1882), 9 Q. B.*D. 723. 
 
 Such a rule will be granted calling on a County Court judge to show cause 
 why the verdict of a jury should not be received and entered, and judgment 
 given accordingly, when he has refused to receive and enter, and give judg- 
 ment according to such verdict. 
 
 Jardine v. Smith (1860), 8 TV. R. 464. 
 
 (1) As in the case of an application for the prerogative writ. C. O. R. 
 1886, rr. 60 et seq., vide supra, p. 82. 
 
 (m) County Courts Act, 1888, s. 131. A similar discretion exists in appli- 
 cations for the prerogative writ. . v. Harding (1890), 6 T. L. R. 175.
 
 86 
 
 Ord. LIII 
 
 Action of 
 manda- 
 mus. 
 
 Statut- 
 able and 
 preroga- 
 tive writs 
 of man- 
 damus 
 compared. 
 
 Court or judge is to grant it (o), though the applicant is not 
 prevented from appealing or from applying again on different 
 grounds (p). 
 
 Ord. LIII. of the Rules of the Supreme Court provides 
 that the plaintiff, in any action in which he shall claim a 
 mandamus to command the defendant to fulfil any duty in 
 the fulfilment of which the plaintiff is personally interested, 
 shall indorse such claim upon the writ of summons. 
 
 The mandamus given by this action (which is not the 
 prerogative writ) corresponds with that which was provided 
 by the Common Law Procedure Act, 1854 (/?), which latter 
 provision the Judicature Act, 1873, and Ord. LIII. together, 
 in substance re-enact (r). The Act of 1854 also expressly 
 reserved to the separate jurisdiction of the Queen's Bench 
 Division the power to grant prerogative writs of mandamus, 
 which jurisdiction that Division accordingly continued to 
 exercise (s) . 
 
 This action for a mandamus, based upon the Common Law 
 Procedure Act, is simply an attempt to engraft upon the 
 old common law remedy a right in the nature of specific per- 
 formance (t). When private persons had rights against one 
 another, the Court had power to grant a mandamus, or direct 
 specific performance, or something in the nature of an in- 
 junction, to command that the right claimed by the one 
 party should be acceded to by the other. But it was never 
 contemplated that the action for a mandamus was to super- 
 sede the prerogative writ of mandamus (u). 
 
 The term statutable mandamus, used by Mr. Justice Day 
 in the case last cited, is a convenient one for the purpose of 
 distinguishing the statutory process from the prerogative writ 
 issuable alone from the Queen's Bench Division. 
 
 The statutable mandamus is only granted as auxiliary to 
 an action, and for the purpose of enforcing the private right 
 
 (o) . v. Bodmin (Mayor of), (1892) 2 Q. B. 21 ; 66 L. T. 562 ; 61 L. J. 
 
 M. C. 151 ; 40 W. R. 606 ; 56 J. P. 504. 
 Exparte Thompson (1845), 6 Q. B. 721. 
 
 (p) County Courts Act, 1888, s. 131. 
 
 Beg. v. Bishop of London (1889), 24 Q. B. D. 213. 
 Reg. v. Holl (1881), 7 Q. B. D. 575. 
 Julius v. Bishop of Oxford (1880), 5 App. Cas. 214. 
 (q) 17 & 18 Viet. c. 125, s. 68. 
 
 (r) Per Pollock, B., in It. v. Lambourn, $c. Co. (1888), 22 Q. B. D. 463, at 
 p. 467. 
 
 (*) 17 & 18 Viet. c. 12.), s. 75 ; and R. v. Lambourn, $c. Co., ubi sup. 
 (t) See the judgment of Mr. Justice Day in Baxter v. London C. C. (1891), 
 63 L. T. 767; 55 J. P. 391. 
 
 (u) Per Day, J., in Baxter v. London C. C., ubi sup.
 
 Mandamus. 87 
 
 in respect of which the private litigation arose (v) . Hence it 
 follows that the statutable mandamus will not issue where no 
 action will lie (#). 
 
 M Per Day, J., in Baxter v. London C. G., uli sup, 
 
 (x) Quite otherwise Is the case of the prerogative writ, one of the essential 
 conditions for the grant of which is, as has been seen, that the applicant 
 shall have no specific legal remedy whereby fulfilment of his right may be 
 compelled. Tide supra, p. 79, and the cases there cited.
 
 88 
 
 County Court Appeals. 
 
 CHAPTER XVII. 
 
 Object of 
 prohibi- 
 
 tion. 
 
 Coke on 
 prohibi- 
 tion. 
 
 PROHIBITION. 
 
 As all external jurisdiction is derived from the Crown, and 
 the administration of justice is committed to a great variety 
 of Courts, it has been the care of the Crown that these Courts 
 keep within the limits and bounds of the several jurisdictions 
 prescribed them by the laws and statutes of the realm. 
 
 For this purpose the writ of prohibition was framed, which 
 issues out of the superior Courts of common law to restrain 
 inferior Courts, no matter what their nature, where it is 
 shown that the cognizance of the matter does not belong to 
 such Courts. 
 
 The object of prohibitions in general is the preservation of 
 the right of the king's Crown and Courts, and the ease and 
 quiet of the subject. For it is the wisdom and policy of the 
 law to suppose both best preserved when everything runs in 
 its right channel according to the original jurisdiction of 
 every Court. For by the same reason that one Court might be 
 allowed to encroach, another might ; which could produce 
 nothing but confusion and disorder in the administration of 
 justice (a). 
 
 It is laid down by Coke, in his Institutes (b), that : 
 " Prohibitions by law are to be granted at any time to 
 restrain a Court to intermeddle with, or execute anything, 
 which by law they ought not to hold plea of. ... And the 
 King's Courts that may award prohibitions, being informed 
 either by the parties themselves or by any stranger, that any 
 Court temporall or ecclesiasticall doth hold plea of that 
 .whereof they have not jurisdiction, may lawfully prohibit the 
 same as well after judgement and execution as before " (c). 
 
 (a) 
 
 Bac. Abr. tit. Proh., and cases and authorities there cited. 
 3 Jac. 1, Pt. 2, p. 602, Articuli Cleri. 
 - See also Kimpton \. JTitky (1850), 9 C. B. 719 ; 19 L. J. 269 ; and 
 
 the old case of 
 
 TEall v. Xorwood (temp. 15 Car. 2), 1 Sid. 165, in which it is said 
 
 that " Prohibition tie s(rra apres le en '<." Also 
 
 Denlon v. Marshall (1863), 32 L. J. Ex. 89 ; 1 H. & C. 65 i ; 9 Jur. 
 
 N. S. 337 ; 11 W. R. 268 ; citing Com. Dig. Proh., and 
 
 Roberts v. Uumby (1837), 3 M. & W. 120; M. & H. 331 ; 6 D. P. 
 
 C. 82.
 
 Prohibition. 89 
 
 The opinion obtained that the awarding of a prohibition Whether 
 might be discretionary (<7), none being entitled to it, however, d .iscre- 
 
 i j. j i. j i_ 11 tionary or 
 
 who was not in danger or being inj ured by some suit actually as of 
 impending (e). right. 
 
 The subject was fully considered by the Court of Appeal Farqu- 
 in the recent case of Fa rq it //arson v. Morgan (/), in which it harsonv. 
 was laid down that when a total absence of jurisdiction or 9 an - 
 appears on the face of the proceedings in an inferior Court, 
 the Court is bound to issue a prohibition, though the appli- 
 cant for the writ has consented to, or acquiesced in, the 
 exercise of jurisdiction by the inferior Court. 
 
 Lord Justice Lopes said there had always been recognized Depends 
 a distinction between what he called a latent want of juris- on 
 diction (or something becoming manifest in the course of the 
 proceedings), and a patent want of jurisdiction (or a want of jurisdic- 
 jurisdiction apparent on the face of the proceedings). Whilst tion- 
 in cases of latent want of jurisdiction there had always been 
 a great conflict of judicial opinion as to whether the grant of 
 the writ was discretionary or not, the authorities seemed 
 unanimous in deciding that where the want of jurisdiction is 
 patent, the grant of the writ of prohibition is as of course. 
 
 The Lord Justice referred to Buggin v. Bennett (g), where Effect of 
 Lord Mansfield held that the Court was not bound to grant ac( i ui - 
 prohibition to a party who had acquiesced in the proceedings 
 of a Court below, except where the absence of jurisdiction was 
 apparent on the face of the proceedings ; and also to Bodcn- 
 ham v. Rickctts (h), where Lord Denman laid down a similar 
 rule ; to Yatcs v. Palmer (?'), a considered judgment of the 
 Court of Queen's Bench, which adopted that rule ; to Mai/or 
 of London v. Cox (,/), mere acquiescence not giving jurisdic- 
 tion (A-) ; and to Broad v. Perkins (f), argued before a full 
 Court of Appeal, which adopted the opinion of Willes, J., 
 in Mayor of London v. Cox. The reason why prohibition is 
 granted, notwithstanding acquiescence, is, as Lord Denman 
 said (>n), "lest the case might become a precedent if allowed 
 
 (d) Bac. Abr. tit. Proh., citing Raym. 3, 4 ; and see also Sid. 55, where 
 prohibition was said by the judges to be ex debito justitia, and de gratta. 
 
 (e) Bac. Abr. ibid. A prohibition quia timet does not lie : Allen, 36. 
 
 (/) (1894) 1 Q. B. 552 ; 63 L. J. Q. B. 474 ; 70 L. T. 152 ; 42 W. R. 306 ; 
 58 J. P. 495 ; 9 R. 202. 
 
 (g) (1767), 4 Burr. 2035. 
 
 (A) (1836), 6N. &M. 170. 
 
 (t) (1849), 6 D. & L. 283. 
 
 (/) (1866), L. R. 2 H. L. 239 ; 36 L. J. Ex. 225. 
 
 (/t) Knotcles v. Holden (1855), 24 L. J. Ex. 223. 
 
 (0 (1888), 21 Q. B. D. 533 ; 57 L. J. Q. B. 638 ; 37 W. R. 44 ; 60 L. T. 8 ; 
 53 J. P. 39. 
 
 (m) Bodenham v. SicJcetts (1836), 6 N. & M. 170.
 
 90 County Court Appeals. 
 
 to stand without impeachment " ; or, as Lord Justice Lopes 
 considered (;?), because it is a want of jurisdiction of which 
 the Court is informed by proceedings before it, and which the 
 judge should have observed, and of which he himself should 
 have taken notice. 
 
 Lord Justice Davey, after referring to the remarks of 
 Parke, B., in Roberts v. Hnmby (0), said the reason for the 
 distinction between cases in which the excess of jurisdiction 
 appears on the face of the proceedings, and where it does not 
 so appear, is thus explained by Coleridge, J. (p) : " There is 
 reason for refusing the writ, after judgment, in the Court 
 where the proceedings set forth the detail of the matter, and 
 the party has the opportunity for moving for judgment. 
 Then, if he chooses to wait and take his chance of the judg- 
 ment being in his favour, he may be held incompetent to 
 complain of excess of jurisdiction if the judgment is against 
 him. There is, however, good reason for departing from this 
 principle where the defect is apparent on the face of the pro- 
 ceedings below, because the complaint in that case does not 
 rest on the evidence of the complainant ; and if such a defec- 
 tive record were allowed to remain and to support a judgment, 
 it might become a precedent : that which was in truth an 
 excess of jurisdiction might be considered to have been held 
 to be legal." To which Lord Justice Davey added that the 
 learned judge was evidently contrasting cases where the 
 excess of jurisdiction depends on the evidence of the com- 
 plainant with cases in which it is apparent on the face of the 
 proceedings. The case of Mouflct v. Waxhburn (q) seemed to 
 have been a case like In re Jones and James (r), where Erie, J., 
 treated the matter as an irregularity in practice, which might 
 be cured by waiver. 
 
 In Jones v. Owen (s), however, where it was contended that 
 the defendant's attorney had not objected to the jurisdiction, 
 Patteson, J., said " there was a total want of jurisdiction which 
 no assent could cure." 
 
 So, in Taylor v. Nichols (t), Brett, J., thought it obligatory 
 on the Court to grant a prohibition if it be clear upon the 
 law and the facts that the inferior tribunal is proceeding 
 without jurisdiction. 
 
 () Farquharson v. Morgan, (1894) 1 Q. B. 552 ; 63 L. J. Q. B. 474 ; 70 
 L T. 152 ; 42 W. R. 306 ; 58 J. P. 495 ; 9 R. 202. 
 
 (o) (1837), 3 M. & W. 120 ; M. & H. 331 ; 6 D. P. C. 82. 
 
 (p) Marsden v. Wardle (1854), 3 E. & B. 695, at p. 701 ; 2 C. L. R. 1707 ; 
 23 L. J. Q. B. 263 ; 18 Jur. 578. 
 
 (q) (1886), 54 L. T. 16. 
 
 (r) (1850), 19 L. J. Q. B. 25". 
 
 (*) (1848), 5 D. & L. 669 ; 18 L. J. Q. B. 8 ; 13 Jur. 261. 
 
 (0 (1876), 1 C. P. D. 242.
 
 Prohibition. 91 
 
 And the same learned judge, delivering the judgment of 
 the Court of Common Pleas in Woi'thinyto'n v. Jeffries (n), said 
 the Court has, in some cases, a discretion to refuse to prohibit, 
 as where there is a doubt as to what is the true state of the 
 facts, or as to the law applicable. But if the defendant make 
 it clear that, both in fact and law, the inferior Court is pro- 
 ceeding without or beyond jurisdiction, the superior Court is 
 judicially bound, ex debifojustitire, to issue a writ of prohibi- 
 tion ; and in such a case where the defendant in the inferior 
 Court is the applicant, it is not a reason for refusal that the 
 amount in dispute is small, or that the application is made 
 late (z). 
 
 The grounds upon which prohibition is granted are not Grounds 
 whether a suitor has or has not suffered damage, but whether n w ?^ 
 the prerogative has been encroached upon by reason of the 
 prescribed order of the administration having been dis- 
 obeyed (//). 
 
 So, where the foundation for the jurisdiction of the inferior 
 Court is itself defective, prohibition may be applied for at 
 once. But where the inferior Court proceeds in a cause pro- 
 perly within its jurisdiction no prohibition can be awarded 
 until the pleadings raise some issue which the Court is 
 competent to try (s). 
 
 In the case last cited two questions were put by the House Mayor of 
 of Lords to the judges:- . 
 
 (1) Whether the plea (in prohibition) setting up an ancient 
 
 custom of foreign attachment of persons within the 
 boundaries of the Mayor's Court, even where the debt 
 did not arise within its jurisdiction, was a sufficient 
 answer ? and 
 
 (2) Whether the garnishees in the Mayor's Court could 
 
 maintain an action for prohibition without having 
 pleaded in the Mayor's Court ? 
 
 (u) (1875), L. R. 10 C. P. 379 ; 44 L. J. C. P. 209 ; 32 L. T. 606 ; 23 
 TV. R. 750. 
 
 (x) Arid he cited the definition of Prohibition given in Bacon's Abridgment, 
 fide supra ; also the second answer in Articuli Cleri, 2nd Inst., p. 602, vide 
 sup. ; also tenth answer, ibid. ; also 
 
 JTayor of London v. Cox (1866), L. R. 2 H. L. 239 ; 36 L. J. Ex. 225 ; 
 16 W. R. 44, -which " seems to exhaust all learning and ingenuity on ques- 
 tions of Prohibition." See also 
 
 Jackson v. Beaumont (1855), 24 L. J. Ex. 301. 
 
 (y) Per Brett, J., in Worthing ton v. Jeffries (1875), ubi sup.; citing 1 
 
 Wadsworth v. Queen of Spain (1851), 17 Q. B. 171 ; 20 L. J. Q. B. 
 
 488, and distinguishing 
 
 lorster v. Forster and Berndge (1863), 4 B. & S. 187 ; 32 L. J. Q. B. 
 
 312. 
 (;) JTayir of London v. Cox (1865), L. R. 2 H. L. 239 ; 36 L. J. Ex. 225.
 
 92 
 
 County Court Appeals. 
 
 May be 
 absolute 
 or hoe 
 
 usque. 
 
 Ord. LIX. 
 r. 8a. 
 
 C. O. R. 
 
 81. 
 
 The judges answered the first question in the negative, and 
 the second in the affirmative. 
 
 They held that the custom of foreign attachment could not 
 in reason apply to debts or garnishees out of the jurisdiction, 
 citing and approving Turbi/l's Case (a] : " To give jurisdic- 
 tion to the Lord Mayor's Court of London, it is not sufficient 
 that the garnishee reside within the city ; the debt due from 
 the defendant to the plaintiff must also have accrued there ; " 
 and De Ilaber v. Queen of Portugal (b), where Lord Campbell 
 expressed the same view ; and also McDaniel v. Hughes (c), 
 Bnrdcr v. Veley (d), and the cases there collected in the judg- 
 ment of Tindal, C. J. In the latter case the argument was, 
 " Why not appeal ? " Here it was, " Why not pay ? " and 
 the answer was, " I am harassed by process which is un- 
 authorised, and I choose to protect myself by prohibition." 
 
 The judges also approved the doctrine (e) that in local 
 Courts the general rule is that the person proceeded against 
 must be resident, and that the locality of a debt does not 
 follow the person of a garnishee as though he carried it on 
 his back. 
 
 There are some exceptions, however, which from their very 
 nature must be first raised in the Court below (/), as where 
 there is a general jurisdiction over the subject-matter, but a 
 defence is raised which the Court is incompetent to try (V/). 
 
 In considering the case of a prohibition for want of juris- 
 diction the question is, not whether the party or Court has 
 done a wilful wrong, but " whether the Court has or has not 
 jurisdiction" (//) ; and it seems that prohibition, when granted, 
 may be either absolute or hoc usque only until such an act be 
 done (t). 
 
 It is provided by Ord. LIX. r. 8a, of the Rules of the 
 Supreme Court, that every application for a prohibition to a 
 County Court other than an application by the Attorney- 
 Greneral, is to be brought by notice of motion served on the 
 parties to the proceedings in the County Court, or such of 
 them as may not be applicants for the prohibition. By 
 rule 81 of the Crown Office Rules, 1886, application is 
 
 (a) (19 Car. 2), 1 Wms. Saund. 67. 
 
 (A) (1851), 17 Q. B. 171 ; 20 L. J. Q. B. 488. 
 
 (c) (180.3), 3 East, 367. 
 
 (d) (1841), 12 Ad. &E. 309. 
 
 (e) As laid down in Grigg's Case (10 Jac.), Hutton, 59. 
 (/) Blacquicre v. Uawkint (1780), 1 Dougl. 378. 
 
 (ff) JJn/.r of Rutland v. J!,t : /x/iint: (1850), 14 Q. B. 869. 
 
 //' v. Truxl; (1808), 10 East, 348. 
 Pyu-l<->i v. U'hi'ius (1826), 5 B. & C. 1. 
 (h) Ede v. Jackson (12 Geo. 1), Fort. 345. 
 (i) Bac. Abr. tit. Proh.
 
 Prohibition. 93 
 
 made in civil proceedings on the Crown side by motion for 
 an order nisi, or by summons before a judge at Chambers. 
 
 In the result, application for a writ of prohibition to a How ap- 
 County Court may be made either to a Divisional Court or to P Ued for - 
 a judge at Chambers. It is at the option of the applicant to 
 employ either process. If he applies in open Court, he must 
 proceed by notice of motion instead of applying for an order 
 ni*i, as under the former practice (&). 
 
 And orders made on such applications may be made abso- c. O. R. 
 lute ex parte, in the first instance, on special circumstances 82. 
 being shown, in the discretion of the Court (/). 
 ; By the County Courts Act, 1888, applications for writs of County 
 prohibition to any Court may be heard and determined by J 
 any judge of the High Court, as. well during the sittings as s . C i27. 
 in vacation, who may also make such orders for the issuing of 
 such writs as might have been made by the High Court 
 (before the passing of the County Courts Act, 1888), and all 
 such orders so made by any such judge of the High Court 
 are to have the same force and effect as they had before (w). 
 
 All such applications will be finally disposed of by order, Sect. 128 
 and no declaration or further proceedings in prohibition will 
 be allowed. The judge of the Court to be prohibited is not 
 served with notice of the proceedings, and is not, except by 
 order, required to appear or be heard therein, or liable to pay 
 the costs thereof. 
 
 The application proceeds as if it were an appeal, notice 
 being served on such parties as would have been served in the 
 case of an order made or refused by a judge in a matter 
 within his jurisdiction (H). 
 
 The grant of an order or summons to show cause why a Sect. 129 
 writ of prohibition should not issue only operates as a stay of 
 proceedings if the High Court or judge so directs (o) ; and a Sect. 130 
 copy of the order should be served on the other side, and on 
 the registrar, two clear days before the day fixed for the trial 
 of the action or matter ; and a similar duty exists where the 
 writ of prohibition has been granted on an ex parte applica- 
 tion (p). 
 
 Neither a Master in the Queen's Bench Division, nor a Master 
 
 Registrar in the Probate, Divorce, and Admiralty Division, cannot 
 
 grant. 
 
 (k) Per Mathew, J., in King v. Charing Cross Bank (1889), 24 Q. B. D. 27. 
 
 ff) C. 0. R. 1886, r. 82. 
 
 (>} County Courts Act, 1888, s. 127. 
 
 () Ibid. B. 128. 
 
 (o) Ibid. s. 129. 
 
 (p}Ibid. BS. 129, 130.
 
 94 
 
 County Court Appeals. 
 
 Orders 
 applied 
 to prohi- 
 bition. 
 
 High 
 Court 
 proceed- 
 ings can- 
 not be re- 
 strained. 
 
 Remedy 
 on refusal 
 is by ap- 
 peal. 
 
 Old prac- 
 tice. 
 
 In vaca- 
 tion. 
 
 has jurisdiction to make orders in prohibition (<?), it heing 
 vested only in the judges (>). 
 
 By Ord. LXVIII. r. 2, the orders relating to Amend- 
 ment (s), Special Case (z 1 ), Affidavits (M), Motions (x), Ap- 
 peals (>/), Time (z), Costs (a), Notices (b), and Non-com- 
 pliance (c) are, so far as they are applicable, to apply to all 
 civil proceedings on the Crown side of the Queen's Bench 
 Division, including prohibition. 
 
 No cause or proceeding pending in the High Court can be 
 restrained by prohibition (d) . 
 
 When the Court refuses to grant a writ of prohibition no 
 other Court will do so, though the applicant may appeal (c). 
 
 Under the old practice an applicant might move for the 
 writ in one Court, and if there refused, move again in 
 another. But then there was no appeal. The right of 
 appeal having been given by the Judicature Act, 1873, s. 19, 
 it is unnecessary that the old practice should continue, and, 
 in the opinion of the Master of the Rolls, it is the real object 
 of sect. 132 of the County Courts Act, 1888, to do away with 
 it. So, where an applicant has applied to a judge of the 
 High Court, he cannot, if refused, go to another judge ; and 
 if he has applied to a Divisional Court, he is precluded from 
 moving another Divisional Court. But he may appeal in 
 either case. 
 
 And when prohibition is applied for to a judge sitting in 
 vacation, that judge exercises the jurisdiction of all the Divi- 
 sions ; so that when there is an Admiralty case before him, 
 he acts, as a judge of the Admiralty Division, with all the 
 powers of a judge of the High Court ; and an appeal will lie 
 direct from the Admiralty judge to the Court of Appeal (/). 
 
 (q) Ord. LIV. r. 12 (g). 
 
 (r) Judicature Act, 1873, 8. 16 ; The Eecepta, (1893) P. 255 ; 69 L. T. 252 ; 
 41 W. R. 561. 
 (*) Ord. XXVIII. 
 (0 Ord. XXXIV. 
 (M) Ord. XXXVIII. 
 (x) Ord. LII. 
 (y) Ord. LVIIL 
 (z) Ord. LXIV. 
 
 (a) Ord. LXV. 
 
 (b) Ord. LXVL 
 
 (c) Ord. LXX. 
 
 (d) Judicature Act, 1873, s. 24 (5). 
 
 (e) The Jiccepta, (1893) P. 255 ; 69 L. T. 252 ; 41 "W. R. 561 ; 62 L. J. 
 
 P. 18. 
 
 Eartonv. Titchmarsh (1880), 49 L. J. Ex. 573; 42 L. T. 610; 28 
 
 W. R. 821. 
 
 ( /) Per Ld. E*htr, M. R., The Recepta, (1893) P. 255 ; 62 L. J. P. 18 ; 69 
 L. T. 252; 41 W. R. 561.
 
 Prohibition. 95 
 
 Where prohibition was, in an old case, moved on three Grounds 
 several grounds, Holt, C. J., disapproved of matters being s ^H ld be 
 joined which formed grounds of a different nature (g) ; but 
 more recently it was held that where a plaint contains two 
 claims, one of which is within and the other without the 
 jurisdiction, a prohibition may be granted as to one only (h). 
 
 The right to grant a writ of prohibition not belonging ex- Costs, 
 clusively to the Crown side of the Queen's Bench Division, 
 though usually moved for on that side (/), the High Court, 
 in making a rule absolute for a prohibition without plead- 
 ings, may make an order for costs (k). 
 
 Where pleadings in prohibition are ordered, the pleadings Pleadings, 
 and subsequent proceedings, including judgment and assess- 
 ment of damages, if any, are to be, as nearly as may be, the 
 same as in an ordinary action for damages (/). 
 
 And it was held (w) that a judge sitting at chambers has 
 jurisdiction to set aside a writ of prohibition issued out of 
 the Petty Bag Office (). 
 
 The defendant in an action in the Mayor's Court may Against 
 obtain a writ of prohibition notwithstanding sect. 15 of the Mayor's 
 Mayor's Court Procedure Act, 1857, which only limits the our ' 
 modes of objecting, within the Mayor's Court itself, to its 
 jurisdiction (o). 
 
 Though usually granted by the common law Courts, the Court of 
 Court of Chancery has an ancient and undoubted jurisdiction Chancery 
 to grant the writ (p). 
 
 (g}^Anon. (3 Anne), 6 Mod. 308. 
 
 (A) Per Pollock, B., in R. v. Westmoreland County Court (1888), 58 L. T. 
 
 417 ; 36 W. R. 477. See also 
 Godfrey v. Lazarus (1887), 4 T. L. R. 101. 
 
 In re Wahh v. lonides (1853), 1 E. & B. 383 ; 22 L. J. Q. B. 137 ; 
 
 17 Jur. 596. 
 
 Free v. Burgoyne (1826), 2 Bligh, N. S. 65 : 6 B. & C. 27, 538 ; 9 D. 
 (i) The Rectpta, (1893) P. 255 ; 69 L. T. 252 ; 41 W. R. 561. [<fc R. 14. 
 
 (k) Reg. v. Justices of City of London, (1894) 1 Q. B. 453 ; 63 L. J. Q. B. 
 
 301 ; 70 L. T. 148 ; 42 W. R. 225 ; 58 J. P. 380. 
 
 Wallace v. AlUn (1875), L. R. 10 C. P. 607 ; 44 L. J. C. P. 351 ; 
 
 (?) Ord. LXVIII. r. 3. [32 L. T. 830 ; 23 W .R. 351. 
 
 (M) Amstell v. Lesser (1885), 16 Q. B. D. 187 ; 55 L. J. Q. B. 114 ; 53 L. T. 
 
 759 ; 34 W. R. 230. 
 
 (w) Kyrburg \. Posanski (1884), 13 Q. B. D. 218. And see 
 
 Swain v. Cox (1850), 1 C. C. A. 362, where a prohibition which 
 upon its face appeared to be regular was not set. aside, though issued ex 
 parte. 
 
 (o) Jacobs v. Brett (1875), L. R. 20 Eq. 1 ; 44 L. J. Ch. 377 ; 32 L. T. 522 ; 
 23 W. R. 556. 
 
 (p) Ibid., per Jessel, M. R., disapproving Crompton, J., in Manning v. 
 
 FarquMrscn (I860), 29 L. J. Q. B. 22 ; 6 Jur. N. S. 1300, and 
 Baker v. Clark (1873), L. R. 8 C. P. 121 ; but approving 
 Quartly v. Timmins (1874), L. R. 9 C. P. 416 ; 22 "W. R. 488 ; and 
 Cooke v. Gill (1873), L. R. 8 C. P. 107 ; 42 L. J. C. P. 98 ; 28 L. T. 
 
 32; 21 W. R. 334.
 
 96 County Court Appeals. 
 
 Appeal An appeal lies, without leave, from the decision of a Divi- 
 
 ITV . , sional Court upon an application for a prohibition to a County 
 
 Divisional . i VA I i L j i j 
 
 Court Court, inasmuch as a general right 01 appeal existed belore 
 lies with- the passing of the County Courts Act, 1888, and is not taken 
 out leave. away fey sect _ 128 O f t h at Act, w ych directs that " the appli- 
 cation [for a prohibition] shall be proceeded with and heard 
 in the same manner in all respects as any case of an appeal 
 duly brought from a decision of a judge." This section 
 relates only to procedure in the High Court, and leaves the 
 right of appeal in the same position as it was before the 
 Act (q). 
 
 Obtaining A party who objected that a County Court judge had no 
 
 special jurisdiction to determine a plaint was held not to have 
 
 acquf- 0t acquiesced in the jurisdiction of that Court, or to have waived 
 
 escence. his right to a writ of prohibition by obtaining from the 
 
 judge the statement of a case for the opinion of a superior 
 
 Court (r). 
 
 Cases con- Prohibitions have been granted (e.g.) in ihe following circnm- 
 sidered. stances : 
 
 Where the whole cause of action did not arise in a 
 
 certain locality, so as to give jurisdiction to the local 
 
 Court to try it (s) ; 
 Where the judge in effect left with the jury the question 
 
 whether he had jurisdiction or not (t) ; 
 Where the inferior Court has wrongly decided a fact 
 
 which gave it jurisdiction (M) ; 
 Where a County Court judge ordered a bailiff outside 
 
 his jurisdiction to compensate an execution debtor (.r) ; 
 Where a County Court judge made an order for pay- 
 
 (q) Lister v. Wood (1889), 23 Q. B. D. 229 ; 37 W. R. 738 ; 53 J. P. 773. 
 (r) Jackson v. Beaumont (1855), 11 Ex. 300; 24 L. J. Ex. 301. 
 
 (a) E.g., Borthwick v. Walton (1855), 15 C. B. 501 ; 24 L. J. C. P. 175 ; 
 
 1 Jur. N. S. 142 ; 3 C. L. K. 364. 
 Whinney v. Schmidt (1873), L. R. 8 C. P. 118. 
 
 De Haber v. Queen of Portugal (1851), 17 Q. B. 171 ; 20 L. J. Q. B. 
 
 488 ; 41 W. R. 153. 
 
 Cooke v. Gill (1873), L. R. 8 C. P. 107 ; 42 L. J. C. P. 98 : 28 L. T. 
 
 32; 21 W. R. 334. 
 
 Robinson v. Emanuel (1874), L. R. 9 C. P. 414 ; 43 L. J. C. P. 244 ; 
 
 30 L. T. 500. 
 (0 Jackson v. Beaumont (1855), 11 Ex. 300; 24 L. T. 301. 
 
 (u) Liverpool Gas Co. v. Evertun (1871), L. R. 6 C. P. 414; 40 L. J. 
 
 M. C. 104 ; 23 L. T. 813 ; 19 W. R. 412. 
 
 Ehtone v. Rose (1868), L. R. 4 Q. B. 4 ; 38 L. J. Q. B. 6 ; 19 L. T. 
 
 280 ; 17 W. R. 52 ; 9 B. & S. 509. 
 
 (x) Reg. v. Shropshire County Court (1887), 20 Q. B. D. 242 ; 57 L. J. Q. B. 
 143 ; 58 L. T. 86 ; 33 W. R. 170.
 
 Prohibition. 97 
 
 ment by instalments, the debtor to be committed upon 
 
 default in paying any instalment (i/) ; 
 Where there was a total want, or clearly excessive exer- 
 cise, of jurisdiction (2), even where there had been an 
 
 evident breach of contract (a) ; 
 Where there existed a bond fide dispute as to title to 
 
 land, without waiting to inquire as to whether the 
 
 title actually set up was good in fact (K) ; 
 Where a single cause of action was wrongfully divided, 
 
 such portion being,- as to pecuniary value, within the 
 
 Court's jurisdiction (c) ; 
 Where the judge nonsuited the plaintiff, and awarded 
 
 costs to the defendant in an action of trespass, on title 
 
 to the land being set up (d) ; 
 Where the County Court judge awarded costs on a scale 
 
 greater than the amount claimed without certifying 
 
 that the action involved some difficult point of law, or 
 
 that the question was of some public interest (e) ; 
 
 (y) Reg- v. Brompton County Court (1886), 18 Q. B. D. 213; 57 L. J. 
 
 Q. B. 510 ; 59 L. T. 66 ; affirmed on appeal, in 
 Stonorv. Fowle (1887), 13 App. Gas. 20, 
 
 as to this point, by the House of Lords, though the judgment of the Court of 
 Appeal was reversed on other grounds, adopting the rule laid down by 
 Wffles, J., in 
 
 Re Debtors Act, 1869 (1870), 22 L. T. 666, 
 
 that the judge cannot make a prospective order for committal in default of 
 payment by instalments. 
 
 (z) In re Wahh v. lonides (1853), 1 E. & B. 383 ; 22 L. J. Q. B. 137 ; 
 
 Chambers v. Green (1875), L. E. 20 Eq. 552 ; 44 L. J. Ch. 600 ; 
 
 approving 
 
 In re Forster (1863), 4 B. & S. 187 ; 3 S. & T. 144 ; 31 L. J. Mat. 
 185 ; 9 L. T. 147 ; and not following 
 
 Worthington v. Jc/eries (1875), L. R. 10 C. P. 379 ; 32 L. T. 606 ; 
 
 23 W. E. 750 ; 44 L. J. C. P. 209. 
 (a) In re Walsh v. lonides (1853), 1 E. & B. 383 ; 22 L. J. Q. B. 137. 
 
 (b) Sen-ell v. Jones (1850), 1 L. M. & P. 525 ; 19 L. J. Q. B. 372; 15 
 
 Jur. 153; 
 
 Pearson v. Glazebrook (1867), L. E. 3 Ex. 27 ; 37 L. J. Ex. 15 ; 17 
 
 L. T. 260. 
 
 But the claim must be a bond fide one, and the right claimed one that can 
 exist in point of law. 
 
 Lloyd v. Jones (1848), 6 C. B. 81 ; 17 L. J. C. P. 206 ; 12 Jur. 657 ; 
 
 5 D. & L. 784. 
 
 (c) In re Aykroyd (1847), 1 Ex. 479 (decided under 9 & 10 Viet. c. 95, 
 s. 63, which forbade the division of a cause of action). See sect. 81 of 
 the County Courts Act, 1888, which contains a similar prohibition. 
 
 (d) Lawford v. Partridge (1857), 1 H. & N. 621 ; 26 L. J. Ex. 147 ; 3 Jur. 
 N. S. 271. 
 
 (e) Howard v. Graves (1885), 52 L. T. 858; W. N. 113. See County 
 Courts Act, 1888, s. 119. The reservation of the powers, rights and pri- 
 vileges of the judge of the Gity of London Court in sect. 35 of the County 
 Courts Act, 1867, was held not to confer upon him any greater power over 
 
 C. H
 
 98 County Court Appeals. 
 
 Where a judge rescinded his judgment in the absence 
 of one of the parties, it having been given in his 
 presence (/) ; 
 
 Where a County Court judge inflicted a fine, with 
 imprisonment in the alternative, for a contempt not 
 committed in facie cur ice (g] ; 
 
 Where a second order of committal was made for non- 
 payment of a debt under a judgment in respect of 
 which a former order, already issued, was pend- 
 ing (A) ; 
 
 Where the judge has amended a plaint so as to turn it 
 into one over which he has cognizance, when, in its 
 original form, it disclosed no matter of complaint 
 within his jurisdiction (/) ; 
 
 Where a plaintiff sought to make out a case over which 
 a County Court had no jurisdiction, under colour of a 
 plaint on which it might have it (k) ; 
 
 Where, on a claim for rent, conflicting evidence was 
 given in defence which the judge rejected, but which 
 clearly raised a question of title, and which, in conse- 
 quence, he should have admitted, since, if admitted, it 
 would have sufficiently raised a question of title to 
 deprive him of jurisdiction, if bond fide (/) ; 
 
 Where a judge assumed jurisdiction, not by deciding 
 
 costs than that given to judges of County Courts. (Hoivard v. Graves, 
 supra.} By the County Courts Act, 1888, s. 185, the City of London Court 
 is, in effect, a County Court. 
 
 (/) Jones v. Jones (1848), 5 D. & L. 628 ; 17 L. J. Q. B. 170. 
 
 Such alteration cannot be made except by consent, or after a new trial. 
 
 Irving v. Askew (1870), L. R. 5 Q. B. 208; 39 L. J. Q. B. 118; 
 
 18 W. R. 467. 
 
 He isfuncttis officio. Similarly, where a new trial has been once refused, 
 the judge cannot afterwards grant one on changing his mind. 
 
 G. N. Railway v. Mossop (1855), 17 C. B. 130 ; 25 L. J. C. P. 22 ; 
 
 2 Jur. N. S. 21. 
 
 (g) Reg. v. Lefroy (1873), L. R. 8 Q. B. 134 ; 42 L. J. Q. B. 121 ; 28 L. T. 
 132 ; 21 W. R. 332. 
 
 (A) Horsnailv. Bruce (1873), L. R. 8 C. P. 378; 42 L. J. C. P. 140 ; 
 
 28 L. T. 705; 21 W. R. 597. 
 
 For after making an order of commitment on a judgment debt the judge 
 is functm officio, and cannot commit again, unless the debt is payable by 
 instalments ; in which case the debtor may be committed separately for 
 default in each instalment. 
 
 Evans v. Wills (1876), 1 C. P. D. 229 ; 45 L. J. C. P. 420 ; 34 L. T. 
 
 679 ; 24 W. R. 883. 
 
 (i) Hopper v. Warburton (1863), 32 L. J. Q. B. 104; 7 L. T. 722; 11 
 W. R. 384. 
 
 (k) Hunt T. N. Staffordshire Railway (1857), 2 H. & N. 451. 
 (/) Mountnoy v. (Jollier (1853), 17 Jur. 503 ; 1 E. & B. 630 ; 22 L. J. Q. B. 
 126, n.
 
 Prohibition. 99 
 
 conflicting facts, but on a wrong assumption as to a 
 point of law (ni) ; 
 
 Where the County Court judge wrongly decided that 
 title to land did not come into question (ti) ; 
 
 Where a tenant, under an agreement, was to pay 17. 
 weekly (thus making an annual rent of over 50/.), but 
 in fact was permitted to pay only 16s., and the judge 
 tried the action (o) ; 
 
 Where an order of a County Court directed trustees 
 under a will, who were strangers to the action, to pay 
 money to a receiver, though the will directed other- 
 wise (p) ; _ 
 
 Where a suit by the claimant in an interpleader was 
 dismissed on account of the omission of his full name 
 and address ; such omission not being sufficiently mis- 
 ' leading to be within the rule (q) ; 
 
 Where the judge of his own accord, at the hearing, and 
 without the consent of the defendant, amended the 
 plaint so as to reduce the amount claimed to 50/., and 
 gave judgment for that amount (r) ; 
 
 (m) Ehton v. Rose (1868), L. E. 4 Q. B. 4 ; 38 L. J. Q. B. 6 ; 17 "W. E. 
 52 ; 19 L. T. 280 ; 9 B. & S. 509. 
 
 () Thomson v. Ingham (1850), 14 Q. B. 710; 19 L. J. Q. B. 189; 
 
 14 Jur. 429 : approved in 
 Ehton v. Hose, tibi sup. 
 
 (o) Crowley v. Fifty (1852), 7 Ex. 319 ; 21 L. J. Ex. 135. 
 (p) Reg. \. Lincolnshire County Court (1887), 20 Q. B. D. 167 ; 57 L. J. Q. B. 
 136 ; 58 L. T. 54 ; 36 W. E. 174. Pollock, B., refused to accept the con- 
 tention that the High Court cannot interfere by prohibition, when once it is 
 shown that there was jurisdiction, but that it was exceeded in consequence 
 of the wrong construction of a document. Generally it is impossible to 
 ascertain before the matter arises that there -will be an excess of jurisdiction ; 
 as, for instance, in a case in which title to land is involved, where the County 
 Court judge cannot tell whether he has jurisdiction or not until the value of 
 the land has been ascertained. The judge ought to go on with the inquiry 
 till he has ascertained that, if he goes any further, he will exceed his juris- 
 diction, and then he ought to stop ; for if he goes further he will render 
 himself liable to prohibition. A judge cannot give himself jurisdiction by 
 construing an Act of Parliament wrongly. 
 
 (q) Ex parts JfcFee, Re Hardy v. Walker (1853), 9 Ex. 261 ; 23 L. J. 
 
 Ex. 57 : approving 
 
 Thomson v. Ingham (1850), 14 Q. B. 710; 19 L. J. Q. B. 189 ; 14 
 
 Jur. 429, 
 
 that a question like this cannot be conclusively determined by a County 
 Court judge, but is subject to review. 
 
 Eunbury v. Fuller (1853), 9 Ex. Ill ; 23 L. J. Ex. 29. 
 
 M Hill v. Swift (1855), 10 Ex. 726 ; 3 C. L. E. 724 ; 24 L. J. Ex. 137; 
 
 1 Jur. N. S. 167. 
 The plaintiff must abandon the excess, not the judge : approving 
 
 Isaacs v. Wyld (1851), 2 L. M. & P. 676 ; 7 Ex. 163 ; 21 L. J. Ex. 
 
 48; 15 Jur. 1135. 
 
 H2'
 
 County Court Appeals. 
 
 Where relief was wrongly granted under a counter- 
 claim (s) ; 
 
 Where a person not entitled to apply to a County Court 
 as a " person interested " under the Friendly Societies 
 Act (t) was permitted to do so (M). 
 
 Prohibitions have been refused (e.g.) in the following cases : ' 
 
 Where the matter was tried on evidence that could have 
 been, but was not, questioned (x) ; 
 
 Where the rent payable as between the litigants was 
 under the annual value allowed, although by a sub- 
 lease a higher rent was paid (y) ; 
 
 Where the County Court judge decided, on conflicting 
 evidence, a question of fact, even though his jurisdic- 
 tion depended upon it (s) ; 
 
 Where defendant (in an action in the Mayor's Court) 
 carried on business, and part of the cause of action 
 arose within the City, and the amount claimed was 
 under 50/. (a) ; 
 
 Where an officer of a County Court seized property to a 
 greater amount than was necessary, the proceedings 
 being in other respects in order (b) ; 
 
 Where a new summons had been issued bearing date of 
 a prior but defective one, though the Statute of Limi- 
 tations would have run against the plaintiff (c) ; 
 
 (*) Davis v. The Flagstaff Mining Co. (1878), L. R. 3 C. P. D. 228; 47 
 L. J. C. P. 503 ; 38 L. T. 769 ; 26 W. R. 431. 
 (0 18 & 19 Viet. c. 63. 
 
 (M) Sullv. McFarlane (1857), 2 C. B. N. S. 796; 27 L. J. C. P. 41 ; 
 
 3 Jur. N. S. 1262. 
 
 Smith v. Pryse (1857), 7 E. & B. 339 ; 26 L. J. Q. B. 95 ; 5 W. R. 
 
 294 ; 3 Jur. N. S. 387. 
 
 (x) Winsor v. Dunford (1848), 12 Q. B. 603 ; 18 L. J. Q. B. 14 ; 12 Jur. 
 629. 
 
 (y) Brown v. Cocking (1868), L. R. 3 Q. B. 672 ; 37 L. J. Q. B. 250 ; 18 
 L. T. 360 ; 16 W. R. 933 ; 9 B. & S. 503. But the sublease would be strong 
 evidence of a higher value. 
 
 (z) Brown v. Cocking (1868), ubi sup. : compare with 
 
 Joseph v. Henry (1850), 1 L. M. & P. 388 ; 19 L. J. Q. B. 369 ; 15 
 
 Jur. 104. 
 
 In Pears v. TTt&on (1851), 6 Ex. 833 ; 2 L. M. & P. 515 ; 20 L. J. 
 
 Ex. 381 ; 15 Jur. 932, 
 
 where the question was whether certain money left under a will was a 
 legacy or a trust, the High Court considered the question, and discharged a 
 rule for prohibition, holding that the money was a legacy, and that therefore 
 the County Court had jurisdiction. 
 
 (a) Hau-es v. Paveley (1876), 1 C. P. D. 418; 46 L. J. C. P. 18; 34 
 
 L. T. 835 ; 24 W. R. 895. 
 Hawkins v. Jeffm/s (1876), 34 L. T. 837. 
 (b} Ex parte Summers (1854), 18 Jur. b'1'1 ; 2 C. L. R. 1284. 
 (c) Foster v. Temple (1848), 5 D. & L. 655; 17 L. J. Q. B. 230; 12 Jur. 
 654.
 
 Prohibition. 101 
 
 Where a new trial was sanctioned on account of defec- 
 tive service (d) ; 
 
 Where a summons had been served on a defendant 
 residing out of the jurisdiction without the necessary 
 leave, defendant having appeared (e) 
 
 Where the question of title to an office was not raised at 
 the hearing, and the party was taken or admitted to 
 be duly appointed (/) ; 
 
 Where, after commencement of an action in a County 
 Court, the defendant had applied to the High Court 
 to restrain the suit on the ground that the land, of 
 which it was the subject, was above the limit of value, 
 and the application was refused (g) ; 
 
 Where the cause of action was within the jurisdiction of 
 the County Court, though the judge erroneously took 
 other matters into consideration when assessing the 
 damages (h) ; 
 
 Where the judge merely erred in the exercise of his 
 powers, and did not exceed his jurisdiction (z) ; 
 
 Where the judge had, in fact, jurisdiction (k), however 
 erroneous the decision (/) , even though there were not 
 a particle of evidence to support it (in} ; 
 
 Where an order made under the Debtors Act was in- 
 formally drawn (n) ; 
 
 (rf) Zohrab v. Smith (1848), 5 D. & L. 635 ; 2 B. C. Eep. 231 ; 17 L. J. 
 
 Q. B. 174; 12 Jur. 603. 
 Waters v. Handley (1848), 6 D. & L. 88. 
 
 (e) Moore v. Gamgee (1890), 25 Q. B. D. 44 ; 59 L. J. Q. B. 505 ; 38 W. R. 
 669 ; County Courts Act, 1888, s. 74. 
 
 (/) Stevenson v. Stickle (1849), 13 Jur. 1103. 
 
 Gtcynne v. Knight (1848), 1 Ex. 802 ; 17 L. J. Ex. 168. 
 So, where no objection was made to the interpretation of a statute ; 
 
 Home v. Earl Camdm (1795), 2 Bl. 533. 
 (ff) Symons v. Eees (1876), 1 Ex. D. 416 ; 25 W. R. 116. 
 
 (A) Chivers v. Savage (1855), 5 E. & B. 697 ; 25 L. J. Q. B. 85 ; 2 Jur. 
 
 N. S. 137 : distinguishing 
 
 Jones v. Currey (1851), 2 L. M. & P. 474 ; 20 L. J. Q. B. 438 ; 15 
 
 Jur. 610. 
 
 (i) Still v. Sooth (1850), 19 L. J. Q. B. 521 ; 15 Jur. 577 ; 1 L. M. & 
 
 P. 440. And 
 
 In re Sou-en (1851), 15 Jur. 1196, 
 
 where Patteson, J., held that the mere misconstruction of a statute was not 
 a ground for prohibition : and distinguished 
 
 Gould v. Gapper (1804), 5 East, 345 ; 1 Smith, 528. 
 
 (i) Toft v. Eayner (1847), 5 C. B. 162. 
 
 Robinson v. Lenaghan (1848), 2 Ex. 333 ; 17 L. J. Ex. 174 ; 5 D. & 
 
 L. 713; 12 Jur. 399. 
 
 (1) Harris v. Carrington (1864), 16 C. B. N. S. 10. 
 (m) Lexden Union v. Southgate (1854), 10 Ex. 201 ; 23 L. J. Ex. 316. 
 () Harris v. Slater (1888), 21 Q. B. D. 359; 57 L. J. Q. B. 539; 37 
 W. E. 56.
 
 102 County Court Appeals. 
 
 Where the bishop of the diocese was interested in the 
 cause, that being no ground for prohibiting a cause 
 before the Chancellor in the Consistory Court (o) ; 
 
 Where it was attempted, in an action under the Em- 
 ployers' Liability Act, to stay an action commenced 
 in a County Court, by giving the notice, under sect. 39 
 of 19 & 20 Yict. c. 108, to remove the action into a 
 superior Court (p) ; 
 
 Where the proper remedy was by way of appeal (q). 
 
 (o) Ex parte Medwin (1853), 1 E. & B. 609; 22 L. J. Q. B. 169; 17 Jur. 
 1178. 
 
 (p) Reg. v. City of London Court (1885), 14 Q. B. D. 905 ; 54 L. J. Q. B. 
 330 ; 52 L. T. 537 ; 33 W. E. 700. 
 
 (q) Barker v. Palmer (1881), 8 Q. B. D. 9 ; 51 L. J. Q. B. 110 ; 45 L. T. 
 480; 30 W. E. 59.
 
 103 
 
 CHAPTEE XVIII. 
 
 CERTIORARI. 
 
 A CERTIORARI is an original writ issuing out of the Queen's Descrip- 
 Bench or Chancery Division, directed in the king's name to tlon ' 
 the judges or officers of inferior Courts, commanding them to 
 return the records of a cause depending before them, so that 
 the party may have the more sure and speedy justice. The Discre- 
 power to grant the writ is discretionary ; and after its issue, tionary- 
 all subsequent proceedings on the record in the Court below 
 are erroneous (a). 
 
 By the County Courts Act, 1888 (6), no judgment or order County 
 of any judge, nor any action or matter brought before him or ^ciTisss 
 pending in his Court, shall be removed by appeal, motion, jj ei ^ ova i 
 certiorari, or otherwise, into any other Court whatever, save only under 
 and except in the manner and according to the provisions of Act. 
 that Act. 
 
 Sect. 126 enables the High Court, or a judge thereof (c), to 
 order the removal into the High Court, by writ of certiorari 
 or otherwise, of any action or matter commenced in the Court 
 under the provisions of the Act, if he shall deem it desirable 
 that it shall be tried in the High Court, and upon such terms 
 as -to payment of costs, giving security or otherwise, as he 
 shall think fit to impose (d}. That is, the Court may make 
 the order at any time before the matter is finally disposed of, 
 and even though its hearing has been commenced in the 
 County Court (c). 
 
 The grant of an order or summons to show cause why a 
 
 (a) Bac. Abr., Cer. 
 
 fe) 51 & 52 Viet. c. 43, e. 124. 
 
 (c) Which, by Ord. LIV. r. 12, includes a Master. See also 
 
 Banks v. Sollingsworth, (1893) 1 Q. B. 442 ; 4 E. 228 ; 62 L. J. 
 
 Q. B. 239 ; 68 L. T. 477 ; 41 W. R. 225 ; 57 J. P. 436. 
 
 In re Bowen v. Evans (1848), 3 Ex. Ill ; 5 D. & L. 193 ; 18 L. J. 
 
 Ex. 38. 
 
 (rf) 51 & 52 Viet. c. 43, s. 126. 
 
 [} In re East Dultcich, No. 295, Starr-BmvJcett Building Society (1890), 39 
 W. R. 32.
 
 104 County Cotirt Appeals. 
 
 writ of certiorari should not issue to any Court, will operate 
 as a stay of proceedings in the action or matter to which it 
 relates, if the High Court or judge thereof so directs (/). 
 And where a writ of certiorari to a Court shall have been 
 granted on an ex parte application, the party obtaining it 
 must lodge it with the Registrar and give notice to the oppo- 
 site party that it has issued two clear days before the day 
 fixed for the trial of the action or matter to which it relates, 
 or he may be ordered to pay the costs (g). 
 
 "\Vhen a writ of certiorari has been refused, no other Court 
 or judge is to grant it ; but the party may appeal from the 
 decision, or apply again on different grounds (//). 
 
 Any action of replevin shall be removed into the High 
 Court by writ of certiorari, if the defendant shall apply to the 
 Court or a judge thereof for such writ, and give security (f) . 
 
 And a judge of the High Court may order a writ of 
 certiorari to issue to remove a judgment of a County Court 
 exceeding 20/. into the High Court, if he is satisfied that the 
 defendant has no goods or chattels which can conveniently be 
 taken to satisfy it ; and when removed it will have the same 
 force and effect as a judgment of the High Court (/.). 
 C. O. E., By the Crown Office Rules (/), applications for writs of 
 r * ' certiorari, or for orders to remove indictments found at the 
 assizes, into the Queen's Bench Division at the instance of 
 any person other than the Attorney-General on behalf of the 
 Crown, are, during the sittings, to be made to a Divisional 
 Court of the Queen's Bench Division by motion for an order 
 wV to show cause ; and in the vacation, or when there is no 
 sitting of a Divisional Court, to a judge at Chambers (w), for 
 a summons to show cause. 
 
 But where, from special circumstances, the Court or a judge 
 is of opinion that the writ should issue forthwith, the order 
 may be made absolute, or an order be made in the first 
 instance, either ex parte or otherwise, as the Court or judge 
 may direct. 
 
 Grounds Q ne ground U p O n which the Court will act in removing 
 actions from inferior Courts is when it sees that difficult 
 questions of law will probably arise at the trial (>i) . Another 
 ground has relation to the character of the evidence necessary 
 
 (/) 51 & 52 Viet. c. 43, s. 129. 
 
 (y) Ibid. 8. 130. 
 
 (h) Ibid. B. 132. 
 
 (t) Ibid. s. 137. 
 
 (*) Mid. s. 151. 
 
 (/) C. O. R. 28. 
 
 (m) Or a Master. Ord. LIV. r. 12. 
 
 (n) Longbottom v. longbottom (1852), 8 Ex. 203 ; 22 L. J. Ex. 74.
 
 - Certforari. 105 
 
 to support the case, as, for instance, if a considerable amount 
 of expert evidence will have to be called (0) . 
 
 There may be other grounds in each particular case, as, for 
 example, the fact that the judge of the inferior Court has, in 
 another but similar case, formed a certain view (p) ; or that 
 the trial in a certain neighbourhood would be unfair to one of 
 the parties (q) . 
 
 By clause 12 of the schedule to the Borough and Local Mayor's 
 Courts of Record Act, 1872 (which was applied to the our ' 
 Mayor's Court by Order in Council), " no action entered in 
 the Court shall, before judgment, be removed or removable 
 from the Court into any superior Court by any writ or 
 process, except by leave of a judge of one of the superior 
 Courts, in cases which shall appear to such judge fit to be 
 tried in one of the superior Courts." And it was held that 
 this clause imposed a limitation on the previous right of a 
 defendant to have an action removed into the superior Court 
 under the Mayor's Court Act, 1857, and gave power to the 
 judge, in the exercise of his discretion, to order the removal 
 of any such action, but subject to the condition precedent 
 that the judge should first be satisfied that the action was fit 
 to be tried in the superior Court, the expression " case fit to 
 be tried in the superior Courts," meaning a case which 
 " ought" to be tried there, or which is more fit to be tried 
 there than in an inferior Court (r). Appeal 
 
 An appeal lies without leave from the decision of a Divi- J^, ve u 
 sional Court upon a rule to show cause why a writ of certiorari from Di- 
 shouldnot issue (s). ColS* 1 
 
 "When an action or matter has been transferred to the High OU] 
 Court, the practice relating to it thereafter will be that by a f 
 which matters in the High Court are regulated (t). transfer. 
 
 (o) Potter v. G. W. Colliery Co. (1894), 10 T. L. R. 380. 
 
 (p) Ibid., per Lopes and Davey, L.JJ. 
 
 (q) Bates v. Warner (1889), 5 T. L. R. 582. 
 
 ( r ) Banks v. Hollingsworth, (1893) 1 Q. B. 442; 4 R. 228; 62 L. J. 
 
 Q. B. 239 ; 68 L. T. 447 ; 41 W. R. 225 ; 57 J. P. 436. 
 Cherry v. Endean (1886), 55 L. J. Q. B. 292; 54 L. T. 793; 34 
 
 "W. R. 458. 
 
 (s) Reg. v. Pemlerton (1879), 5 Q. B. D. 95 ; 49 L. J. M. C. 29 ; 41 L. T. 
 664 ; 28 W. R. 362 ; 44 J. P. 184. 
 
 (t) Davies v. Williams (1879), 13 Ch. D. 550 ; 49 L. J. Ch. 352 ; 42 L. T. 
 469 ; 28 W. R. 223.
 
 INDEX. 
 
 ACCELERATE 
 
 case in Crown paper, application to, 50. 
 
 ACTIONS, 
 
 of ejectment and title under Act of 1867. .5. 
 remitted under Act of 1867. .5. 
 Act of 1888.. 8. 
 
 appeal in, 8. 
 
 become County Court actions, 8. 
 removal of, to High Court, 10. 
 
 ADJUDICATIONS, 
 
 application to annul, 63. 
 
 ADMIRALTY APPEALS, 66. 
 
 amount of judgment, 67. 
 
 applications for enlargement of time, how made, 70. 
 
 counsel, how heard, 71. 
 
 effect of Act of 1888.. 67. 
 
 evidence in, 68. 
 
 fresh evidence in, 69. 
 
 from Divisional Courts, 71. 
 
 from Liverpool Court of Passage lie to Court of Appeal, 70. 
 
 instrument of appeal, what is, 70. 
 
 interlocutory orders, 68. 
 
 judge's note, 68. 
 
 lie to Divisional Court, 69. 
 
 may be by motion as well as by lodging instrument of appeal, 70. 
 
 may be on fact, 72. 
 
 new warrant of arrest may be obtained, 71. 
 
 sale of vessel, 67. 
 
 security for costs in, 66. 
 
 time for, 66, 70. 
 
 transfer from Cinque Ports, 71. 
 
 when assessors summoned, 71. 
 
 AD3HRALTY CROSS APPEALS, 69.
 
 108 INDEX. 
 
 AFFIDAVITS, 
 
 cross-examination of persons making, 51. 
 
 generally, on, 51. 
 
 how should be intituled, 51. 
 
 leave to file after time limited, 51. 
 
 of unnecessary length, costs of, 51. 
 
 when should be confined to facts within own knowledge, 51. 
 
 when statements as to belief may be admitted, 51. 
 
 with applications under Crown Office Rules, 50. 
 
 "AGGRIEVED PERSONS," 
 
 definition of, in bankruptcy, 63. 
 Lord Justice James' definition of, 63. 
 
 AGREEMENT, 
 
 not to appeal under Act of 1856. .4. 
 Act of 1888.. 10. 
 
 AGRICULTURAL HOLDINGS ACT, 1883, 
 appeals under, 36. 
 
 AMENDMENT, 
 
 Appellate Court has all powers of, 52. 
 
 APPEAL, 
 
 against entry of verdict or nonsuit, 35. 
 
 new trial, new point of law may be taken on, 19. 
 agreement not to, under Act of 1888 . . 10. 
 allowed after extended jurisdiction, under Act of 1854. .3. 
 
 jurisdiction by consent, under Act of 1856. .3. 
 "amount" referred to is amount claimed, not adjudged, 30. 
 by case under Act of 1850 . . 2. 
 
 on point of law, or on admission, &c. of 
 
 evidence, 2. 
 
 Act of 1856 extended to replevin, recovery of tene- 
 ments, interpleader, and where jurisdiction by con- 
 sent, 3. 
 
 by infant's best friend, security for costs ordered if insolvent, 76. 
 by leave, under Act of 1867. .6. 
 
 by motion, applies to actions where leave to appeal is given, 44. 
 instead of case, 15. 
 under Act of 1875 . . 5. 
 cases in which there is none, 39. 
 Court of, jurisdiction of, 47. 
 
 powers of, tinder Act of 1850. .2. 
 Act of 1865.. 4. 
 Act of 1888.. 52. 
 does not stay proceedings, 76. 
 effect of death of party, 46. 
 extension of time for, 48.
 
 INDEX. 109 
 
 APPEAL continued. 
 
 for further and better interrogatories, 33. 
 
 from Divisional Court, in bankruptcy, application for should be made 
 
 at once, 65. 
 
 order to pay costs in administration suit, 77. 
 refusal to enter verdict, 33. 
 
 grant new trial, 33. 
 set aside non-suit, 48. 
 grounds of, should be given, 44. 
 
 in actions of ejectment and title, under Act of 1867. .5. 
 in bankruptcy, does not stay execution, 65. 
 
 must be by an aggrieved person, 64. 
 no leave required to appeal from decision of Divi- 
 sional Court on special case, 65. 
 omission to state grounds not a reason for dismissal, 65. 
 in contract, 30. 
 in ejectment, 30. 
 in interlocutory matters, 35. 
 in interpleader, 31. 
 in recovery of tenements, 3 1 . 
 in remitted actions, under Act of 1867. .5. 
 Act of 1888.. 8. 
 in replevin, 31. 
 in tort, 30. 
 
 judge's note must be furnished by appellant, 45. 
 lies from Divisional Court, without leave, in certiorari, 105. 
 refusal to grant certiorari, 104. 
 mandamus, 86. 
 prohibition, 94. 
 
 may be proper remedy when judge acts without jurisdiction, 35. 
 mode of, under Act of 1888 . . 11. 
 
 must be on law, not fact, in common law jurisdiction, 112. 
 none after agreement not to, under Act of 1856. .4. 
 consent not to, 41. 
 
 extended jurisdiction under Act of 1850. .2. 
 from garnishee order, 40. 
 
 refusal to hear witnesses, 40. 
 set aside award, 40. 
 order of committal, 39. 
 
 in interlocutory matters prior to Act of 1888 . . 36. 
 where judge performs functions of a jury, 13. 
 not affected by consent where title incidentally arises under Act of 
 
 1888.. 8. 
 
 jurisdiction by consent, under Act, of 1888. .8. 
 not precluded by calling evidence, 18. 
 notice for a day when Court not sitting, good . .48. 
 of motion should be given, 44. 
 
 to be lodged, 45. 
 should be served on local solicitor, 47.
 
 110 INDEX. 
 
 APPEAL- continued. 
 
 on matter of title, 30. 
 
 on point of law or equity, or admission, &c. of evidence under Act 
 
 of 1865.. 4. 
 procedure on, 42. 
 relating to evidence, 32. 
 
 rights of, under Act of 1888, tabulated, 10, 11. 
 security for costs of, not now required as of course, 76. 
 subjects of, 30. 
 time for, 47. 
 under Act of 1888.. 9. 
 
 general grounds of, 9. 
 
 limitations of, 9. 
 when waiver of right by guardian binding on infant, 47. 
 
 APPEALS, 
 
 by leave, 32. 
 
 by special Acts, 36. 
 
 cases considered, 33. 
 
 cost of, 73. 
 
 costs of, in equity, 74. 
 
 usually given to successful party, 73, 74. 
 when should be applied for, 74. 
 from County Courts, heard by Divisional Court, 45. 
 may be in formd pauperis, 45. 
 Ord. LVIII. applied to, 45. 
 placed in Crown paper, 45. 
 Divisional Courts, by leave, 55. 
 Mayor's Court, 58. 
 
 decision of Divisional Court in, is final, 59. 
 materials for, 59. 
 procedure in, 59. 
 should be by motion, 59. 
 
 in actions sent down for trial in County Courts, 56. 
 in Admiralty, 66. 
 
 amount of judgment, 67. 
 
 applications for enlargement of time, how made, 70. 
 counsel, how heard, 71. 
 cross appeals, 69. 
 
 effect of County Courts Act, 1888, on, 67. 
 evidence in, 68, 69. 
 fresh evidence in, 69. 
 from Divisional Courts, 71. 
 final decree, 66. 
 
 interlocutory decree (by leave), 66. 
 instrument of appeal, what is, 70. 
 interlocutory orders, 68. 
 judge's note, 68. 
 lie to Divisional Court, 69.
 
 INDEX. Ill 
 
 APPEALS continued. 
 
 in Admiralty continued. 
 
 may be by motion as well as by lodging instrument of 
 
 appeal, 70. 
 on fact, 12. 
 
 new warrant of arrest may be obtained, 70. 
 sale of vessel, 67. 
 security for costs in, 66. 
 time for, 66, 70. 
 transfer from Cinque Ports, 71. 
 when assessors summoned, 71. 
 in Bankruptcy, 61. 
 
 by leave only from consent orders, 61. 
 
 exercise of discretion by Court 
 
 below, 62. 
 
 orders as to costs, 61. 
 under 50?., 62. 
 
 decision of Divisional Court in, is final, 61. 
 judge's note in, 64. 
 lie to Divisional Court, 61. 
 notice to registrar, 62. 
 
 effect of omission, 62. 
 procedure in, 64. 
 security for costs, 62. 
 time for lodging, 62. 
 when leave required, 61. 
 in Equity, 32. 
 
 See JUDGE'S NOTE. 
 
 power of appellate Court over costs below, 75. 
 under Agricultural Holdings Act, 1883. .36. 
 Building Societies Act, 1874. .37. 
 Companies Act, 1867. .37. 
 Friendly Societies Act, 1875. .37. 
 Industrial, &c. Societies Act, 1862.. 38. 
 Rivers Pollution Act, 1876. .36. 
 Tithe Act, 1891.. 38. 
 
 APPELLATE COURT, 
 
 has all powers and duties of annulment of High Court, 52. 
 may direct service of notice of appeal, 52. 
 
 give damages to plaintiff wrongly non-suited below, 53. 
 
 order security for costs, 76. 
 
 receive further evidence, 52. 
 
 set aside judgment and order new trial, 53. 
 
 below and enter for other party, 53. 
 powers of, 51. 
 
 in appeals from Mayor's Court, 58. 
 reversal of judgment below, 53. 
 
 will not alter finding of judge on fact if supportable on evidence, 54. 
 verdict of jury if supportable on evidence, 64.
 
 112 INDEX. 
 
 APPELLATE JURISDICTION, 
 history of, 1 . 
 
 APPLICATIONS, 
 
 and motions, hearing, 50. 
 
 for costs in criminal information, 50. 
 
 new trials by motion for order nisi, 49. 
 
 security, how made, 50. 
 
 stay, how made, 50. 
 
 time, how made, 50. 
 
 in Admiralty, for enlargement of time, how made, 70. 
 to appear against decision of Divisional Court in bankruptcy, should 
 
 be made at once, 65. 
 
 to enter judgment non obstante veredicto by motion for order nisi, 49. 
 to file special case, 50. 
 to strike case out of Crown paper, 50. 
 to substitute new relator in quo warranto, 50. 
 
 ARREST JUDGMENT, 
 
 applications to, by motion for order i*i, 49. 
 in Mayor's Court, 34. 
 
 AWARD, 
 
 no appeal from refusal to set aside, 40. 
 
 BANKRUPTCY, 
 
 aggrieved person, a bill of sale holder, 64. 
 
 a debtor who has been refused a hearing, 64. 
 a trustee under deed whose title is affected, 64. 
 any creditor dissatisfied with decision regarding 
 
 proof, 64. 
 satisfying Court that order imposes 
 
 liability, though proof not in, 64. 
 satisfying Court that order takes 
 away something to which he is 
 entitled, 64. 
 any person applying to Court who has adverse 
 
 decision, 64. 
 
 objecting to appointment of trustee, 64 . 
 an unpaid creditor, 64. 
 
 assignees under, deed whose title is affected, 64. 
 appeals, application for leave to appeal against decision of Divisional 
 
 Court should be made at once, 65. 
 decision of Divisional Court in, is final, 61. 
 evidence in, 64. 
 in, 61. 
 
 in, do not stay execution, 65. 
 in, should state grounds, 6 1 .
 
 INDEX. 113 
 
 BANKRUPTCY continued. 
 appeals continued. 
 
 interlocutory orders in, 61. 
 
 judge's note in, 64. 
 
 leave not necessary to appeal against decision of Divisional 
 
 Court in special case, 65. 
 lie to Divisional Court, 61. 
 
 omission to state grounds is preliminary objection, 61. 
 when leave necessary, 61. 
 applications to annul adjudications, 63. 
 
 to rescind receiving order, 63. 
 definition of " aggrieved persons" in, 63. 
 
 " aggrieved persons " in decided cases, 64. 
 "Court of Appeal" in, 63. 
 "the Court" in, 63. 
 
 Lord Justice James' definition of " aggrieved persons " in, 63. 
 no appeal, except by leave, from exercise of discretion of Court 
 
 below, 62. 
 
 orders under 50?., 62. 
 
 omission of grounds of appeal not a reason for its dismissal, 65. 
 orders by consent appealable only by leave, 61. 
 as to costs, appealable only by leave, 61. 
 
 BUILDING SOCIETIES ACT, 1874, 
 appeals under, 37. 
 
 CASE, 
 
 appeal by, in Act of 1850. .2. 
 
 CERTIORARI, 
 
 appeal lies from Divisional Court without leave, 105. 
 
 refusal to grant, 104. 
 description of, 103. 
 discretionary, 103. 
 grounds of issue, 104. 
 Mayor's Court, 105. 
 not in itself a stay, 104. 
 practice after transfer, 105. 
 
 under County Courts Act, 1888. .103. 
 
 Crown Office Rules, 104. 
 writ may be absolute in first instance, 104. 
 
 CHANCERY ACTIONS, 
 
 transfer of, under Act of 1888 . . 8. 
 
 CINQUE PORTS, 
 
 transfer of appeals in Admiralty, 71. 
 C.
 
 114 IXDEX. 
 
 COMMITTAL, 
 
 appeal from an order of, 39. 
 
 COMPANIES ACT, 1867, 
 appeals under, 37. 
 
 CONDITIONAL 
 
 leave to appeal from Divisional Court may be given, 55. 
 
 CONSENT, 
 
 jurisdiction by, appeal allowel after, under Act of 1856. .3. 
 under Act of 1856.. 3. 
 Act of 1888.. 9. 
 
 not to appeal, no appeal after, 41. 
 what constitutes, 41. 
 
 CONSTRUCTION, 
 
 of specific enactments, 36. 
 
 CONTRACT, 
 
 appeal in, 30. 
 
 COSTS, 
 
 appeal from, in administration suit, 77. 
 
 High Court may order security for, 76. 
 
 in any event, disapproved, 75. 
 
 in criminal information, application for, 50. 
 
 in motions for new trials in Mayor's Court, 60. 
 
 in prohibition, 95. 
 
 in remitted actions, 75. 
 
 leave for second appeal may be given conditionally on security being 
 
 given, 55. 
 
 of affidavits of unnecessary length, 51. 
 of appeals, 73. 
 
 in Admiralty, 69. 
 in discretion of Court, 73. 
 in Equity, 74. 
 rule in Privy Council, 73. 
 
 security for, not now required as of course, 76. 
 usually awarded to successful party, 73, 74. 
 when should be applied for, 7 1 . 
 power of Appellate Court over costs below, 75. 
 reviewal of taxation of, is discretionary, 76. 
 security for, 46. 
 
 applications how made, 47. 
 from best friend of infant, 47. 
 in Admiralty appeals, 66. 
 in bankruptcy appeals, 62. 
 
 not usually ordered where leave to appeal is uncon- 
 ditional, 76. 
 ordered in appeal by infant's best friend if insolvent, 76.
 
 INDEX. Ho 
 
 COUNSEL, 
 
 how heard in Admiralty appeals, 71. 
 
 only one heard by Divisional Courts on appeals from inferior Courts, 
 
 50. 
 two are heard by Court of Appeal, 51. 
 
 " COURT OF APPEAL," 
 
 definition of, in bankruptcy, 63. 
 
 hears appeals from Liverpool Court of Passage, 70. 
 
 jurisdiction of, 47. 
 
 may give leave for second appeal, 55. 
 
 to appeal from Divisional Court in bankruptcy, 61. 
 powers of, under Act of 1850. .2. 
 Act of 1865.. 4. 
 Act of 1888.. 10. 
 
 " COURT, THE." 
 
 definition of, in bankruptcy, 63. 
 
 CRIMINAL INFORMATION, 
 
 application for costs in, 50. 
 
 CROSS APPEALS, 
 in Admiralty, 69. 
 respondent need not give notice of, 53. 
 
 CROSS-EXAMINATION 
 
 of persons making affidavits, 51. 
 
 CROWN PAPER, 
 
 appeals from County Courts placed in, 45. 
 application to accelerate case in, 50. 
 strike case out of, 50. 
 
 CROWN SIDE, 
 
 orders require leave, 50. 
 
 DEATH 
 
 of party to appeal, effect of, 46. 
 
 DIVISIONAL COURT, 
 
 appeal from, by leave, 55. 
 
 in Admiralty, 7 1 . 
 
 in prohibition, lies without leave, 96. 
 in bankruptcy lie to, 61. 
 lies from, without leave in certiorari, 105.
 
 11G INDEX. 
 
 DIVISIONAL COURT coiitinntd. 
 
 application for leave to appeal against decision of, in bankruptcy, 
 
 should be made at once, 6-5. 
 decision of, in appeals from Mayor's Court, is final, 59. 
 
 in bankruptcy appeals is final, 61. 
 in bankruptcy, leave to appeal may be given, 61. 
 leave necessary to appeal from decision of, 59. 
 may grant prohibition, 93. 
 
 EJECTMENT, 
 appeal in, 31. 
 
 ENTERING 
 
 verdicts and non-suits in Mayor's Court, 34. 
 
 EQUITABLE ACTIONS, 
 
 under Act of 1888, taken, 8. 
 
 EQUITY, 
 
 appeals in, 32. 
 
 may be on fact, 12. 
 costs of appeals in, 74. 
 
 not applicable to County Court appeals, 75. 
 jurisdiction in, under Act of 1865. .4. 
 
 EVIDENCE, 
 
 appeal relating to, 32. 
 Appellate Court may receive further, 52. 
 fresh, in Admiralty appeals, 69. 
 
 further, may be given without special leave in interlocutory appli- 
 cations, 52. 
 may be given without special leave on matters occurring after 
 
 decision appealed against, 52. 
 only admissible by special leave in appeals from judgments 
 
 after trial, 53. 
 in Admiralty appeals, 68. 
 in bankruptcy appeals, 64, 65. 
 
 EXTENSION 
 
 of jurisdiction under Act of 1850, no appeal after, 2. 
 Act of 1854, appeal allowed, 3. 
 of time for applying for new trial, 49. 
 
 to arrest judgment, 49. 
 
 to enter judgment, 49. 
 
 order granting must be served on other side, 50.
 
 INDEX. 117 
 
 FACT, 
 
 and law, when mixed, appeal allowed when view of law was clearly- 
 erroneous, 14. 
 no appeal, 13. 
 
 decision on, only reviewable by County Court, 17. 
 no appeal, in common law jurisdiction, 12. 
 what is, 13. 
 
 FRIENDLY SOCIETIES ACT, 1875, 
 appeals under, 37. 
 
 GARNISHEE ORDER, 
 
 as to appeal from, quaere, 40. 
 
 GROUNDS OF APPEAL, 
 
 in bankruptcy should be stated, 61. 
 should be given, 44. 
 
 HEARING 
 
 of motions and applications, 50. 
 
 HIGH COURT 
 
 may order security for costs, 76. 
 
 HISTORY 
 
 of appellate jurisdiction, 1. 
 
 INDUSTRIAL, &c. SOCIETIES ACT, 1862, 
 appeal under, 38. 
 
 INFANT, 
 
 appeal by next friend, security for costs ordered if insolvent, 76. 
 
 INSTRUMENT OF APPEAL, 
 in Admiralty, what is, 70. 
 
 INTERLOCUTORY MATTERS, 
 appeal in, 35. 
 
 INTERLOCUTORY ORDERS, 
 in bankruptcy appeals, 61. 
 
 INTERPLEADER, 
 
 appeal in, 31. 
 
 INTERROGATORIES, 
 
 appeal for further and better, 33.
 
 118 INDEX. 
 
 JUDGE'S NOTE, 
 
 absence of, should be explained, 21. 
 
 Acts of 1875 and 1888 compared, 20. 
 
 appellant must furnish, 45. 
 
 as to, in bankruptcy appeals, 64, 65. 
 
 cases on, considered, 22 et seq. 
 
 custom of City of London Court, 26. 
 
 general request for, not sufficient, 21. 
 
 in Admiralty appeals, 68. 
 
 may be compiled after the trial, 21. 
 
 dispensed with, 24. 
 object of, 16. 
 omission of point of law from, immaterial if clear that it was taken, 
 
 19. 
 production not a condition precedent to right of appeal, 21. 
 
 will generally be required, 20. 
 
 request for, must be at the trial or immediately after, 23. 
 not condition precedent to right of appeal, 21. 
 not essential, 16. 
 
 should be made after point of law arises, 22. 
 rules on procedure relating to, 20 22. 
 under Act of 1875.. 6. 
 Act of 1888.. 9. 
 
 Act of 1888. a copy for use at hearing of appeal, 10. 
 when insufficient, 22. 
 
 JUDGMENT, 
 
 application to arrest, by motion for order nisi, 49. 
 
 below, may be set aside, and entered for the other party, 53. 
 
 cannot be post-dated, 48. 
 
 non obstante vcredlcto, in Mayor's Court, 34. 
 
 of Mayor's Court, motion to set aside, 59. 
 
 pro forma, should not be given, 34. 
 
 reversal of, by Appellate Court, 53. 
 
 JURISDICTION, 
 
 after deduction by set-off, 3. 
 
 by consent, appeal allowed after, under Act of 1850. .3. 
 under Act of 1856.. 3. 
 
 Act of 1888, appeal not affected by, 8. 
 Act of 1888.. 9. 
 
 equitable, under Act of 1888 . .8. 
 extension of, under Act of 1850. . 2. 
 
 Act of 1850, no appeal allowed, 2. 
 Act of 1854, appeal allowed, 3. 
 in ejectment and title, under Act of 1888. .7, 9. 
 in equity, under Act of 1865. ,4. 
 of Court of Appeal, 47.
 
 INDEX. 119 
 
 JURISDICTION continued. 
 under Act of 1846.. 1. 
 Act of 1850.. 2. 
 Act of 1888.. 7. 
 
 Act of 1888, after reduction by set-off, 7. 
 
 when judge acts without, remedy may be by appeal as well as by 
 prohibition, 35. 
 
 JUROR, 
 
 withdrawal of, when no objection to new trial, 50. 
 and subsequent dissent, 34. 
 
 LAW, 
 
 new point of, may be taken on appeal against new trial, 19. 
 point of, must be taken at trial, 15. 
 
 LEAVE, 
 
 appeals by, 32. 
 
 conditional, to appeal from Divisional Court, may be given, 65. 
 for second appeals, may be given by Court of Appeal, 55. 
 not required for second appeal in prohibition, 56. 
 
 to appeal against decision of Divisional Court in bank- 
 ruptcy on special case, 65. 
 
 to appeal, security for costs not usually ordered where uncon- 
 ditional, 76. 
 
 LIVERPOOL COURT OF PASSAGE, 
 
 appeals from, lie to Court of Appeal, 70. 
 
 LOCAL SOLICITOR, 
 
 should be served with notice of appeal, 47. 
 
 LODGING 
 
 notice of motion, 45. 
 
 LONDON AGENT, 
 
 service of notice of appeal on, not sufficient, 48. 
 
 MANDAMUS, 
 
 action of, 86. 
 
 a right in the nature of specific performance, 86. 
 appeal lies against refusal to grant, 85. 
 appearance of officials unnecessary, 83. 
 circumstances in which granted, 79. 
 
 Court must have power to enforce, 80. 
 duty must be positive, 81. 
 public, 80.
 
 120 INDEX. 
 
 MANDAMUS eontinued. 
 
 circumstances in which granted continued. 
 must be prior refusal, 81. 
 no other remedy, 79. 
 
 unless more tedious, 80. 
 not to undo something, 82. 
 refusal to exercise judicial functions, 81. 
 specific legal right, 79. 
 to insure justice, 80. 
 description of, 78. 
 motion for, on affidavit, 84. 
 only granted by Queen's Bench Division, 79. 
 Ord. LVIII. applied to proceedings in, 45. ' 
 order substituted for writ against inferior Courts, 85. 
 orders of R. S. C. applying to, 84. 
 prerogative and statutable writs compared, 86. 
 writ, described, 83. 
 
 origin, 78. 
 
 procedure under Crown Office Rules, 83. 
 service of order nisi, 84. 
 
 special procedure under Municipal Corporations Act, 1882. .83. 
 the statutable writ, 84. 
 
 how obtained, 85. 
 writ may be peremptory, 84. 
 
 MATERIAL 
 
 for appeals, 20 et seq. 
 
 See APPEALS ; JUDGE'S NOTE. 
 
 MAYOR'S COURT, 
 appeals from, 58. 
 
 procedure in, 59. 
 
 costs in motions for new trial, &c., 60. 
 entering verdicts and non-suits in, 34. 
 is an inferior Court, 58. 
 judgment non obstante veredicto in, 34. 
 
 leave to set aside judgment for misdirection, not necessary, 59. 
 materials for appeals from, 59. 
 motion for new trial, 60. 
 
 to set aside judgment, &c., 59. 
 
 verdict, 59. 
 
 new trials in, 34, 35, 58. 
 non-suit, motion to set aside, 59. 
 procedure when new trials ordered, 60. 
 prohibition against attachment, 91. 
 
 \\ithouthavingpleaded, 91. 
 security in appeals from, 58. 
 
 MIS-DIRECTION, 
 
 notice of motion should staff 1m w, I ,'>.
 
 INDEX. 121 
 
 MOTIONS, 
 
 affidavits for use with, 50. 
 
 and applications, hearing, 50. 
 
 appeal by, applies to actions where leave is given, 44. 
 
 under Act of 1875 . . 6. 
 appeals by, in Admiralty, 70. 
 notice of, should be given, 44. . 
 to discharge order, 52. 
 
 NEW TRIAL, 
 
 Appellate Court may set aside judgment and order, 53. 
 
 applications for, how time runs, 49. 
 
 applied for, by motion for order nisi, 49. 
 
 in Mayor's Court, 34, 58. 
 
 notice of motion should state grounds of misdirection, 46. 
 
 procedure in, Mayor's Court, 60. 
 
 proper, when verdict unreasonable, 19. 
 
 refusal to grant, appeal from, 33. 
 
 under Act of 1888. .33, 34. 
 
 when will not be granted, 34, 35. 
 
 NON OBSTANTE VEREDICTO, 
 
 applications to enter judgment, by motion for order nisi, 49. 
 
 NON-SUIT, 
 
 appeal from refusal, to set aside, 48. 
 
 by Appellate Court, after judgment entered for plaintiff in Court 
 
 below, 53. 
 
 or entry of verdict, appeal against, 35. 
 plaintiff has a right to, 73. 
 
 NOTE. See JUDGE'S NOTE. 
 
 NOTICE OF APPEAL, 
 
 Appellate Court may direct service of, 52. 
 service of, 47. 
 
 NOTICE OF MOTION, 
 
 for a day when Court not sitting, good, 48. 
 on ground of misdirection, 45. 
 should be given, 44. 
 
 ORDER LVIII., 52. 
 
 applicable " to County Court appeals so far as practicable," 53. 
 applied to appeals from County Courts, 45. 
 rules 12, 13, 16.. 65.
 
 122 INDEX. 
 
 ORDER LIX., 42 et seq. 
 
 ORDERS, 
 
 on Crown side require leave, 50. 
 
 PARTY, 
 
 to appeal, death of, 46. 
 
 POWERS, 
 
 of Appellate Court, 51. 
 
 PRACTICE, 
 
 in particular Courts cannot modify general Rules, 51. 
 
 PRESUMPTION, 
 
 that judge's conclusion of fact was right, 13. 
 
 PRIVY COUNCIL, 
 
 rule as to costs of appeals, 73. 
 
 PROCEDURE, 
 on appeal, 42. 
 
 PROHIBITION, 
 
 against attachment "of garnishee in Mayor's Court, 91. 
 
 Mayor's Court without pleading, 95. 
 appeal from Divisional Court lies without leave, 96. 
 
 lies from refusal to grant, 94. 
 cases (e.g) in which, has been granted, 96 100. 
 refused, 100102. 
 Coke on, 88. 
 costs in, 95. 
 
 Court of Chancery has jurisdiction to grant, 95. 
 Divisional Court or judge may grant, 93. 
 effect of acquiescence, 89. 
 
 from Petty Bag Office, judge may set aside, 95. 
 grounds on which granted, 91. 
 
 upon which asked for should be similar, 95. 
 how applied for, 93. 
 
 latent or patent want of jurisdiction, 89. 
 Master cannot grant, 93. 
 may be absolute or hoc usque, 92. 
 no leave required for second appeal, 56. 
 not a stay of proceedings, 93. 
 
 not necessarily the only remedy when judge acts without juris- 
 diction, 35. 
 object of, 88. 
 obtaining special case not acquiescence, 96.
 
 INDEX. 123 
 
 PROHIBITION con tinned. 
 
 order may be made absolute ex parte in certain circumstances, 93. 
 
 Orders of Supreme Court applied to, 94. 
 
 Ord. LVIII. applied to proceedings in, 45. 
 
 pleadings in, 95. 
 
 practice in vacation, 94. 
 
 proceedings in High Court cannot be restrained by, 94. 
 
 registrar in Probate, Divorce and Admiralty Division cannot grant, 
 
 93. 
 
 right to grant, not exclusively in Queen's Bench Division, 95. 
 under County Courts Act, 1888. .93. 
 whether discretionary, or as of right, 89. 
 without having pleaded in Mayor's Court, 91. 
 
 QUO WARRANTO, 
 
 application to substitute new relator, 50. 
 Ord. LVIII. applied to proceedings in, 45. 
 
 RECEIVING OEDEE, 
 
 application to rescind, 63. 
 
 REGULATION 
 
 of 18th February, 1890, in bankruptcy appeals, 61. 
 
 EEHEAEING-, 
 
 all appeals come before Appellate Court by way of, 52. 
 
 EELATOE, 
 
 application to substitute new relator, 50. 
 
 EEMITTED ACTIONS, 
 
 costs of, 75. 
 under Act of 1867.. 5. 
 Act of 1888.. 8. 
 
 become County Court actions, 8. 
 
 EEPLEVIN, 
 
 appeal in, 31. 
 
 EIVEES POLLUTION ACT, 1876, 
 appeals under, 36. 
 
 EULES 
 
 cannot be modified by particular practice, 51.
 
 124 INDEX. 
 
 SECURITY, 
 
 application for, how made, 50. 
 for costs, 46. 
 
 in Admiralty appeals, 66. 
 in bankruptcy appeals, 62. 
 may be ordered, 76. 
 
 not usually ordered where leave to appeal is uncon- 
 ditional, 76. 
 of appeal in Mayor's Court, 58. 
 
 not now required as of course, 76. 
 
 ordered in appeal by infant's best friend if insolvent, 76. 
 when extension of time allowed, 76. 
 leave for second appeal may be conditional on lodgment of, 55. 
 
 SERVICE 
 
 of notice of appeal, 47. 
 
 SET-OFF, 
 
 jurisdiction after reduction by, 3. 
 
 under Act of 1888, after reduction by, 7. 
 
 SPECIAL APPEALS, 36. 
 
 Agricultural Holdings Act, 1883 . . 36. 
 Building Societies Act, 1874.. 37. 
 Companies Act, 1867. .37. 
 Friendly Societies Act, 1875. . 37. 
 Industrial, &c. Societies Act, 1862.. 38. 
 Rivers Pollution Act, 1876.. 36. 
 Tithe Act, 1891.. 33. 
 
 SPECIAL CASE, 
 
 application to file, 50. 
 
 SPECIFIC ENACTMENTS, 
 
 construction of, 36. 
 
 STAY, 
 
 appeal does not operate as, 76. 
 applications for, how made, 50. 
 certiorari not in itself, 104. 
 
 STRIKE 
 
 case out of Crown paper, application to, 50. 
 
 TAXATION 
 
 of costs, reviewal of is discretionary, 76. 
 
 TENEMENTS, 
 
 recovery of, appeal in, 31.
 
 INDEX. 125 
 
 TIME, 
 
 applications for, how made, 50. 
 extension of, for appealing, 48. 
 
 applying for new trials, 49. 
 
 to arrest judgment, 49. 
 to enter judgment, 49. 
 for appealing, 47. 
 for appeals in Admiralty, 66, 70. 
 for applications for costs in criminal information, 50. 
 enlargement, 50. 
 security, 50. 
 time, 50. 
 
 to file special case, 50. 
 to strike case out of Crown paper, 50. 
 to substitute new relator in quo warranto, 50. 
 applying for new trials, 49. 
 
 to accelerate a case in Crown paper, 60. 
 to arrest judgment, 49. 
 to enter judgment, 49. 
 
 giving security for costs, extension, when allowed, 76. 
 lodging appeals in bankruptcy, 62. 
 leave to file affidavits after time limited, 51. 
 
 no distinction between applications for, before or after judgment, 48. 
 objection that appeal out of, should be made after notice, 65. 
 
 TITHE ACT, 1891, 
 appeals under, 38. 
 
 TITLE, 
 
 appeal in matters of, 31. 
 
 TORT, 
 
 appeal in, 30. 
 
 TRANSFER 
 
 of Chancery actions under Act of 1888. .8. 
 
 of equitable actions to Chancery Division under Act of 1888. .8. 
 
 VERDICT, 
 
 refusal to enter, appeal from, 33. 
 
 WARRANT 
 
 of arrest, new, in Admiralty appeals, 71. 
 
 WITHDRAWAL 
 
 of juror, when no objection to new trial, 50. 
 
 WITNESSES, 
 
 no appeal from refusal to hear, 40.
 
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 Rattigan's Private International Law. By SIR W. H. 
 
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 Innes' Digest of the Law of Easements. Fifth Edition. 
 
 By L. C. INNES, lately one of the Judges of Her Majesty's High Court of Judica- 
 ture, Madras. Royal \'2.mo. 1895. Price Is. 6d. cloth. 
 
 Pollock's Principles of Contract. Sixth Edition. By SIR 
 
 FREDERICK POLLOCK, Bart., Barrister-at-Law. 8vo. 1894. Price 28s. cloth. 
 
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 Sir FREDERICK POLLOCK, Bart. Demy 8vo. 1895. Price 21s. cloth. 
 
 Pollock's Digest of the Law of Partnership ; incorporat- 
 ing the Partnership Act, i890. Sixth Edition. By Sir FREDERICK POLLOCK, 
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 Temperley's Merchant Shipping Act, 1894. With an 
 
 Introduction ; Notes, including all Cases decided under the former enactments 
 consolidated in this Act ; a Comparative Table of Sections of the Former and Present 
 Acts; an Appendix of Rules, Regulations, Forms, <Scc., and a Copious index. By 
 
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