Appealing reserved. No appeal where new trial ordered. party decided against may appeal without the leave of the Court, while on where point the other hand, when a new trial is applied for, the party dec ded against can only appeal in the cases provided for by the next section. An appeal lies under the present section from the decision of the Court in an interpleader issue (Green v. Letterkenny Railway Co., Ir. R. 3 C. L. 160.) Where leave is reserved to reduce or to increase the amount of a verdict, an appeal may be brought from the decision of the Court (Seeger v Duthie, 8 C. B. N. S. 72; Hodgman v. West Midland Railway Co.. 5 B. & S. 173). Where the Court in place of entering a verdict or nonsuit directs a new trial (see ante. p. 314), no appeal lies under this section (Bristow v. Reynolds, 2 Jur. N. S. 790; Abbott v. Feary, 6 H. & N. 113). Where the rule for a new trial dropped in consequence of the Judges being equally divided in opinion, it was held that the party who obtained the rule might appeal (Leri v. Green, 4 Jur. N. S. 86). It is not necessary it would appear, in order to give a right of appeal that the order should be made absolute in the terms in which it was granted (Gether v. Capper, 18 C. B. 866). Practice as to appealing. Appeal upon rule discharged or absolute. 17 & 18 Vict. c. 125, s. 35. Appealing where motion for a new trial. When a party appeals under this section, his first step is to serve the notice of appeal prescribed by sect. 43. Having served notice of appeal, the next step is to state a case as provided by sect. 45. When the case is stated it will have to be printed, and a sufficient number of copies lodged in the office of the clerk of the errors, after which the cause will be set down in its turn. As to appealing from the refusal of the Court below to grant a conditional order, see sect. 46, post; as to the superseding of execution, sect. 44; as to the judgment to be given by the Court of Appeal, sect. 47; and as to the costs of the appeal, sect. 48. A suggestion of error and an appeal under this section may be argued together (Wheelton v. Hardisty, 8 E. & B. 232). 41. In all cases of motions for a new trial upon the ground that the Judge has not ruled according to law, if the rule to show cause be refused, or if granted be then discharged or made absolute, the party decided against may appeal (g), provided any one of the Judges dissent from the rule being refused, or, when granted, being discharged or made absolute, as the case may be, or, provided the Court in its discretion think fit that an appeal should be allowed (h); provided, that where the application for a new trial is upon matter of discretion only, as on the ground that the verdict was against the weight of evidence or otherwise, no such appeal shall be allowed (i). (g) See the note to the last section. As to giving leave to appeal upon a point which was not discussed below, see Seed v. Higginson, 8 H. L. Cas. 550. Where the Court below in the exercise of its discretion has declined to grant a new trial, the Court of Appeal will not in general exercise a counter-discretion (Gibson v. Doeg, 7 L. T. N. 871). (h) It is not necessary to serve notice of the application for liberty to appeal (O'Reilly v. Richardson, 17 Ir. C. L. R. 86). where the (See O'Neill v. Bell, Ir. R. 2 C. L. 74. No appeal lies question before the Court is as to the propriety of an amendment the Judge at the trial (Ward v. M`Kelvey, 7 Ir. Jur. N. S. 409). right to appeal in consequence of an alleged non-direction upon a question of fact, see Holden v. Merdach, 27 L. J. Ex. 27. An allegation in the Court of Error that the verdict at the trial was, upon the whole, unsatisfactory, is not a ground for disturbing the verdict of the Court below (Hayes v. Dexter, 13 Ir. C. L. R. 22). Where a rule nisi was granted to enter a verdict upon a point reserved, and also for a new trial, on the ground of the verdict being against the weight of evidence, the Court deferred the argument of the latter part of the rule until the first part of it was finally disposed of by the Court of Appeal (Betts v. Menzies, 28 L. J. Q. B. 361, 11 W. R. 88). As to restraining a party from proceeding with a new trial pending an appeal from the order of the Court awarding it, see ante, p. 112. of Appeal. 42. The Court of Exchequer Chamber and the House of As to Courts Lords shall be Courts of Appeal for the purposes of this 17 & 18 Vict." Act. c. 125, s. 36. Appeal. 17 & 18 Vict. c. 125, s. 37. 43. No appeal shall be allowed unless notice thereof be Notice of given in writing to the opposite party or his attorney, and to the Master of the Court, within four days after the decision complained of, or such further time as may be allowed by the Court or a Judge (j). (j) The Court will be slow in extending the time within which notice of appeal is to be served (Norris v. Lawder, 8 Ir. C. L. R. Ap. 47; Kelner v. Baxter, L. R. 2 C. P. 174); and sufficient reason should not merely be shown to account for the default, but it should also be shown that had the Court possessed a discretionary power originally to allow the appeal, it would have been exercised in favour of the appellant (Watson v. Lane, 25 L. J. Ex. 240). As instances of cases where the Court has enlarged the time for appealing, see Ward v. Lumley, 5 H. & N. 656; Montgomery v. Middleton, 8 Ir. Jur. N. S. 93. Leave to appeal may be given after the expiration of the period of four days prescribed above (Ward v. Lumley, ubi supra). Extending time for ser vice of notice of appeal. 17 & 18 Vict. 44. Notice of appeal shall be a stay of execution, provided Bail. bail to pay the sum recovered and costs, or to pay costs where c. 125, s. 35. the appellant was plaintiff below, be given, in like manner and to the same amount as bail in error, within eight days after the decision complained of, or before execution delivered to the sheriff (k). (k) See ante, p. 202; where see also as to the practice in reference to bail in error, and as to compelling a party appealing to give security for costs. As to Form of ap- Settling case. Rule nisi granted on appeal, how disposed of. 17 & 18 Vict. paying out to the party who has succeeded in the Court below money lodged in Court, see Greene v. The Letterkenny Railway Co., Ir. R. 3 C. L. 160. 45. The appeal hereinbefore mentioned shall be upon a case to be stated by the parties (and in case of difference, to be settled by the Court or a Judge of the Court appealed from), in which case shall be set forth so much of the pleadings, evidence, and the ruling or judgment objected to, as may be necessary to raise the question for the decision of the Court of Appeal (1). (1) When the parties differ as to the form of the case, it must be settled by the Court or a Judge of the Court. If the party appealing is guilty of default in making up the books, the opposite party may, it appears, apply for leave to mark final judgment (Hunt v. Allgood, 3 F. & F. 155). 46. When the appeal is from the refusal of the Court below to grant a rule to show cause, and the Court of Appeal grant such rule, such rule shall be argued and disposed of in the c. 125, s. 40. Court of Appeal (m.) Appeal where conditional order refused. Court of Appeal to give Judgment of 17 & 18 Vict. Powers of Court of Appeal as to Costs and otherwise. 17 (m) In such cases notice of appeal must be served, and a case stated as in other cases of appeal. According to the practice in England, where the Court below has refused to grant a rule nisi for a new trial, or to enter a verdict upon leave reserved, and there is an appeal against such refusal to the Court of Exchequer Chamber, that Court will grant a rule nisi, if they think fit to do so, against which cause must be shown in the first instance, only one counsel being heard on each side (Kingsford v. Merry, 1 H. & N. 503). 47. The Court of Appeal shall give such judgment as ought to have been given in the Court below; and all such further proceedings may be taken thereupon as if the judgment had been given by the Court in which the record originated (n). (n) See sect. 178 of the Common Law Procedure Act, 1853. 48. The Court of Appeal shall have power to adjudge payment of costs (o), and to order restitution (p), and they shall have the same powers as the Court in which the record origi& 18 Vict. c. nated in respect of awarding process and otherwise. 125, s. 42. (0) By the preceding section it is provided that the Court of Appeal shall give such judgment as the Court below should have given; and, therefore, as regards the costs of the trial and new trial motion, the Court of Appeal must award them as the Court below should have awarded them. As regards the costs of the appeal, the appellant, if successful, is not, as a general rule, entitled to them, and the only costs to which he is entitled are such costs as should have been awarded to him below (Young v. Moeller, 6 & El. Bl. 681, and see sect. 50, post). If, on the other hand, the appellant fails, he is liable for the costs of the appeal (Barker v. Windle, 6 El. & Bl. 675). In Walker v. Bartlett, 2 Jur. N. S. 643, it was held that the rule with regard to costs under the present enactment is the same as in cases in error, as to which see post, in the Appendix, p. xlviii. If the Court of Appeal is equally divided, the decision of the Court below stands. As to the costs in such a case, see Dansey v. Richardson, 3 El. & Bl. 722. (p) The powers of the Court of Appeal as to awarding restitution are Restitution. more extensive than those possessed by the Court of Error. See ante, p. 206, note (b). 49. Upon an award of a trial de novo by any one of the superior courts, or the Court of Exchequer Chamber, upon matter appearing on the record, error may at once be brought; and if the judgment in such or any other case be affirmed in error, it shall be lawful for the Court of Error to adjudge costs to the defendant in error (9). (7) The present section was passed for the purpose of removing doubts which formerly existed as to whether error could be brought upon an award of a venire de novo. Error upon award of trial de novo. 17 & is Vict. c. 125. costs upon 50. When a new trial is granted on the ground that the Payment of verdict was against evidence, the costs of the first trial new trial on shall abide the event, unless the Court shall otherwise fact, 17 & 18 order (r). matter of Vict.c. 125, s. 44. Costs of trial where ver dict against () The present section provides only for cases where the new trial has been granted on the grounds of the verdict being against the weight of evidence. In such cases, if the order of the Court is silent as to costs, and evidence. if the party successful at the first trial succeeds upon the second trial also, he is entitled to the costs of both trials. If, however, the party ultimately successful has failed upon the first trial, he is not, where the order is silent, entitled to the costs of the first trial, notwithstanding that the words of the above section would seem to warrant a different conclusion (Wallis v. Great Southern and Western Railway Company, Ir. R. 4 C. L. 81; Evans v. Robinson, 11 Ex. 40). Where a new trial is obtained on the ground of mis- Where misdirection, or for a mistake on the part of the Judge, the rule is different, and the party ultimately successful is entitled to the costs of both trials, the first trial being regarded as abortive (Powell v. Atlantic Steam Company, 7 Ir. Jur. N. S. 118; Pilson v. Johnson, 6 Ir. C. L. R. 509; Sinclair v. Burnett, 1 Ir. L. R. 46. direction. Court. The costs, however, in cases where a new trial is sought for, are in the dis- In the discretion of the Court, and the order usually provides expressly for them. Cretion of the Thus, where the new trial is granted on the ground of the verdict being against the weight of evidence, the order occasionally provides that each Costs of the motion. Power to Judge to di rect oral examination of witnesses. 17 & 18 Vict. c. 125, s. 46, Compelling attendance of witness. party shall abide his own costs of the former trial (Parker v. Cathcart, 11 Ir. Jur. N. S. 49; Doolan v. Gorman, 6 Ir. Jur. N. S. 366), or the question of costs is reserved (Green v. Handcock, Ir. R. 4 C. L. 295). Formerly it appears that the general rule was that a party could only set aside a verdict as being against the weight of evidence, in cases where the conduct of the jury was not impeached, upon the terms of paying the costs of the first trial (Dutch v. Power, Ir. R. 1 C. L. 192, 206); and in such cases the payment of costs was a condition precedent to proceeding to another trial (Nicholis v. Bozon, 13 East, 185); and see further Thomson v. Millar, Ir. R. 1 C. L. 90, in which case a new trial was granted upon the same terms, the grounds upon which it was granted being that the jury might have been misled by the Judge's charge Where a conditional order for a new trial is made absolute, if the absolute order is silent as to costs, the costs of the motion will be costs in the cause for the party obtaining the absolute order (Bewley on Costs, p. 80). The costs are, however, in the discretion of the Court (Daly v. Colbert, 3 Ir. L. R. 355). The costs of resisting an unsuccessful application for a new trial are costs in the cause (Eyre v. Thorpe, 6 Dowl. 768), unless the order is made after judgment, when, if the order be silent as to costs, neither party is entitled to them (Newton v. Boodle, 4 C. B. 359). Where, upon a motion for a new trial, the plaintiff consents to a reduction of the damages, and the order is consequently not made absolute, neither party pays to the other the costsof the motion Hussey v. Metropolitan Railway Company, 20 L. T. N. S. 612). When the Court are equally divided in opinion upon the motion to show cause against a conditional order for a new trial, and the conditional order consequently drops, neither party is entitled to the costs of the motion (Dansey v. Richardson, 23 L. J. Q. B. 361). The costs of motions to enter a verdict or nonsuit, pursuant to leave reserved, follow the same rules as those of motions for a new trial, and are, generally speaking, costs in the cause. They are, however, in the discretion of the Court (Daly v. Colbert, ubi supra). 51. Upon the hearing of any motion it shall be lawful for the Court or Judge, at their or his discretion, and upon such terms as they or he may think reasonable, from time to time to order such documents as they or he may think fit to be produced, and such witnesses as they or he may think necessary to appear, and be examined riva voce, either before such Court or Judge, or before the master, and upon hearing such evidence, or reading the report of such master, to make such rule or order as may be just (s). (s) An arbitrator may, under this section, be ordered to attend before the master to be examined as to when he had extended the time for making his award, he having refused to make an affidavit (Roberts v. Evans, 34 L. J. Q. B. 7). As to compelling a witness to a deed of submission to arbitration to prove the execution of the submission, see Nugent v. Lowe, Bl. D. & O. 220. |