COURT OF APPEAL. Friday, 3rd April, 1857.

Daily Southern Cross, Volume XIV, Issue 1020, 7 April 1857, Page 2

COURT OF APPEAL. Friday, 3rd April, 1857.

Present : His Excellency the Governor, Col. Wynyard, Mr. Stafford (Cotonkl Secretary), Mr. Richmond (Colonel Treasurer). In re Oumsby v. Oic*sby. Mr. Bracey appeared for the respondent ani Mr. Meinman for the appellant. Mr. Richmond informed counsel that the Court would adopt the rules of the Privy Council so far as they were applicable ; one, for instance, was unnecessary ; viz., that which required printed cases. The Court would decide, from time to time, as to the precise limitation of the general rule they now laid down. Another matter was security for the costs of appeal; that must be settled at once. He would ask whether the appellant was prepared to give securities, within three days, for the costs of appeal ; and to abide by the decision of the Court. Also, whether the appellant was prepared with the record. Mr. Merriman stated that the appellant was prepared with securities ; they had been offered to the Judge and refused by him ; he (Mr. M.) would give them on the following day. Mr. Richmond. -It would not be possible for the Court to hear the cause argued that day ; the Court doubted its own jurisdiction, and, in order to save time and expense, the Court would wish the counsel for the appellant to speak to the question of jurisdiction at once ; independently of the record. Mr. Merriman came prepared to argue in answer, but not to initiate the question ; if he was called upon to open that question he should ask for an adjournment. Mr. Richmond.— The Court calls upon the appellant to open the case by proving the jurisdiction of the Court. The Court entertained a strong antecedent impression against its jurisdiction. If the appellant was not prepared to proceed, the Court would give time, and would make some remarks for the guidance of counsel. Mr. Bracey came prepared to deny the jurisdiction of the Court ; he was willing to proceed at once on that question. Mr. Merriman would wish the case postponed till tomorrow. Mr. Bracey excepted to the jurisdiction of the Court, and submitted that the appellant had no right to appeal ; that is ;— under the 3rd sec. of the Ordinance—" On an appeal from any judgment of the Supreme Court, upon the veidict of 12 men, (which this was), the Court of Appeals cannot enquire into the same, except only for error of law apparent on the recoid." Now, where was the error of law on this award ? for that was substantially the verdict and the record. Another question arose ; has this Ordinance ever received her Majesty's sanction ? which would be necessary on the erection of a law court possessing such superior powers. It was expressly provided by clause 3 of the Royal Instructions accompanying the Charter of 1846, that " Neither the Governor in Council nor the Governor shall assent to any law for the erection of any new office without our consent first had for the same." And, if such Ordinance were valid, it was declared by sec 3, *' That it was to be in force until there should be a sufficient number of Judges within the colony to constitute a Court of Appeal." Had the words been these— that until the Ist of July, 1850, this Ondnance should be in force, it is oleir that on thit diy arriving the Ordinance would cease to be in operation, — for, on the Ist of July, 1850, there were three Judges in the colony — a sufficient number to constitute an appeal. But the question was set at rest by the 14th and 15th Vic , Cap. 83, by which " two Judges, called the Lord* Justices of the Court of Appeals in Chancery, and the Lord Chan, cellor, are constituted a Court of Appeal, and its powers may be exercised not only by its full body, but by either of its Judges together with the Lord Chancellor ; or by both Judges apart from the Lord Chancellor." i Mr Richmond.— The Court, on other grounds— there j was a strong case in the Houße of Lords — doubted its

urisdiction. To save time and cost to the parties, the Court would state the nature of the Tery grave doubt which, upon the statements of the Petition, the Court entertained as to its jurisdiction in this case, doubts quite independent of any which might arise as to the securities being duly periected. In this case it was, by consent, ordered in the Court below that the jury should find a verdict for the plaintiff for £251 16s. 4a. damage, subject to the awatd ol arbitrators to be up'pointrd, as in the order is prescribed, with liberty to enter * verdict for the defendant. On the 16th February last that order was varied, also by consent, and the reference wsts directed to the umpire, already appointed under the former order, with certain special directions. On the 2nd of March the umpire made his award that the verdict Already entered up should stand, but that the damages should be reduced to £220 14s. 10yd. Subsequently, application was nude for a rule to shew cause vrhy the award should not be set aside-— which rule was refused. Of thia refusal the appellant complains, and seeks to renew here his unsuccessful application in the Court below. On these facts the Court is strongly disposed to think the appeal is incompetent — since what is complained of is, not an order of the Supreme Court, but the award of the umpire. Ai to orders of Court, under which the reference was made, it appears plain there can be no appeal as they were made on consent. The present would not be considered a format sitting of the Court, and if the appellant's counsel intended to proceed, counsel would be at liberty, at the next sitting of the Court, to bring forward arguments in support of the jurisdiction of the Court It remained for the appellant to decide whether he would proceed or not on the appeal. After some few remarks from counsel the Court rose.