Mr. W. Y. Devanvox, on behalf of the defendant, on Tuesday last, made an application upon a sunnnons for taxation of costs in the above named suit in which Mr. A. Ronrxsox was for the plaintif® who had obtained leave for a rehearing. Assistant Judge Jamieson, having at the hearing of the ease refused to entertain Mr. Drammond's application, it thereupon came before the Chief Justice and was argued very fully, judgment being reserved,
said His Loxosiar in delivering judgment 'A summons has been taken out in this case calling upon the plaintiff to show cause why the: costs of the defendant, who was successful on the hearing of the suit before the Assistant Judge—should not be taxed. It appears that the defendant's counsel has already applied to the Acting Assistant Judge as taxing master to enter upon the taxation and that he has refused to do so on the ground that there has been virtually a stay of proceeding, the suit in consequence of the pla having claimed a rehearing before the Chief Justice and Assistant Judge under the Provisions of Section 48.8. (4) of the Order in Council 1878 and a day having Been appointed for the rehearing the learned counsel for the defendant now contends that the pending rehearing is in the nature of an appeal and has cited divers authorities to show that proceedings on appeal are no stay of proceedings without a special order to that effect being made. The learned counsel for the plaintiff says that a rehearing is not an appeal, and claims, as I understand him, that a robi ing within the meaning of the Order in Council is in point of fact equivalent to, a new trial and that on such rehearing the whole ease should be gone into de note; but he does not contend that proceedings in appeal are, without special order to that effect, a stay of proceedings.
Tt becomes necessary then for me to consider what is the meaning of the word "rehearing" as employed in_ section 4, S.S. (4) of the Order in Council. The Section says that any party to a suit in proceeding wherein any matter is heard and determined by the Assistant Judge shall be entitled as of course to a rehearing before the Chief Justice sitting with the Assistant Judge or in the unavoidable absence of the Assistant Judge, alone." In the case of In re St. Nazaire Company, L.R. Eh. Div. XII 88, the Court of Appeal expressly decided that under the system of Procedure established by the Judicature Act, no Judge of the High Court has any jurisdiction to rehear an order whether made by himself or by any other Judge, the power to rehear being part of the Appellate Jurisdiction which is transferred ly the Acts to the Court of Appeal; and from the judgment in that case J have been enabled to ascertain very clearly the history and nature of rehearings in the courts at home. It would appear that rehearings were a special features in the former Chan-cory jurisdiction and unknown at Common Law. Thesiger L.J. at page 101 says "Whatever may have been the practice in the High Court of Chancery before the Judicature Act, as to the review of these decisions or the rehearing of their decisions, nothing can be clearer than that there was
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