An important decision holding that an appeal lies against an interlocutory judgment in H. M. Supreme Court, was given by His Honour Judge Sir Skinner Turner and Mr. Peter Graio (Assistant Judge) at the resumed hearing on Tuesday.
In granting leave to appeal against the order, Sir Skinner Turner said that Mr. Reader Harris, for respondents, took the preliminary objection that no appeal lay in such a matter; at{ all events, it did not without leave of the Court, which had never been sought until then, He argued that the only appeal to the Full Court was that provided by the China Order-in-Council of 1907, Art. 11, and that there" fore it was necessary to go to the practice in England to get the right to any such appeal at all. He stated further that in England appeals in matters of practice and' procedure were only heard in the Court of Appeal when leave thereto had been given, also that the present application of the appellants for leave was now tog late. Mr. Wing, for appellants, argued that he had a right off appeal under the Court rules, and asked for an extension off time to enable him now to apply) foe any leave that he might require.
"The question is a new one for the Court," Sir Skinner Turner proceeded. "It is regular practi ice for interlocutory orders to ba made in actions in this Court by a Judge sitting either in chambers or in court. Clear provision is made for that in the rules. No express provision is made fon appeal from any such. Article 11 of the Order in Council of 1907 only deals with certain appeals. Rule 315 authorizes me to look in matters of practice and procedure to the practice and procedure of the High Court and other Courts in England, and apply it as far as circumstances admit. I find that from alli Courts in England an appeal is allowed from these interlocutory orders. Such orders are madd in England in the High Court by! a Master with an appeal to the Judge in chambers and further appeal by leave to the Court off Appeal. In the County Courts they are made by the Judge with an appeal to the Divisiona) Court and again by leave to the Court of Appeal.
"It seems to me that, following the Home practice as far as I can, an appeal on such a matter must lie here from a Judge court or in chambers, to thd only appeal court here—the Full Court. I am faced with a further, difficulty now: within what time should such an appeal be presented—none is expressly pro vided here? I cannot follow any Home practice. From the County Courts at Home such an appeak must be entered within 21 days of the order complained of; in the High Court an appeal fron! a. Master to a Judge in chambers is within five days, and from the Judge in chambers to the Court! of Appeal 14 days. It is not fon me to say that in these matters this Court sitting as the Full Court is exercising the powers off a Judge in chambers, of a. Divisional Court, or of a Court off Appeal in England, but holding, as I do, that there is a right of! appeal to this Court in these matters, it seems to me that I can only, until special provision is made by the Rules of Court. adopt the only period of time allowed in our own rules, and while adopting the Home practice as far as circumstances admit, at the same time adopt our own period of time Jaid down fon other appeals, namely, and month. This appeal thereford lies and was brought within the time allowed."
In a_ speech lasting over an hour and half, Mr. Tycho Wing sec forth the grounds of his appeal, which were mainly that a firm suing on a contract must bring the action in the name off all the parties thereto. He also set forth a preliminary objection that defendant, having made no objection to the summons on tha return day, could not later, as he had done, take out a summons to set aside the proceedings.
The objection was overruled and their Lordships dismissed the appeal, with costs.
Text read from the printed page and cleaned; old type leaves the occasional error.