APPEL.—DELAI

CONSEIL PRIVÉ, 29 novembre 1836.

By petition, from the Court of Appeals for the province of Lower Canada.

AUGUSTIN GADIOUX ST-LouiIs and PIERRE BENJAMIN Dt- MOULIN, appellants, and ANTOINE GADIOUX ST-Louis, FREDERICK BETTEZ and DAME MARIE GADIOUX Sr- Louis, his wife, ANTOINE GADIOUX S'Tr-Louis, the younger, and JOSEPH GADIOUX ST-LOUIS, widower, respondents.

Application to dismiss an appeal, on the ground of delay in prosecution, and no certificate being filed, pursuant to the 31st sect. of the Canada Judicature A ct, refused, the rule allowing a year and a day for prosecuting an appeal, though usually adhered to, not being imperative upon the King in Council, and respondents having no claim to complain of delay, after laying by themselves eight months without making anv application.

This was an application on the part of respondents, for the dismissal of the appeal, under the following cireumstances. On the 30th september, 1833, judgment in the Court of King's Bench for the district of Three-Rivers, in the province of Lower Canada, was given, dismissing an action that had been brought by respondents against Augustin Gadioux

St-Lo object contra the ri and f the ri they w feelino appeal Canad revers costs, within of the the lan situatic canal v chiche Appeal:

costs, à Court 0 the rei Lecielis Judicat “all ça “ Court “ Majest “after “judgm the sam “'appeal “tion sl “day on “ration “’appeal, “ certific “ provin “ Counci “by him “ ceeding Privy ( “in the “ months “Judgme “ment in “executi “any lan

l’aunari, tant t lui t en donc te la relle peut n est iblic, n du perte cales

de la

that dioux

St-Louis, and in which P. B. Dumoulin had intervened, the object of which action was, that a canal which had been cut, contrary to the prohibition of respondents, from a point of the river Yamachiche, above a certain grist-mill and cu:ding and fulling-mill of theirs, might be ordered to be closed, and the river and premises restored to the same condition that they were in, before ‘he making of the canal. Respondents, feeling themselves aggrieved by this judgment and order. appealed therefrom to the Court of Appeals for Lower Canada, and, on the 30th April, 1834, the Court of Appeals reversed the judginent of the Court of King's Bench, with costs, and ordered the appellant, Augustin G. St-Louis, within 15 days after the service and signitication of a copy of the judgment, to fill up and close the canal, and to restore the lands through which the canal had been cut to the same situation and condition in which they were before the said canal was commenced, so that the waters of the river Yamachiche might run in their natural course : and the Court of Appeals dismissed the intervention of P. B. Dumoulin with costs, and also ordered the record to be remitted to the Court of King's Bench. By an Act made in the 34th year of the reign of his late Majesty, King George the Third, by the Legislature of the province of Lower Canada, called “The Judicature Act,” it is, by the 32nd section, enacted : “ That in “all cases where an appeal is by law allowed, from the “ Court of Appeals for the province of Lower Canada to His “ Majesty in Council, no appeal shall be granted or allowed “after the expiration of one year from the date of the “ judgment of the Court of Appeals.” By the 31st section of the same Act, it is enacted : “That in all cases where an “appeal shall be allowed to His Majesty in Council, exe- “tion shall be suspended for 15 calendar months from the “day on which such appeal is allowed, and from the expi- “ration of that period to the final determination of the said “appeal, if before the expiration of the said 15 months a “certificate shall be filed in the Court of Appeals of the “province, signed by the clerk of His Majesty's Privy “ Council, or his deputy, or any other person duly authorized “by him, that such appeal has been lolged, and that pro- “ecedings have been had thereon before His Majesty in His “ Privy Council ; and if no certiticate be produced and filed “in the Provincial Court of Appeals within the said 15 “months, the said appeal shall not longer operate as stay of : judgment and execution, but the party who obtained judg- “ment in the said Provincial Court of Appeals may sue out “execution, as if no such appeal had been made or allowed, “any law, usage or custom'to the contrary notwithstanding.”

On the said 30th day of April, 1834, appellants applied for leave to appeal from the said judgment of the said Court of Appeals, when permission was granted to them upon the condition of their giving security that they would etfectually prosecute their appeal to His Majesty in Council ; and, in default of their so doing, it was ordered that the record should be remitted to the Court of King's Bench. Appellants gave the usual and proper securities to prosecute the appeul, but did not proceed to lodge their petition until the 24th july, 1835, nearly 15 months after the allowance of the appeal, and did not file in the Court of Appeals such certificate as is required by the 31st section of the above Act within the 15 months thereby limited, nor had they since taken any further proceedings to prosecute the appeal, or lodged their printed case. On the 15th march, 1836, espondents presented a petition to have the appeal dismissed, on the ground of the delay in the prosecution thereof, and the certiticate not having been filed in the Court of Appels, within 15 months from the allowance of the appeal, pursuant to the Judicature Act. The case stood over by consent of respondents, to allow time for appellants to obtain information from Canada. On the part of appellants, an affidavit was filed by their agent, Alexander Gordon, who, after stating that he presented the original petition of appeal in july, 1834, and afterwards obtained the proper certificate of its being lodged, which he immediately caused to be transnitted in duplicate to appellants in Lower Canada, proceeded to state that he had been inforned by a letter from Pierre Benjamin Dumoulin, that an application was some time since made on behalf of respondents to the Court of Appeals in Lower Canada, that the cause should be remitted to the Court below, and that execution should issue as if no appeal had been made, or allowed upon the wround of the certificate not having been lodged within 15 months from the allowance of the appeal. But that Dumoulin succeeded in satisfying the Court of Appeals that the delay complained of had been occasioned by the Judges of the said Court having detained the papers in the cause for some months after the heuring, whereby the official copy of the judgment could not be obtained, and that the Court thereupon discharged the application of respondents with costs, as appeared by the official copy of the order then made annexed to his affidavit. He also stated that the delay in prosecuting the appeal in this country had arisen in consequence of the necessary funds for that purpose not having yet arrived, though he was in expectation of their being furnished in a few weeks.

CoztmaN, K. C., and RENSHAW, for respondents, insisted

that a] three 1 of the accord precluc appeul aited G vs Arn

Wii

applica

Baro this Co not im} hunself no clair ciently Their 1 refused,

(1\ The Wilson vs

St. Jan pleased, b this Comn vince of L ment in t vince of petitioner:

town of Q} judygment, vince of L reversed t] the record made in t]l Third, by has been enacted, t} of Appeuls Council, n year from Wilson dic wards afte permission such perm upon cond appeal to ordered th that Willie effectually all such co:

Privy Cour or to lodge judgment « Council, un

| for rt of | the aally id, in acor(| lants ypeul, 24th f the | cer- » Act since al, or , 168issed, F, and peuls, , purnsent intoriduvit after eal in ate of tr'anseeded Pierre since

ppeal ficate Wance g the

been

that appellants having neglected to bring their appeal until three months after the time prescribed by the 32nd section of the Judicature Act, and not having filed a certificate in accordance with the 31st section of the same Act, were precluded from their right to present or prosecute the appeal ; and that the same ought to he dismissed. They ated Gordon vs Lowther, 2 Lord Raymond, 1447, and Wilson vs Arnold (1).

WiIGHTMAN, for appellants, objected to the application of respondents, relying on the merits disclosed in affidavit of Alexander Gordon, and the delay in making the present application.

Baron PARKE : The rule limiting the period of appeal in this Court to à year and à day, though usually adhered to, is not imperative. The party complaining of delay should not hinself lie by and be guilty of delay; if he does so, he has no claim to be heard here. The affidavit of Gordon sufficiently accounts for the certificate not having been filed. Their Lordships are of opinion that this application must be refused, and dismiss the petition. (1 Moore’s P. C. R., 143).

(1) The following is a copy of the report and order made in the case of Wilson vs Arnold, referred to by respondent’s counsel :

St. James’, 3 december, 1832. Present, etc. : Your Majesty having been pleased, by your Order in Council of the Ist of august last, to refer unto this Committee the humble petition of George Arnold, of Quebec, in the province of Lower Canada, setting forth that on the 20th of february 1528, judgment in the Court of King's Bench, for the district of Quebec, in the province of Lower Canada, was obtained by one William Wilson, against petitioner, for the recovery of a certain lot of ground situate in the lower town of Quebec aforesaid ; that petitioner felt himself aggrieved by the said judgment, and appealed therefrom to the Court of Appeals for the said province of Lower Canada, and, on the 27th of July, 1829, the Court of Appeals reversed the judgment of the Court of King's Bench, with costs, and ordered the record to be remitted to the Court of King's Bench ; that by an act duly made in the 34th year of the reign of his late Majesty King George the Third, by the Legislature of the said province of Lower Canada, which act has been generally called ‘The Judicature Act,” it is by the 32nd section enacted, that in all cases where an appeal is by law allowed from the Court of Appeals for the province of Lower Canada to His Majesty in his Privy Council, no appeal shall be granted or allowed after the expiration of one year from the date of the judgment of the Court of Appeals ; that William Wilson did not apply to the Court of Appeals until eight months and upwards after the judgment of the Court of Appeals had been pronounced, for permission to appeal from their judgment to Your Majesty in Council, and such permission was granted to him on or about the 30th of April, 1830, upon condition of his giving security that he would effectually prosecute his appeal to Your Majesty in Council, and in default of his so doing, it was ordered that the record should be remitted to the Court of Kings Bench; that William Wilson gave the usual and proper securities that he would effectually prosecute his said appeal, and answer the condemnation, and pay all such costs and damages as should be awarded by Your Majesty in your Privy Council; that William Wilson did not proceed to prosecute his appeal, or to lodge his petition and appeal to Your Majesty in Council from the judgment of the Court of Aupsute with the clerk of Your Majesty’s Privy Council, until, as hereinafter mentioned, nearly two years after the allowance