1868.

T.

BAKER.

on the 18th November he received the draft bond duly approved by the Registrar. On the 19th, in compliance WATERTON with and in the form set forth in the Schedule to the Rules and Orders for regulating the Practice of the County Courts, he sent through the post to the plaintiff's attorney a notice in writing of his proposed sureties; and on the 24th he wrote to him requesting him to return the draft case and inquiring whether he was satisfied with the proposed sureties. On the 28th he received an answer making some inquiries respecting the proposed sureties and stating that he had drawn a fresh case which would be forwarded to the claimant. Immediately on the receipt of this the claimant answered the inquiries respecting the sureties; and on the 13th December he received from the plaintiff's attorney the copy of the original draft case and another which the plaintiff's attorney had prepared, with a letter requesting him to forward both to the Judge to settle a case thereupon, which he accordingly did.

On the 17th January, 1867, the claimant received notice from the Registrar to execute before him a bond as approved by him on the 21st, which notice also provided that if the plaintiff's attorney should have any valid objection to make to the sureties it was to be made then; and that notice was served upon the plaintiff's attorney. On the 21st the claimant attended with his sureties before the Registrar, who approved of them, and the bond was executed; but the plaintiff's attorney did not attend. On the same day the claimant received from the Registrar the draft case as settled by the Judge, and on the 23rd it was set down for argument,

1868.

WATERTON

V.

BAKER.

and notice thereof with a copy of the case was sent to the plaintiff's attorney.

Codd, in support of the application.-By stat. 13 & 14 Vict. c. 61. s. 14. an appeal is given to a party dissatisfied with the determination or direction of the County Court in point of law, "provided that such party shall, within ten days after such determination or direction, give notice of such appeal to the other party, or his attorney, and also give security, to be approved by the clerk of the Court, for the costs of the appeal," &c. The giving of such security is a condition precedent to the hearing of the appeal; Stone, appt., Dean, respt. (a), Norris, appt., Carrington, respt. (b).

The Court granted a rule nisi.

Keane and Joyce shewed cause in the first instance.— In Stone, appt., Dean, respt. (a), and Norris, appt., Carrington, respt. (b), the appellant had not taken any step within the ten days. Here the claimant did all that he could to comply with stat. 13 & 14 Vict. c. 61. s. 14., and the delay was occasioned by the opposite party. In Mayor, appt., Harding, respt. (c), a strict compliance with stat. 20 & 21 Vict. c. 43. s. 2., which enacts that on appeal from a decision of justices the appellant "shall within three days after receiving such case" transmit the same to the Court, was held to be not necessary. [Mellor J. [Mellor J. There it was impossible for the appellant to do more than he did, for the offices

(a) E. B. & E. 504.

(b) 16 C. B. N. S. 10.

(c) 16 L. T. N. S. 429.

of the Court were closed during the Easter holidays (a).] [He also cited Andrews v. Elliott (b).]

(a) In re MAYOR, appellant, HARDING, respondent.

By stat. 20 & 21 Vict. c. 43. s. 2. a party appealing from the determination of justices shall, within three days after receiving the case, transmit it to the superior Court. A case was received by the appellant on Good Friday, who transmitted it to the Court on the following Wednesday. Held that, the offices of the Court being closed until Wednesday, the case was duly transmitted.

1868.

WATERTON

V.

BAKER.

[Saturday, May 11th, 1867.]

20 & 21 Vict.

c. 43. s. 2. Transmission of case to

MCMAHON obtained a rule nisi to strike out of the Crown paper superior Court.

a case of Mayor, appellant, Harding, respondent, stated for the opinion of this Court under stat. 20 & 21 Vict. c. 43. s. 2., on the ground that the provisions of the statute had not been complied with. The appellant, being convicted by certain justices for Newcastle under Lyne, applied for a case. The case stated and signed by the justices was received by the attorney for the appellant on Good Friday, and was sent to London on the following day. But Good Friday and Easter Eve, as well as Monday and Tuesday in Easter week, being observed as holidays in the offices of the Courts (c), it was not lodged with the officer of this Court until Wednesday in Easter week.

Kenealy shewed cause.-Stat. 20 & 21 Vict. c. 43. s. 2. gives an appeal from the determination of justices, and directs that the party having applied to the justices to state a case for the opinion of one of the superior Courts "shall, within three days after receiving such case, transmit the same to the Court." Here it was impossible to transmit the case within the three days, for the offices were closed till Wednesday. -He cited Reg. v. Allan (d), Syred, appt., Carruthers, respt. (e), Woodhouse, appt., Woods, respt. (f), per Blackburn J.; Morgan, appt., Edwards, respt. (g), per Channell B., and was then stopped.

McMahon, in support of the rule.-The transmission of the case within three days is a condition precedent, and if not complied with

(c) See stat. 3 & 4 W. 4. c. 42. s. 43. and R. G. H. T. 6 W. 4 (4 A. & E. 743).

(d) 4 B. & S. 915.

(e) E. B. & E. 469.

(f) 29 L. J. M. C. 149. 150; 6 Jur. N. S. 421, 422.

(g) 5 H. & N. 415. 419.

(b) 5 E. & B. 502.

1868.

WATERTON

V.

ВАКЕВ.

By rule 134 of The Rules and Orders for regulating the Practice of the County Courts, &c., 1857, made in

the Court has no jurisdiction to hear the case. [He cited Bac. Abr. Conditions (M).] [Mellor J. Where literal performance of a statutory condition is possible, the Court has no discretion to dispense with it. In Fisher v. Cox (a), the day before yesterday, we held that a Judge had no more power to make an order in the teeth of the statute for the resealing of a writ which had been allowed to run out than it would have to order the date of an original writ to be altered, and we set aside the writ.] [He cited Reg. v. Peacock (b), Pennell, appt., The Churchwardens of Uxbridge, respts. (c), Morgan, appt.. Edwards, respt. (d).] [Mellor J. Stat. 13 & 14 Car. 2. c. 12. s. 2. gives an appeal against an order to the next Sessions, and the Courts have held next Sessions to mean next practically possible, in order that the appellant might have the possibility of exercising his right. See Reg. v. The Justices of Sussex, in error (e).]

MELLOR J. As regards the conduct of the parties, the transmission of the case within three days, and the giving notice of appeal, may be conditions precedent which they could not waive by consent, but they are not conditions precedent to the jurisdiction of the Court to hear the appeal. Also, where a statute imposes a condition precedent, it must be strictly adhered to; but if an enactment is directory only, the Court may relax it. Here the jurisdiction of the Court attaches on the case being stated. And stat. 20 & 21 Vict. c. 43. s. 2. must mean that the case should be transmitted within three practicable days, just as in stat. 13 & 14 Car. 2. c. 12. s. 2. the next Sessions means the next practicable Sessions. In the present case none of the three were practicable days. When compliance with an enactment is impossible, as in this instance by reason of the offices of the Courts being closed, we should be straining the words if we deprived the party of his right to appeal by reason of his not having done what was impossible.

(ƒ) See In re Banks, appt., Goodman, respt., 3 B. § §. 548, pl. 2.

pursuance of stat. 19 & 20 Vict. c. 108. s. 32. (see Pollock's Practice of the County Courts, Appendix to Part 1, p. 84, 4th ed.), "In all cases, where a party proposes to give a bond by way of security, he shall serve, by post, or otherwise, on the opposite party and the Registrar, at his office, notice of the proposed sureties in the forms set forth in the Schedule, and the Registrar shall forthwith give notice to both parties of the day and hour on which he proposes that the bond shall be executed, and shall state in the notice to the obligee that should he have any valid objection to make to the sureties, or either of them, it must then be made." The Registrar would not make an appointment for the execution of the bond until he had approved the sureties, and that might happen to be not within the ten days.

Codd, in support of the rule.-Rule 134 of The Rules and Orders for regulating the Practice of the County Courts, &c., 1857, is to be read as part of stat. 13 & 14 Vict. c. 61. and does not repeal sect. 14; therefore the security must be given and approved by the Registrar within ten days. In Morgan, appt., Edwards, respt. (a), it was held that, under stat. 20 & 21 Vict. c. 43. s. 2., the giving notice of appeal with a copy of the case to the respondent within three days was a condition precedent to the right of the appellant to have the case heard (6).

COCKBURN C. J. This rule must be discharged. It is enacted by sect. 14 of stat. 13 & 14 Vict. c. 61., that where a party intends to appeal from the decision of the Judge of the County Court he shall, within ten

(a) 5 H. & N. 415.

(b) See Chapman v. Robinson, 1 E. § E. 25.

1868..

WATERTON

V.

BAKER.