On appeal from the Sudder Dewanny Adawlut, Bengal
In circumstances showing and opposite decisions by the Sudder Court upon the sme question at issue between the sme parties, an appeal treated under the Statute, 8th & 9th Vict., c. 30, Section 2, as abandoned for non prosecution was restored upon terns of paying costs and undertaking to lodge cases forth with, and to lodge cases to lodge security or a Bond in Eng to the amount of 5001. Where an appeal has been treated as abandoned by Statute, 8th, 9th Vict. c. 30, Section 2, their Lordships have no power to grant leave to institute a new appeal : only a discretion to allow the original appeal to be restored. [Para ] This was a petition to restore, or, in the alternative, to admit a fresh appeal, which had been treated as abandoned, under Statute, 8th & 9th Vict., c. 30, section 2, for non-prosecution within two years. The petition stated that leave to appeal to England had been granted by the Sudder Court on the 18th of January, 1848, and that the transcript of the proceedings arrived and was registered at the Council Office on the 7th of November, 1850. That an agent had been appointed in England in the month of May, 1852, and that the agent attended at the Council Office on the 24th of that month, with a view of proceeding with the appeal, and was informed that the Respondent had appointed agents in this country on his behalf, and that he immediately put himself in communication with them to join with him in paying half the expense of printing, when the Respondent's agents informed him that they had no remittances from India to enable them to do so, but promised to join when they received sufficient remittances. That the Appellant's agent in consequence delayed taking a copy of the transcript proceedings till the 3rd of February, 1853. That the Sudder Dewanny Adawlut of Bengal, on the 12th of May, 1856, in another suit in which the same question was raised between the same parties, had held, regarding the family usage as to the division of the Raj in dispute, directly in opposition to their decree made in the suit now appealed. That on learning the result of this decision, the Appellant's agent prepared the transcript for printing in the month of January, 1857, when he became aware for the first time, that on the 24th of December previously, the appeal had been treated as abandoned within the provisions of the Statute, 8th & 9th Vict., c. 30, section 2. That the Appellant was desirous of prosecuting the appeal and bringing the same to a hearing, and that the delay was caused by no willful intention, and the Petitioner prayed that the appeal might be restored or that special leave to appeal against the judgment of the Sudder Dewanny Adawlut might be allowed to the Appellant. Mr. Wigram, Q.C., in support of the petition. Asked for an order for special leave to appeal. - [The Right Hon. Dr. Lushington: I very much doubt if the appeal is not lost, under the Statute, 8th & 9th Vict., c. 30, section 2, or that it can have been intended that their Lordships should have power to grant leave to institute a new appeal. It is a question of great difficulty. The real question is one of restoration, not of granting leave to appeal.] The object of that Statute was to remedy the mischief which existed of allowing appeals to stand over for an indefinite time. It is an inherent right in the Crown to permit appeals at any time.--[The Right Hon. Lord Wensleydale: The Statute meant that the appeal should be finally put an end to, not that there should be a fresh power to appeal.] Mr. Leith opposed, Submitting that conditions ought to be imposed, if the application was granted, for the due prosecution of the appeal.