tive allegation, the Court permitted it to be brought in, reserving the consideration as to its admission to the hearing of the cause. The party brought in the allegation accordingly, but appealed from such suspension of its admission. The respondent appeared under protest to the appeal, alleging that the appellant, by bringing in the exceptive allegation, subject, as alleged,

come an alien enemy, and may prosecute an appeal from a cordemnation thereof, as being entitled to the property of such alien enemy. The Charlotte, Avery, 1 Dodson, 214. 22. On an appeal from the condemnation of a ship and cargo (Government stores) in a Vice-Admiralty Court, in which Court a claim had been given by the owner of the ship for the vessel, and by the Government for the cargo, the former of whom had ac-to the condition that the question as to its quiesced in the sentence: Held that the admission should be reserved to the hearCrown was entitled to prosecute an appeal ing, had perempted his right of appeal. from such condemnation both as to ship The protest was overruled; but on the and cargo, as the ship must share the fate merits, the decree of the Court below reof the cargo. The Swift, Begbie, 1 Dod- serving the question as to the admission of son, 322. 345. the allegation, was affirmed, the party having a right to appeal if, at the hearing, the plea should be improperly rejected. Wargent v. Hollings, 4 Hagg. (Eccl.) 246.

23. The Crown has no greater right than the subject to be let in to appeal in a general case in which its interests are concerned. Laing v. Ingham, 3 Moore, 26.

3. How affected by Contempt in the

Court below.

24. An appearance under protest to an inhibition, on the ground that the appellant, being in contempt in the Court below, had no right to appeal, overruled, the Court holding the contempt to have been waived in the Court below, where, after the writ de contumace had been extracted against the appellant, a decree to see proceedings had been taken out, and the proctor of the party acknowledged that his client had received a copy thereof, which allegation was duly recorded in the Court book. Harrison v. Sparrow, 3 Curteis, 1.

25. Quare, Whether a party in contempt has a right of appeal. Ibid.

See post, No. 30.

4. By what Acts perempted-et contra. 26. Praying a Judge to rescind any order perempts any appeal afterwards from that order. Greg v. Greg, 2 Add. 276.

30. A party having appeared at the commencement of a hearing and prayed for a decree, afterwards withdrew from the further hearing, in consequence of the rejection of his witness and the refusal of the Judge to suspend the hearing until the appeal from the rejection of such witness should have been determined, and in order not to perempt such appeal, upon which the hearing was continued and concluded and judgment given in pain of his contumacy, he having been thrice called and not appearing: Held that such conduct could not be considered as a contumacy disentitling the party to the benefit of an appeal, and protest against an appeal on such grounds overruled accordingly. Handley and Jones v. Edwards, 8 Jur. 679.

V. OF PROCEEDINGS IN THE COURT BELOW
PENDING AN APPEAL.

1. Generally.

31. The Court is not legally bound to defer to an appeal till an inhibition is served. Middleton v. Middleton, 2 Hagg. (Eccl.) 138., Supp. in notis.

27. If a party does acts in furtherance of a sentence, viz. attending the taxation 32. In appeals, at least for grievances, of costs, he bars his right of appeal. Lloyd the hands of the Court are in no case tied and Clarke v. Poole, 3 Hagg. (Eccl.) 482. up until the service of the inhibition; and 28. The appellants who had contended what, or whether any, intermediate steps in Court against a condemnation in costs should be taken, depends upon the particular in the principal cause from the decision in circumstances of the case, the Judge of the which they had appealed, no mention Court a quo exercising a sound legal dishaving at such time been made of the in-cretion thereon. Chichester v. Donegal, terposition of any appeal: Held to have thereby perempted their right of appeal. Protest against such appeal sustained ac cordingly. The Clifton, Lightbody, 3 Hagg.

125.

29. A party having tendered an excep

1 Add. 21.

33. Where a party has duly appealed, the Judge a quo cannot limit the time for the prosecution of the appeal. Rookes v. Rookes, 2 Curteis, 350.

34. An application, on behalf of the pro

ducents, to suspend the hearing of a cause | ing; but, on application of the appellants pending an appeal from the rejection, in for an attachment for non-compliance with the course of the hearing, of the evidence such second monition, Held, that such nonof the drawer and one of the subscribed witnesses to the will, rejected, the rejection of such evidence being held by the Court not to be an appealable grievance, the whole hearing of the cause constituting but one act. The hearing was accordingly continued, and judgment given in the absence of the producents. Handley and Jones v. Edwards, 1 Curteis, 754.

35. An attentat, in the language of the civil and canon laws, is any thing whatsoever wrongfully innovated or attempted in the suit by the Judge a quo pending an appeal; but steps taken by the Judge a quo after appeal entered, on the same Court day, and on a subsequent Court day, prior to the issue of the inhibition (and even after the issue and service of the inhibition, if the appellant be not founded in his appeal, but not otherwise), are not attentats. Chichester v. Donegal, 1 Add. 23.

2. After Inhibition served.

36. An inhibition, in an appeal by some salvors, does not bar the Court from proceeding to put other distinct salvors, who have not appealed, in possession of the salvage amount awarded them (the only ground of appeal taken being the amount awarded), unless it can be shown that such acts of the Court could prejudice the appellant; nor from granting a decree of appraisement. H. M. S. Thetis, 3 Hagg.

98. 100.

37. In an appeal from a decision of a Vice-Admiralty Court, condemning a vessel for a forfeiture, after inhibition had been personally served on the Judge and Registrar of the Court below, the respondent, and other parties, the Judge of the Court below, on motion and affidavits that the ship was deteriorating in value, decreed a sale of the ship. A monition thereupon issued from the Court of Appeal for the transmission of the proceeds of sale, to which a return was made transmitting the same, less the amount of the costs of the Crown and the fees of the Judge, Registrar, and Marshal. A further monition was thereupon applied for and obtained for the transmission of the proceeds retained by the Court below, to which a special return was made, praying, for the reasons therein set forth, that the question as to the transmission of such proceeds retained might be reserved until the hear

compliance was a contempt, and an attachment decreed accordingly against the Judge, Registrar, and others of the Court below, upon which such proceeds retained were afterwards transmitted. Barton and others v. The Queen (The Winwick), 2 Moore, 19.

38. An inhibition to the Judge of a ViceAdmiralty Court, inhibiting him from doing any thing to the prejudice of the parties appellant pending their appeal, is not to be disregarded at his discretion, although he may consider that he is acting for the benefit of all parties. Barton v. Field (The Winwick), 4 Moore, 273., 8 Jur. 113.

39. It is not sufficient, for the purpose of visiting a Judge of an inferior Court with the penal consequences of an attachment for contempt of the appellate jurisdiction for disregarding an inhibition, to show that he may have committed an error of judgment; but it must be satisfactorily proved not only that there was error, but that such error was wilful, and proceeded from corrupt or improper motives. Ibid.

40. A vessel was condemned in the ViceAdmiralty Court of Gibraltar as engaged in the slave trade, from which sentence an appeal was interposed to the Queen in Council, and an inhibition under seal of the Judicial Committee of the Privy Council duly served on the Judge of the Court below and the other parties; after which, on application of the seizor, the Judge of the Court below, on affidavit of the perishable condition of the vessel, decreed a sale of the ship, notwithstanding the inhibition. On application to the Court of Appeal for an attachment against the Judge for costs and damages incurred thereby, the Court granted a rule to show cause; whereupon an act on petition was entered into by both parties, supported by affidavits, upon the hearing of which the Judicial Committee were of opinion that, under the circumstances, the decree of sale was not such a contempt as to entitle the appellants to the attachment prayed. Application refused accordingly. but without costs. Ibid.

41. Semble, that an inhibition does not remain in force so as to prevent the inferior Court from proceeding on the same, and also on additional facts in a subsequent suit, the original suit having been dismissed in the Court of Appeal by consent of parties. Smyth v. Smyth, 4 Hagg. (Eccl.) 72.

42. By 6 & 7 Vict. c. 38. s. 11. in all appeals from the Vice-Admiralty Courts of the Cape of Good Hope, and all ViceAdmiralty Courts to the westward thereof, the appeal and petition of reference to Her Majesty must be lodged in the Registry of the High Court of Admiralty and Appeals within twelve months from the pronouncing of the order or decree appealed from, and in all appeals from the ViceAdmiralty Courts to the eastward of the Cape of Good Hope within eighteen months.

See ante, No. 19.

43. The High Court of Admiralty (prior to the 6 & 7 Vict. c. 38.) would not construe the limitation of time for appeals, from Vice-Admiralty Courts in the West Indies, with the same strictness as would be applied to appeals from Courts of this country, the stat. of Hen. 8. then regulating the time of appeals being held not to extend to the plantations, and the Court being therefore left to its discretion as to entertaining appeals therefrom. The Sally, Joy, 2 C. Rob. 229.

44. Protest to an appeal (prior to the 6 & 7 Vict. c. 38.) from a Vice-Admiralty Court, on the ground that the appeal had not been prosecuted within a year, overruled. Ibid. 224.

Courts of Admiralty that where there is 47. It is an established principle of an appeal the property in question cannot be withdrawn but upon security given for the value. The Woodbridge, Munnings, 1 Hagg. 76.

charter party brought into the registry of 48. Money and interest due under a a Vice-Admiralty Court, pursuant to decree, to abide the order of that Court, perbeing given to answer the appeal. The mitted, on appeal, to be paid out, on bail Elizabeth, Lisboa, 1 Hagg. 226.

See antè, No. 36, 37. 40.

3. As to desertion and abandonment of.

49. A sentence of desertion is the proper remedy of the respondent when an appeal is not duly prosecuted. Failing to put in practice that protection he cannot claim it at the hearing of the cause. San Juan, Nepomuceno, 1 Hagg. 267.

The

50. In a suit on a charter party in the Vice-Admiralty Court of the Cape of Good Hope, where a protest to the jurisdiction of the Court given by the charterers had been overruled, with costs, after which the charterers brought in, pursuant to the decree of the Court, the money and interest due on the charter party, and prayed leave to appeal to the High Court of Admiralty, the appeal not having been duly prosecuted, motion, to decree the appeal to be deserted with costs, granted. The Elizabeth, Lisboa, 1 Hagg. 226.

45. Motion (prior to the 6 & 7 Vict. c. 38.), on behalf of a mariner, for leave to enter an appeal in a suit for wages, from a decree of the Vice-Admiralty Court at the Cape of Good Hope eighteen months previously, on the ground that the Court there had pronounced for wages only up to the time of freight being earned, and not on the return voyage up to the time of wreck; and that the mariner had been thereby compelled to seek employment, and had only just returned to London: rejected, 51. The Court of Appeal only can prothe circumstances laid being held to be in-nounce an appeal deserted. Rookes v. sufficient to authorize such permission, and Rookes, 2 Curteis, 350. the owners and underwriters having settled the whole accounts. The Mary, Ardlie, 2 Hagg. 27.

46. An appeal from an award of salvage by magistrates, pursuant to 1 & 2 Geo. 4. c. 75., to the High Court of Admiralty, as permitted by such statute, dismissed, on the ground of notice thereof not having been given within ten days after the making of the award as prescribed by the statute. Respondents appearing under protest, dismissed, with 4l. nomine expensarum. Semble, that verbal notice to the

52. On an appeal from a decision of the High Court of Admiralty in a cause of damage, after the usual proceedings had been taken in the Court of Appeal (the Judicial Committee of the Privy Council) and the cause assigned for hearing, the proctor of the appellants exhibited a proxy, and declared his parties proceeded no further in the appeal; upon which their Lordships, on motion of an advocate, remitted the cause, and condemned the appellants in costs. Brownlow and others v. Garson and others, 4 Moore, 272.