VOL. IV.7Z EXCHEQUER COURT REPORTS. 257 ALEXANDER MAcLEAr; .AND JOHN 1894 CHARLES ROQ-ER. (MAcLEAN, CLAIMANTS ; Oct. r. ROGER & C0. j AND HER. MAJESTY THE QUEEN RESPONDENT. Practice—Appeal by the Crown—Extension of time to appeal--Special grounds--50-51 Vict. c. 51.-53 Vict. c. 35. Where an application was made by the Crown for an extension of time for leave to appeal a long time after the period prescribed therefor in section 51 of 50-51 Vict. c. 16 (as amended by 53 Vict. c. 35), had expired, and the material read in support of such application did not disclose any special grounds or reasons why an extension should be granted, the application was refused. THIS was an application for an extension of time for leave to appeal to the Supreme Court of Canada. On the ,,Jth May, 1890, a judgment of the court was granted by consent and arrangement of the parties to give effet to an agreement for the submission of certain matters in dispute between the parties to arbitration which had become impossible to be carried out. By he submission, and by the judgment, the contract anc the sev , eral breaches thereof set up by the claim-ar is were apparently admitted, and the only question which it was proposed to refer .to special referees of the court was that of the amount of damages resulting from such breaches. The reference was proceeded with, and the referees made a report with respect to the damages to which the claimants were Pntitled but without fixing an amount. This report, against which • both parties appealed was subsequently confirmed by the court, and the amount for which judgment should be entered was ascertained by an accountant to be $24,090.82. On the 23rd day of April, 1894, on motion 17
258 EXCHEQUER COURT REPORTS. [VOL. IV. 1894 made by the claimants, judgment was rendered for MACLEAN,. that amount. ROGER Sc 00. April 30th, 1894. THE Hogg, Q.C., for the Crown, took out a summons for Q UEEN. au. order to extend the time within which to appeal C Counsel . from both the consent judgment of the 29th May y , , 1890, and the judgment pronounced herein on the 23rd April, 1894. May 1st, 1894. Au order extending the time to appeal from the judgment herein of 23rd April, 1894, was made on this date by consent of parties. The motion for an order extending the time for appealing from the judgment of the 29th May, 1890, was allowed to stand over pending negotiations for a settlement which eventually fell through. September 17th, 1894. The motion for an extension of time to appeal from the last mentioned judgment now came on to be argued. Hogg, Q.C., in support of the motion, read the following affidavit :— " I, William Drummond Hogg, of the City of Ottawa, in the County of Carleton, Barrister-at-law, make oath and say : " 1. That I have acted as solicitor and counsel in this action on behalf of the respondent. " 2. The judgment pronounced herein on the 29th day of May, 1890, referred the claims of the claimants to three referees to ascertain the damages suffered by them by reason of the alleged breaches of the contracts in the pleadings mentioned. " 3. The final judgment herein was pronounced in this court on. the 23rd day of April instant, and the
VOL. IV.] EXCHEQUER COURT REPORTS. 259 Crown is now desirous of appealing from the said judg- 1894 ments to the Supreme Court of Canada. MA L AN, " Sworn, etc. R &°Co. (Sgd.) " W. D. HOGG." v. THE He also cited the following authorities : The Queen QUEEN. v. Clark (I) ; Annual Practice 1893-94 (2). Argument of Counsel. Gormully, Q.C., contra, read the following affidavit :---- " I, Robert Victor Sinclair, of the City of Ottawa, in the County of Carleton, in the Province of Ontario, Esquire, make oath and say : " 1. I am a partner in the firm of Gormully & Sinclair, the solicitors for the claimants herein. " 2. The matters in question in this suit were referred , to arbitration by Deed of Submission dated the twenty-eighth day of March, A.D. 1890, a copy of which said deed is set out in the decree herein dated the twenty-ninth day of May, A.D. 1890. " 3. After the arbitration proceedings had gone on for some time and a large amount of expense had been incurred therein the said decree for reasons appearing in same was pronounced by this court on the twenty-ninth day of May, A.D. 1890, all parties consenting thereto as appears upon its face. " 4. No special circumstances are alleged or shown • whereon to justify the present application for an extension of time to appeal from said decree. " 5. Since the pronouncing of said decree a very long and expensive reference , before referees, the costs of which will amount to several thousand dollars, has been proceeded with and continued to completion. " 6. The respondent appealed to this court from the report of the said referees herein, and on the ninth day of April, A.D. 1894, by a judgment of this court the report of said referees was confirmed. (1) 21 Can.• S. C. R. 656. (2) pp. 63, 210, 211. 1 7%
260 EXCHEQUER COURT REPORTS. [VOL. IV. 1894 - " On the twenty-third day of April, A.D. 1894, on. MAIL N, motion for judgment, judgment was given in favour of ROGER & Co. the claimants for the amount found due by the said v. referees' report. QUEEN. " 8. On the eleventh day of September, A.D. 1894, Argument notice was served on the claimants by the respondent of Counsel. that an appeal had been taken to the Supreme Court . of Canada, a copy of which notice is hereunto annexed. " 9. In January, A.D. 1893, the claimants relyiiig on the finality of the said decree of the twenty-ninth day of May, A.D. 1890, obtained on the faith thereof certain advances from the Bank of Montreal, giving to said bank as collateral security for their then indebtedness and said advances an equitable charge on the moneys that might thereafter become payable to claimants by the respondent under said decree, which said charge is still in full force and virtue. " Sworn, etc. (Sgd.) " R. V. SINCLAIR." He referred to the following authorities : Seton on Decrees (1) ; Moss-v. Leatham (2) ; Annual Practice 1893- 94 (3). e Hogg, Q.C. replied. THE JUDGE OF THE EXCHEQUER COURT now (Octo- ber 11th, 1894) delivered judgment. I think, so far as this is an application for an exten- . sion of time in which to prosecute an appeal from the judgment herein of the 29th May, 1890, that I should refuse it. In respect to the judgment of the 23rd April, 1894, an order has been made and the appeal, I understand, is being prosecuted, so I have nothing to do with it at present. (1) pp. 111, 732. (2) 2 Moo. P. C. 73. (3) p. 1023.
VOL. IV.j EXCHEQUER COURT REPORTS. 261 With reference to the ,judgment of the 29th.May, 1894 1890, I express no opinion as to whether or not an M A L AN, appeal would lie because it was a judgment by consent & CoR of parties. I do not think that is directly involved in v. the question now before me, and I treat the matter as THE . N,IIEEN, though it were a case in which an appeal would lie. Reawons I refuse the application simply upon the ground that daagnien, no special circumstances are shown to exist, or any reason given for the extension of time asked for, and such an extension should not be granted unless special circumstances are shown to exist. Upon reference to the affidavit read in support of the application I find it merely states that judgment was delivered on a certain date (29th May, 1899), and that the Crown is desirous of appealing therefrom. That much might be urged in any case, and if allowed to be sufficient it would be difficult to suggest a case in which the limitation in the statute should be observed., Then, I think, there are special circumstances shown in the affidavit read in answer to the motion which make a against extending the time. In this connection I think it is a matter to be considered that the judgment was a judgment by consent, arrived at entirely by arrange- ment between the parties ; and so far as it was a final' judgment the claimants are now, I think, entitled to the benefit of it. The application to extend the time to appeal from the judgment pronounced herein on the 29th May, 1890, is refused with costs. Judgment accordingly. Solicitors for claimants : Gorrully 4. Sinclair. Solicitors for respondent : O'Connor c. Hogg.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.