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(b.) "In all causes, actions, matters, and things, in which Her Majesty's Court of " Queen's Bench, at Westminster, hath jurisdiction exclusively of the other Courts at "Westminster, and in which the Supreme Court of New Zealand hath juris- " diction within tho Colony of New Zealand, the Court of Appeal hereby constituted and " created shall have concurrent jurisdiction, power, and authority, with the said Supreme " Court, except as herein is otherwise provided." 11. APPEALS FROM SUPREME COURT. 29. We come now to consider the jurisdiction of the Court, in Civil Cases, as to matters more strictly in the nature of Appeal—but not properly included within the comprehensive head of " Error." With respect to the questions for appeal arising out of a trial of issues of fact, it seems to us expedient to adopt, mutatis mutandis, the proceedings of the Common Law Procedure Act, 1854, (17 &18 Vie, c. 125.) ss. 34-42. The provision in Section 33 requiring a statement in the rule nisi for a new trial or to enter a verdict or non-suit, of the grounds of the rule, has already been adopted into the New Zealand practice by rule 358 of the General Rules of Practice and Procedure. But it will be necessary also to provide for appeals in cases where the decision of the Supreme Court has not been given on the argument of a rule, and where the question does not necessarily arise on tho record so as to be the subject of Error—as in cases of decrees in actions for specific relief, injunctions, rules, and orders in summary proceedings. A slight addition to the clauses of the " Common Law Proceedure Act, 1854," will effect this object. 30. The clauses in the Appeal Court Bill might be as follows : — Instead of Section 34: 1. "In every case of a rule to enter a verdict or nonsuit upon a point reserved at " the trial, if a rule to shew cause be refused, or bo granted and then discharged, or " made absolute by the Supreme Court, the party decided against may appeal to the " Court of Appeal." For Section 35 : 2 (Note a.) "In every case of a motion in the Supreme Court for a new trial on the " ground that the Judge has not ruled according to law, or upon matter of discretion in " respect of which a new trial may by law be granted by the Supreme Court, or in case of " any other motion for a rule to shew cause, if the rule to shew cause be refused, or, having " been granted, be discharged or made absolute by such Court, and in every case of a " decree in an action for specific relief, or a rule or order for an injunction, or a rule or " order on petition, or on application to the summary jurisdiction of the Court, where the " matter complained of is not a proper subject for proceedings in Error under this Act, " (Note b.) the party decided against may appeal to the Court of Appeal, provided the " Supreme Court shall be of opinion that there is a reasonable ground of appeal, and shall " grant leave to such party to appeal, subject to such terms, as to costs and otherwise, as the " said Supreme Court shall direct." Note (a.) This clause differs considerably from section 35 of the English Act, on the ground that the Supreme Court of New Zealand consists practically of one Judge ; and the power of appeal is given in that section when one Judge in banco in England dissents from the opinion of the others, or the Court thinks fit, in its discretion to grant leave to appeal. We think it would not be wise to allow the unsuccessful party to appeal in all cases, without any control or leave of the Court, as this might lead to the protraction of litigation, especially by unsuccessful defendants, to the manifest delay of justice and damage to the community ; but by giving the Supreme Court a powerto grant leave to appeal, if an apparently arguable point should bo suggested, we believe sufficient facility of appeal will be afforded to the unsuccessful party. The proviso in the 35th section of the English Act which prevents an appeal in cases where the application for a new trial is upon matter of discretion only, as for instance on the ground that the verdict was against the weight of evidence, or otherwise, does not seem applicable here ; inasmuch as the probable reason for that proviso .'s that if the majority of the Court in banco in England think, as a matter of discretion, that it would be unwise to allow the case to be re-opened, it is not desirable that the litigation should be allowed to be carried farther. But in New Zealand, where the discretion of one Judge only has been brought to bear on the subject, it might be deemed hard that the parties should be conclusively bound by it. We have therefore altered the wording of this section so as to meet the circumstances of the Colonial tribunals. Note (b.) These words seem to include everything which ought to be applicable ; and thedanger of frivolous appeals seems to be provided against by the necessity of obtaining leave to appeal. 30a. Although we think that leave to appeal to be granted by the Judge of the Supreme Court will bo a wholesome check to frivolous appeals, it would be well to guard against the possibility of any jealous suggestion that a Judge had improperly refused leave to appeal, and to provide as follows : — 3. " In any case in which an appeal would lie from the Supreme Court according to the pro- <' visions of the last Section, if the Court granted leave to bring such appeal, but the Court refuses '' to grant the same, the party desiring to appeal may give notice in writing to the other party, i'within six days of such refusal, of his intention to present a Petition to the Court of Appeal at *

A,ppeals from tho Supreme Court to th« Court of Appeal,

In what cases.

Common Law Procedure Act, 1854, ss. 34, 42.

Appeal on rules nisi on point reserved at trial.

On motion for new trial. Rule refused, made, absolute, or discharged.

Decree in action for specific relief.

Petition to Court ot Appeal where leave tv appeal rsfused.

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REPORT OF THE JUDGES UPON