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![handle is hein.slavery/ssactsengr0202 and id is 1 raw text is: JACKSON V. PROTHERO [1842]
ON APPEAL FROM THE COURT OF APPEALS OF CIVIL JURISDICTION
OF THE ISLAND OF TRINIDAD.
EDWARD JACKSON,-Appellamt; PHILIP and GE(4RGE PROTHERO,-
Respondents * [May 18, 1842].
Appeal dismissed for want of prosecution.
Semble :-It is not necessary for the Respondent to lodge a. printed Case and
Appendix before moving to dismiss the Appeal for non-prosecution.
The Petition in this case was presented by the Respondents to dismiss the Appeal
for non-prosecution.
The Petitioners had instituted actions in the Court of First Instance of Trinidad
against the heirs of one William Walker, deceased, and obtained judgment in such
actions for the sum of £109,836 17s. 3d., currency, upon which writs of execution
were duly issued. The Appellant was the syndic of certain creditors of William
Walker, and on the 11th of November 1824, instituted his action of Terceira against
[491] the Petitioners, for £13,555 15s. 3d. out of the estate of William Walker.
On the 11th of May 1825, the Court of First Instance pronounced sentence in
the action, decreeing that the judicial referee of the Island should report the
amount due to the Appellant.
The Petitioners appealed from this sentence to the Court of Appeal of Civil
Jurisdiction in the Island, which Court, on the 8th of December 1825, reversed
the sentence of the Court of First Instance, so far as that Court gave preference
to the Appellant over the Respondent.
The Appellant obtained leave from the Court to appeal to His Majesty in Council
from this sentence, but did not lodge his appeal in England till December 1828.
The Respondents put in an appearance in January 1829, but, no steps were taken
by the Appellant from that time in the Appeal.
Under these circumstances, the Respondents presented the present Petition,
praying that the Appeal might be dismissed for non-prosecution. The Petition
was supported by the Affidavit of one of the Respondents, verifying the dates, and
in which he stated that the proceedings appealed from being very voluminous,
could only be obtained at an expense of several hundred pounds, and that the Re-
spondents having good reason to believe that the Appellant did not intend to
prosecute his Appeal, had, for that reason, and on account of the great expense
attending the same, abstained from obtaining certified copies of such proceedings.
Notice of the Petition was served on the agent for the Appellant, who appeared
at the hearing, but stated [492] that he had received no instructions to prosecute
the Appeal, but on receiving such notice to dismiss, had sent out to Trinidad, but
had not yet had time to receive an answer.
Mr. Burge, Q.C., in support of the Petition, submitted that there was no rule
to compel the Respobdents to print their Case and Appendix before moving to
dismiss, when the Appeal was not prosecuted, though something like a rule existed,
when the Judgment of the Court below is affirmed and the Appeal dismissed, but
that the present application was for a mere dismissal of the Appeal for non-
prosecution.
Lord Brougham.-The prayer of the Petition must be granted, and the Appeal
dismissed for want of prosecution. There is no such rule as requires the Respondent
to print his Case, before applying to dismiss, when the Appeal is not prosecuted by
the Appellant.
By an Order in Council, of the 3rd of June 1842, it was ordered that the Appeal
from the Judgment of the Court of Appeals of the 8th of December 1825 be dismissed
for non-prosecution, whereof all parties whom it might concern were to take notice
and govern themselves accordingly.
[Mews' Dig. tit. COLONY, III. APPEALS TO PRIVY COUNCIL, 6. Practice, c.]
* Present: Lord Brougham, Lord Campbell, the Vice-Chancellor Wigram, and
the Right Hon. Dr. Lushington.
III MOORE, 491](ViewImageLocal?handle=hein.slavery/ssactsengr0202&div=1&collection=&method=preview&ext=.png&size=3)