Sir W. J. C.J.-The majority of the court are of opinion that the case is not appealable.
As for myself I cannot get over the difficulty as to the bond. We have no evidence that the bail knew anything the proceedings in this appeal or took any part in them. The factum is signed by counsel for the respondent and all the proceedings are in his name. The parties really interested are not before us and have no security for costs.
J.-I think the want of security is fatal to this appeal. The bail have never had a word of notice. The respondent is the defendant in the original action, the bond is given to him and he is the only person who can avail himself of it. The factum, too, is signed by the counsel for the respondent. The proceeding, therefore, is one in which the real parties are not before us. As to substituting a proper bond in favor of the bail for the one given, that is out of the question, as the time for giving security has elapsed.
I also doubt whether the judgment appealed from is a final judgment. I am inclined to consider it a mere matter of practice in which the decision of the court below should be binding. We have in this court to deal with different systems of practice with which the judges of the court below are much more familiar than we can possibly be. In refusing to consider such matters we simply obey the provision of the statute requiring us to follow the practice of the Privy
Council when no rule is laid down by the statute itself. concurred.
GWYNNE J.-I am not prepared to hold that this is not a final judgment. I think it is conclusive, and as to the bond I should be glad if it could be rectified. If the bail knew of it, and accepted it, and came here to argue it, I do not see why we might not hear them.
J.- I agree with what has been said as to our not having jurisdiction and cannot see that this is an appealable case.
An appeal only lies from a final judgment, which is defined as " any judgment, rule, order or decision whereby the action, suit, cause, matter or other judicial proceeding is finally determined and concluded." I do not see how we can read these words "or other judicial proceeding" so as to include a collateral matter in some other action.
There may be no other remedy, but the court below must have control of its own practice and have full power to deal with such cases as these (1).
Appeal quashed with costs.