v. McCulloch (b); In re Wyatt (c). The appellants have taken advantage of the order and acted upon it, and cannot now appeal therefrom. Higgins This appeal is not from the final order, but from the conditional order. The Court has power to vary the primary order, and to make it consistent with all the merits of the case. The case of Goldsbrough v. McCulloch refers only to a power to rescind an order after it had been properly made, but this is an appeal from an order which has been improperly made. The Appeal Court has jurisdiction to make the order which ought to have been made in the first instance. The affidavit should not be regarded, as it relates to matters which have occurred since the appeal was lodged. Cussen-The Court has jurisdiction to entertain this application for the purpose of saying that it is an application which should not be granted, and therefore has power to award costs: Mackintosh v. The Lord Advocate (d); Reg. v. Parlby and others (e). Higgins-If the Court has no jurisdiction over the cause it cannot award costs: Brown v. Shaw (f); In re Lister Henry (g). A'BECKETT, J. This is an appeal under novel circumstances. It is an appeal from a preliminary order in the process of obtaining leave to appeal to the Privy Council. The plaintiffs, the present appellants, had failed in the action to this extent, that the judgment was given for the defendants, but the plaintiffs had obtained, with reference to certain issues, an order in their favour as to costs. Then an appeal was made to this Court, and in the notice of appeal the plaintiffs intimated that they were satisfied with the judgment in so far as it gave costs of certain issues to them, but dissatisfied with what it had failed to give (b) [1870] 1 V.R.L. 192. (c) 2 Ar. Rep., p. 330. (d [1876] 2 Ap. Ca., p. 78. (e) W. N. 1889, p. 190. F.C. 1899 CAYRON v. RUSSELL (No. 3). F.C. 1899 CAYRON v RUSSELL. (No. 3). A'Beckett, J. them in other respects. That appeal was only limited by the statement excepting from the appeal the order made in the appellants' favour as to costs. The appeal to this Court was dismissed, with costs, and from that order of dismissal, which in its operation merely confirmed the order of the primary Judge, leave was sought to appeal to the Privy Council. In exercising the discretionary power which the Judge possessed as to the terms upon which the appeal to the Privy Council should be allowed, with reference to the costs already directed to be paid, the Judge required that if the plaintiffs availed themselves of the order made in their favour as to costs, they should give security for refunding the amount, in the event of their being under a liability to refund by reason of what the Privy Council might order. It is from that portion of the order that this appeal now comes before us. On the appeal being opened the attention of the Court was called, by affidavit, to the fact—which could in no way have surprised the appellants, as it was within their own knowledge and part of their own action-that in pursuance of the order under which this appeal is brought the necessary conditions have been performed, security has been given, and the plaintiffs are now appellants to the Privy Council. The final order has been made under the conditional order, and this conditional order is the subject, practically, of this present appeal. Objection was, no doubt, taken to the reception of the affidavit, though Mr. Higgins has referred to it, and indeed considers that it does not weaken his position as appellant to this Court. We think we are at liberty to regard that fact, so disclosed, in relation to the order from which the appeal is made, and we find as a result of that fact that the present appellants, who have obtained an order in their favour, and have acted upon that order and used it as a first step to the completion of the second step by perfecting security, are now seeking to vary the conditions, and we think that having so availed themselves of that order it is not competent for them now or it would not be right for us now to alter the conditions upon which the preliminary order was obtained. It was pointed out in argument that the conditions which are objected to by the appellants are not as if F.C. 1899 CAYRON v. conditions separable from the jurisdiction. It is not HODGES, J. I only desire to add that with regard to the merits of the case I am not prepared to express any decided opinion, as I have only heard one side in the argument, but as far as I can form any judgment I think that the Judge's jurisdiction has been exceeded. HOOD, J. I concur in the judgment, but upon another ground. The appellants have done everything which they were bound to do, and so far I agree with their counsel. But they have done more; they have taken a step which, according to decisions, has removed the cause out of the jurisdiction of this Court. The case has been practically sent to the Privy Council, and is under the control of the Privy Council, and we have no V.L. R., Vol. XXIV. 000 RUSSELL (No. 3). A'Beckett, J. F.C. 1899 CAYRON v. RUSSELL (No. 3). right now to interfere with this order. As I think we have no jurisdiction to deal with the case, I think we have no jurisdiction to give costs. Appeal dismissed with costs. Hood, J. Solicitor for appellants: J. Woolf. END OF VOLUME XXIV. W. H. M. INDEX. ABORTION-Supplying drugs with intent | ADMINISTRATION-Practice-Regulæ Gene- to procure abortion woman See CRIMINAL LAW. 2. Non-existing rales, 23rd June 1873-Rr. 6, 19-Company ABUSE OF PROCESS OF COURT-Petition to a company an affidavit by the manager of to sequestrate estate See INSOLVENCY. 4. Improper See INSOLVENCY. the company that "he has caused to be made 3. Parties-Administration and Probate pœna duces tecum See COSTS. |