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EAMAN CHETTY v. MARIHAMY.D. C., Chilaw, 2,035.
Appeal—Application for leave to appeal—Lapse of time—Civil ProcedureCode, s. 765.
Where a defendant tendered security for costs of appeal on the last-day allowed for perfecting security and such security was rejected, andthe defendant did not satisfy the Supreme Court that she was preventedby unavoidable causes from complying with the provisions of sections 754and 756 of the Civil Procedure Code, and that she had good groundsfor appealing, held, that she was not entitled under section 765 to haveleave to appeal notwithstanding lapse of time.
EFENDANT desiring to appeal tendered security on the last
day allowed for perfecting security. The plaintiff showedcause against such security being accepted, and the District Judgeupheld ’ the objection. The defendant being unable to tenderother security in time, the appeal fell through.
Schneider, for defendant, moved the Supreme Court for leaveto appeal, notwithstanding lapse of time.
This is an application by a defendant, against whom judgmenthas gone, to be allowed to appeal notwithstanding lapse of time.It appears that the would-be appellant tendered security whichwas objected to by the respondent’s proctor, and the Court upheldthe objection. The day on which the tender was made w'as thevery last day allowed for the purpose of perfecting security, andthe would-be appellant had therefore no time to tender othersecurity. No appeal was lodged against the refusal of the Courtto accept the security, and we must assume that the Court wrasjustified in its refusal. That being so, it seems to me that thedefendant has not complied with the first of the conditionscontained in section 765 of the Civil Procedure Code as necessary
Bon see, C.J.
for the granting of the application. She has not satisfied theSupreme Court that she was prevented by causes beyond hercontrol from complying with the rules in respect of security.
And it seems to me that she has also not complied with theBecond of the conditions, namely, that she had good ground forappealing. The question in this action has reference to certainpayments which she alleged she had made to the plaintiff and hisclerk, and which the plaintiff and his clerk denied were made.There was great'conflict of evidence in this matter, and the judge■ took a strong .view of the case 'and said that he had no hesitationin. disbelieving the defendant and her son, and that he was ofopinion that the defendant and her son had conspired together todefraud the plaintiff. I listened attentively to what Mr. Schneider■had to say, and he certainly did not satisfy me that the petitioner-had good ground for appealing. The application will be dis-allowed.
– Moncreiff, J„—Concurred.