charters of the high courts of Calcutta, Bombay and Madras (see Ilbert, Government of India, Oxford, 1898, p. 137). In addition, the decisions of subordinate tribunals may be revised by a superior tribunal proprio motu, or reviewed in a proper case by the tribunal which has given them; and provision is made for the consultation of a superior by an inferior tribunal in cases of legal difficulty. The policy of admitting so many appeals has been criticized. But with an enormous population which has no representative institutions it has been deemed wise to provide ample means of correcting judicial errors at the instance not only of the aggrieved person but also at the instance of the supervising judicial authorities, as a means of ensuring regularity and propriety in the conduct of judicial business by subordinate judges in out-of-the-way districts.
Civil Appeals.—(1) Except where otherwise expressly provided by the Civil Procedure Code, or by any other law for the time being in force, an appeal lies from the whole or part of any decree, whether made ex parte or inter partes, of a court exercising original jurisdiction (Civil Procedure Code, § 540). By “decree” is meant the final expression of an adjudication upon a right claimed or defence set up in a civil court, when such adjudication, so far as regards the court expressing it, decides the suit (§ 2). The appeal is both on facts and on law. The procedure on the appeal is prescribed by c. 41 of the Civil Procedure Code, and the directions of the code deal even with the language of the judgment on appeal and the matters to be stated therein. (2) Decrees passed on an appeal to any court in India subordinate to a High Court are as a general rule subject to appeal to the High Court on the grounds (a) that they are contrary to a specified law, or usage having the force of law; (b) that they have failed to determine some material issue of law, or usage having the force of law; (c) of substantial error or defect in procedure prescribed by the code or other law which might possibly have produced error or defect in the decision of the case upon the merits (§ 584). The procedure on these appeals is regulated by c. 42 of the Civil Procedure Code. (3) Appeals from orders which do not fall within the definition of decrees are allowed in the cases specified in § 588 of the code. The procedure with respect to these appeals is on the same lines as that on appeals against decrees (§ 590). Provision is made (by c. 44) for allowing appeals in forma pauperis after certain preliminary inquiries. In the High Courts appeals lie from the decision of one judge to two or more judges of the High Court, whose decision has effect as a judgment of the full court. Appeals, in civil cases, from the courts of India to the king in council are regulated by c. 45 of the Civil Procedure Code. The appealable amount is for most cases Rs. 10,000 or a claim or question as to property of like amount.
Besides the provisions stated as to appeals, Indian courts have power in certain contingencies to review their own decisions (§ 623). An inferior court may also refer cases of difficulty to the High Court on a statement of the facts as found in the referring court and of the opinion thereon of that Court (§§ 617-620); and in cases in which no appeal lies to the High Court, that court may call for the record of any case in which the court below appears to have acted without jurisdiction or failed to exercise its jurisdiction, or to have exercised its jurisdiction illegally or with material illegality (§ 622).
Criminal Matters.—Criminal jurisdiction in India is exercised by magistrates of the first, second and third class, by sessions courts, and the high or chief courts of the presidencies or provinces (Criminal Procedure Code of 1898). The higher judges in a district have the power of revising those decisions which are not absolutely summary of the judges of the classes below them in the same district; i.e. the sessions judge can revise the decisions of a first-class magistrate, and the High Court those of a sessions judge (§ 435). Inferior tribunals can also refer questions of law to the High Court (§§ 432, 433); and where a sentence of death is passed, or a sessions judge differs from the jury (§ 307), the matter must be referred to the High Court. On matters of reference or revision the parties have no right to be heard.
Provision is also made for appeals by c. 31 of the Code. Appeals from second- or third-class magistrates are dealt with by the district (first-class) magistrate (§ 407). Persons convicted on trial by assistant sessions judges or first-class magistrates, except in cases where the punishment is very small, have an appeal to the sessions judge (§§ 408, 413). A person convicted on trial by the sessions judge has an appeal to the High Court (§ 410), but where he has pleaded guilty the only point on which appeal is open is the legality or extent of sentence (§ 412). Special provision is made as to appeals by persons born in Europe (whether British subjects or not) and Americans (§§ 408, 415, and c. 33).
In criminal cases there is a right of appeal to the king in council in certain cases provided for by the charters of the chartered high courts (see Ilbert, Government of India, Oxford, 1898, p. 137).
An appeal also lies in certain cases from the courts of British officers in feudatory states of India to a high court in India, and from the courts of Aden and Zanzibar and British East Africa to the High Court of Bombay. Appeals do not lie from the courts of native states to British courts in India, though in some cases there is an appeal of a political rather than judicial nature from the judicial tribunals of feudatory states; e.g. in the case of Kathiawar (Hemchand Derchand v. Azam Sakarlal; 1906. L.R. A.C. 212).
Canada.—In Canada each province has the regulation of its own courts of justice. In Ontario the judiciary are organized, under the Provincial Judicature Acts, in much the same manner as in England; and the review of decisions of inferior courts (by appeal or other proceedings based on English practice) is in the hands of the High Court of Justice, subject to appeal to the provincial court of appeal. In Quebec the highest court (king’s bench), besides its original jurisdiction, has appellate jurisdiction over the superior court (see Quebec Civil Procedure Code, art. 1114 et seq.). The jurisdiction is exercised by writ of error or by appeal, according to the nature of the decision appealed from. The judges of the superior court have also, under art. 494, power to review before three judges decisions of a judge of that court or of a circuit court (arts. 494-504). Nova Scotia, New Brunswick, Manitoba and British Columbia have supreme courts with appellate authority over decisions of single judges of the court and over inferior tribunals in the province. Appeals lie from the highest courts of each province, in civil matters, to the Supreme Court of Canada, or to the king in council in cases falling within the orders in council applying to each province, but in criminal matters to the king in council. From the Supreme Court of Canada no appeal lies as of right to the king in council (Dominion Act 1875, 38 Vic. c. 11, § 47), and the royal prerogative of granting special leave to appeal is sparingly exercised. The principles on which the judicial committee acts in advising for or against the grant of special leave in civil case& are stated in Daily Telegraph Newspaper Co. v. M‘Laughlin, 1904, L.R. A.C. 776. It is, however, as before, quite common for appeals to be brought direct to the privy council from the provincial courts without resort to the Dominion court (see Wheeler, Privy Council Law, p. 955).
Australia.—Each of the states of the Australian Commonwealth has its own supreme court. The Commonwealth parliament constituted in 1903 a High Court for Australia, which, besides its original federal jurisdiction, is also a court of appeal from the supreme courts of the constitutional states, or from any state court from which an appeal lay to the king in council at the establishment of the Commonwealth. The jurisdiction of the court is defined by the Judiciary Act of 1903, by which it is created. The right of appeal is given both as to criminal and civil matters.
South Africa.—In Cape Colony and Natal the appellate courts are the supreme courts, subject to further appeal in certain cases to the king in council. The superior courts of Cape Colony are empowered to review the proceedings of all inferior courts in the colony and its dependencies in cases where no appeal lies. There was for a time an appeal from the High Court of Orange
