Sproule J:

Judgment in the consolidated suits was delivered on 1 June 1929. Inter alia an account was referred to the Registrar in case Counsel could not come to an agreement. Negotiations between Counsel and other matters distracted the Defendant's attention and when agreement appeared unlikely, he gave notice of appeal on 4 July 1929.

If the judgment had been interlocutory, then notice should have been given within twenty-one days of 1 June, and the notice of 4 July, since it did not comply with s. 1127 of the Civil Procedure Code, was a nullity and ineffective for the inception of an appeal.

It appears that Defendant wished to appeal only against the footing of countersignature upon which the account was ordered, and it may be that he was therefore justified in believing that the judgment he desired to appeal against was interlocutory.

Be that as it may, Defendant filed a motion dated 10 July 1929, asking for extension of time to appeal from 21 June 1929, to 5 July 1929, hoping no doubt for an order nunc pro tunc to cure this invalid notice of 4 July.

Directly upon receipt of notice of this motion, Plaintiff was advised to file a motion by way of counterblast, asking that the appeal upon which notice was given on 4 July, might be struck out for non-compliance with s. 1127. This motion was dated 11 July 1929. It was a highly unnecessary proceeding, since Plaintiff could have achieved the same end by opposing Defendant's motion for extension of time.

Both motions were properly headed "In the Court of Appeal." Both were listed for hearing before Deane J on 23 July 1929, after affidavits had been filed under Defendant's application by Mr. Page and Mr. Knowles, the Defendant's and Plaintiff's Counsel.

Deane J purporting to act under s. 1150 of the Code as the Court of Appeal operating through a single Judge, dealt with Defendant's motion for extension of time to appeal. He heard Counsel on both sides and decided to allow the motion, making Defendant pay the costs of this indulgence granted to him.

Mr Knowles' motion was then called on, but the learned Counsel refused to move, saying that his application was to the Court of Appeal, and questioning the learned Judge's jurisdiction to deal with it as a single Judge. Deane J thereupon dismissed this motion with costs.

Plaintiff was not satisfied with either order. But I think he misconceived his remedy. He appealed to the Court of Appeal against the two orders of the Court of Appeal (purporting to operate through a single Judge). Mr. Knowles before us did not support that procedure. He had already, in effect, abandoned it when he moved the Court of Appeal by a motion dated 12 November 1929, to act under s. 1150(3) and discharge the two orders he complained of.

Out of all this very confused proceedings two issues arise upon merits, as distinct from mere procedure. These appear to be

(a) whether Deane J had jurisdiction under s. 1150 to make the two orders he did,

(b) whether, if he had not, we should not, ourselves, deal with the application by Defendants for extension of time to appeal upon its merits.

Upon the first point we are all agreed that Deane J had no jurisdiction. The jurisdiction conferred upon a single Judge by s. 1150 of the Code is subject to certain clear limitations -

(a) There must be a cause or matter pending before the Court of Appeal;

(b) Any direction to be given by the single Judge must not involve the decision of the Appeal;

(c) Any such direction must be incidental to a pending cause or matter;

(d) Only an interim order can be made to prevent prejudice to claims of parties to an appeal, which, moreover, must be pending.

Now if notice of appeal is not given which satisfies the requisites of s. 1127, then there is no inception of any appeal and there is not and cannot be an appeal pending or any cause or matter pending, before the Court of Appeal. The essential condition or at any rate one essential, of (a), (b), (c) and (d) was there