1885 HEYDE v. SWAN. The point on which the present decision must turn is: Whether the plaintiffs were entitled to any damages at all, by reason of a stipulation in the contract in the following terms:-"The shipowner's liability in case of loss or detention or injury to goods for which they may be responsible, to be calculated on, and in no case to exceed, the net invoice cost." At the trial there was no evidence given as to what the net invoice cost of these goods was, or whether it would be the price of the goods at the place where they were sent to, or the original cost price with charges added. Although the invoice does not appear to have been put in evidence, it is stated that these goods, on being sold, realised an amount in excess of the invoice price; that is to say, that these goods realised not only the net invoice price, but something more. It has been contended that as the contract limits the damage to the invoice cost only, the plaintiffs, having received that amount, have no right to come into Court to ask for damages. It is said that the proper construction to be put on this clause is that the damages are not to exceed an amount which would be equal to the net invoice price; that is to say, that if the invoice price was 10s., and the damage was 11s., the only effect of the clause was to limit the amount of damages to 10s. That does not appear to us to be a proper view to take of this stipulation. Among other things, the framers of this clause must have had in view the case of these goods being lost altogether. If the goods were so lost, then the consignees would get the net cost and no more; if they were damaged, they would recover an amount which, if added to what they realise or were worth in their then state, would be equal to the invoice price. This verdict must be set aside and entered for the defendant instead of the plaintiffs. The plaintiffs are entitled to nothing. The contract limits the amount which the shipowner is liable for, and the amount which the consignees may claim for. If, before the action is commenced, the invoice price has been actually received, there is no damage, and no cause of action. Attorney for plaintiffs: Sly. Rule absolute, with costs. Attorneys for defendant: Bradley & Son. GODFREY v. POOLE AND ANOTHER. Privy Council appeal-Application to order appellant to complete transcript, and in default for leave to put the bond in suit-Jurisdiction. The plaintiff having obtained leave to appeal to the Privy Council, and having neglected for six months to make up a transcript or prosecute his appeal, the defendants now applied upon notice that the plaintiff be ordered, within one month, to complete the transcript and take the necessary steps for prosecuting his appeal, and that in default the defendants be at liberty to put the bond in suit. Held, that the Court had no jurisdiction to make the order asked. After leave granted to appeal, the matter was in the hands of the Privy Council. Application dismissed, with costs. MOTION, upon notice, that the plaintiff be ordered within one month to complete the transcript, and take all such steps as may be necessary for duly prosecuting his appeal to Her Majesty-inCouncil from the decree herein, dated 26th February 1884, and for which appeal leave was granted to him by order dated 23rd May 1884. And that in default thereof the defendants may be at liberty to put in suit the bond given to the Prothonotary to this honourable Court, by James Hunt and Eugene Klotz, as sureties for the said plaintiff, dated 2nd June last, on the grounds that the plaintiff has not prosecuted the said appeal with all due diligence, as provided by the said bond; or that such other order may be made as the Court shall think fit; and that the plaintiff may be ordered to pay to the defendants (when taxed) their costs of and incident to the application on which the said order of 23rd May last was made, together with the costs of and incidental to this application. The following facts appeared from the affidavits filed:-On 2nd October 1882, the plaintiff filed his statement of claim in the Supreme Court, in its Equity jurisdiction. On 9th August 1883, by decree of His Honour the Primary Judge, the statement of claim was dismissed with costs. The plaintiff appealed to the Full Court, and on 26th February 1884, the appeal was dismissed with costs (1). On 1st March the plaintiff filed a petition for leave to appeal to the Privy Council. Leave to appeal was granted on 23rd May, and the usual bond to prosecute the appeal (1) Reported 5 N.S. W. L.R. Eq. 1. 1885 Feb. 13. Martin C.J., Faucett J. and Windeyer J. 1885 GODFREY บ. POOLE. Martin C.J. with due diligence was given on 2nd June 1884. No steps have been since taken by the plaintiff. On 1st April 1884, the defendants obtained a certificate for their costs of the proceedings in the Supreme Court; and they issued execution on 25th April, but realised nothing. On 10th May 1884, they obtained a Rule nisi to sequestrate the plaintiff's estate as insolvent; but in June the Rule was discharged with costs, on the ground that the application was for the purpose of preventing the plaintiff from proceeding with his appeal to the Privy Council. Darley, Q.C. (A. H. Simpson with him), in support of the motion-The plaintiff has not applied to the judges for their reasons, and has not prepared the transcript. We are not entitled to have the transcript prepared; the plaintiff, as appellant, has the carriage of the appeal. Until the transcript is filed in the Privy Council, the suit is in the hands of this Court; the Privy Council know nothing of the appeal until the transcript is filed. We ask that the plaintiff be put upon terms to prosecute the appeal with due diligence: Macpherson's Privy Council p. 94. Salomons, Q.C. (Armstrong with him), showed cause-The matter is solely within the jurisdiction of the Judicial Committee of the Privy Council. By sec. 24 of the Act 3 & 4 W. IV., c. 41, power is given to the Queen-in-Council to make rules and orders, and regulations for preventing delays in the making or hearing appeals. The fifth order-in-council only says that security shall be given "for the prosecution of the appeal;" no time is fixed for obtaining the transcript. We have a year and a day within which to prosecute our appeal. This Court has no jurisdiction except to grant leave to appeal: Macpherson's Privy Council, p. 95. We ask for costs. Darley in reply. SIR J. MARTIN C.J. In this case the plaintiff had a decree pronounced by this Court, in its Equity jurisdiction, against him about twelve months ago, and, within the time limited for that purpose, he presented his petition to appeal from that order to the Privy Council, on the requisite security being given. But he has not yet obtained a copy of the judges' reasons for their decision, nor has he sent the transcript to the Privy Council. Twelve months have elapsed, and no transcript has been prepared or sent. In that state of things, the party succeeding in the suit, that is to say, the defendants, apply to this Court that permission be given to them to put the bond in suit, unless within a month, or such time as the Court may fix, proceedings are taken by the plaintiff to send on the transcript to the Privy Council. This motion is opposed, on the ground that it is not one which this Court can grant. There is no doubt that this is the first instance of an application of this kind being made. We have no previous decision to guide us in the matter, and we must give our judgment from a consideration of the terms of the authority conferred on this Court by the orders-in-council. When once an appeal to the Privy Council is allowed-and such allowance is regulated by the fifth of these orders-it can only be on security being entered into within the time limited. The appeal being allowed, all that is necessary in order to give jurisdiction to the Privy Council has taken place, and the matter is then in the hands of that tribunal. Supposing that we granted this application, and fixed a month within which the plaintiff was to proceed with the appeal, and directed that in default the bond should be put in force, that would not prevent the plaintiff from applying to the Privy Council for special permission to appeal. If the Privy Council granted the application, what would be the position of this Court? That question shows that the proper place for the defendants to make their application is to the Privy Council itself. Many applications have been made to the Privy Council to order the dismissal of an appeal for want of prosecution, but I am not aware of any being made when no transcript has been filed. It is said that the Privy Council cannot have cognisance of the suit where no transcript has been sent, and there seems some force in that contention. But there would be no difficulty in bringing the matter before the Privy Council, 1885 GODFREY v. POOLE. 1885 GODFREY v. POOLE. by setting forth the substance of the transcript and the delay of the plaintiff. I admit that this would involve extreme inconvenience to the suitors, but that inconvenience arises from giving the right of appeal to a distant tribunal. We may suppose a case in which, after an extreme lapse of time, the Privy Council may grant leave to proceed with an appeal. It is a possible case that the Privy Council might postpone an application for leave to appeal and keep the successful party out of the fruits of his judgment for a very long time. We might in such case take upon ourselves the responsibility of enforcing the judgment, and such a step might bring about a conflict of jurisdiction. But in this case no such necessity has arisen. The Privy Council is the proper tribunal to deal with this matter, and to it the application must be made. I think we must refuse this application, with costs. FAUCETT J. I am of the same opinion. Under the Order referred to it is quite clear that when the Court grants leave to appeal from its decision to the Privy Council, it has nothing further to do with the action. It is rid of it altogether, and it loses jurisdiction over the matter. The action is then in the hands of the Privy Council. Here, then, is an Order of this Court granting leave to the plaintiff to appeal; and after such Order the appellant may prosecute his appeal before the Privy Council. We are now asked to reverse that Order, and to say that we do not grant leave to appeal unless certain conditions are complied with. The only way to get rid of the Order of this Court is to apply to the Privy Council to dismiss the appeal for want of due prosecution. This Court has now no further power to interfere. It is not necessary to consider the possibility of the Privy Council taking a particular course; and I do not think it necessary to make any observations as to what our course of proceeding would be under such circumstances. This application must be dismissed; and the respondent, having been put to the expense of opposing the application, must have his costs. WINDEYER J. We have no power to grant this application. Under the 5th Rule, when the Court has granted leave to appeal, |