Dec.  i,  1892,] 
THE  TROPICAL  AGRICULTURIST, 
421 
is  certainly  not  clear  and  both  Ordinances  leaves  it 
quite  open  that  it  may  be  both  judgments.  The 
42nd  section  of  the  Courts  Ordinance  refers  to 
THE  DESIKE  IN  THE  FIRST  PLACE  TO  APPFAL 
against  the  judgment  at  first  pronounced,  and  the 
first  proviso  declares  that  before  any  “ such  appeal” 
shall  be  “so  brought”  such  judgment  shall  &c.  The 
plain  meaning  of  this  is  that  whatever  occurs 
subsequently  that  is  the  judgment  to  appealed 
against.  Then  the  second  proviso  refers  to 
“such  judgment  &c.  in  review’”  clearly  referring 
to  the  judgment  in  review  which  under  the  latter  part 
of  the  previous  proviso  the  Court  had  had  authority 
to  pronounce,  and  it  is  to  that  judgment  in 
review  only  that  the  provision  as  to  value,  finality  &c. 
attaches;  and  it  is  the  third  proviso  which  gives 
direct  authority  to  appeal  against  such  judgment. 
But  when  we  come  to  the  Code  we  find  that  precisely 
as  in  the  Courts  Ordinance  it  refers  to  the  right  to 
appeal  to  Her  Majesty  against  any  final  judgment, 
decree  &c.,  and  the  desire  to  appeal  against  such  judg- 
ment. It  is  therefore  the  original  judgment  against 
which  the  desire  must  exist  to  appeal,  and  it  is 
this  judgment  by  section  780  that  he  must 
apply  by  petition  to  have  brought  in  at  review,  and 
against  which  he  must  state  his  grounds  of  appeal, 
and  he  must  pray  for  a certificate  that  as  regards 
amount  or  value  or  nature,  the  case  fulfils 
the  requirements  of  section  42  which  I 
have  just  quoted,  cr  that  it  is  otherwise 
a fit  one  for  appeal  to  Her  Majesty  in 
Council.  I will  dispose  of  this  latter  exception  directly. 
Here  then  by  the  Code  with  regard  to  the  original 
judgment,  as  by  the  Courts  Ordinance  with  regard  to 
the  judgment  in  review, 
FINALITY  AND  VALUE 
are  essential  ingredients  ; and  that  this  was  distinctly 
contemplated  is  made  clear  by  the  subsequent  782nd 
section  which  declares  that  the  judgment  decree  or 
sentence  of  the  Supreme  Court  after  such  hearing  in 
review,  shall  be  pronounced  in  accordance  with  the 
rules  hereinbefore  prescribed  for  the  judgment  and 
decree  on  appeal.  And  then  comes  section  783  which 
says  the  person  feeling  aggrieved  by  such  jud.  ment 
in  review  shall  if  he  desires  to  appeal  therefrom, 
apply  &c.  I do  not  think  therefore  it  possible  to 
successfully  con' end  that  no  conditions  attach  to 
the  judgment  at  first  pronounced,  and  that  every 
such  judgment  must  be  heard  in  review  if  desire 
to  appeal  is  asserted.  The  question  therefore  for 
us  to  decide  is — does  this  judgment  or  decree 
in  ques'i.iu  come  within  the  category  of  those 
above  enumerated  and  against  which  only  we  are 
empowered  to  grant  a certificate  that  it  may  be  heard 
in  review  previous  to  appeal  to  Her  Majesty  in  Coun- 
cil. I have  moat  carefully  considered  it  without  any 
reference  to  my  own  feeling  or  inclinations  except 
so  far  as  they  would  naturally  lead  me  to  grant 
leave,  if  I thought  we  had  the  power  to  do 
so,  and  I can  arrive  at  no  other  conclusion 
than  that  we  have 
NO  POWER  TO  GRANT  THE  CERTIFICATE 
asked  for.  In  disposing  of  the  question  it  is 
proper  to  deal  with  the  provisions  of  the  Code  as 
to  the  value  of  the  judgment.  Till  that  point  is 
settled  it  is  immaterial  whether  the  judgment,  decree 
or  order  be  final  or  not.  And  this  brings  us  to 
decide  at  once  whether  the  judgment  is  given  or 
pronounced  for  or  in  respect  of  a snm  or  matter 
at  issue  above  the  amount  or  value  of  K5,000.  For 
mvself  I have  no  hesitation  in  saying  it  is  not. 
It  is  on  the  contrary  as  yet  and  so  far  only 
a judgment  given  and  pronounced  upon  the 
bare  question  of  fact  of  infringement  or  no  in- 
fringement, and  involves  no  definite  sum  or 
matter  at  issue  of  aDy  definite  value  save  and  excet  t 
the  costs  of  appeal.  Then  dots  it  involve  directly 
or  indirectly  the  title  to  property  or  to  a civil  right 
exceeding  the  value  of  R5,000  ? It  was  Dot  denied 
at  the  hearing  that  upon  the  face  of  the  proceed- 
ings it  was  not  easy  to  gather  what  was  the  value 
of  the  property,  the  right  to  which  was  effee'ed  by 
the  judgment  bnt  it  was  suggested  that  this  Court 
might  order  information  to  be  obtained  by  enquiry 
in  accordance  with  some  dictum  based  on  circura- 
stances  only  which  is  to  be  found  in  the  older 
auihorit'Ps  of  this  Court,  in  which  it  was  assumed 
that  a money  value  couid  be  attached  to  a decree 
for  a divorce  upon  a fiction  as  to  the  value  of 
every  marriage.  It  is  scarcely  necessary  to  say  that 
these  dicta  are  of  little  or  no  value  in  the  light  of 
decided  authorities  by  which  we  must  be  governed. 
Lord  Selborue  laid  down  the  rule  in  Allan  n.  Pratt, 
57  L O.  P C.  that  the  judgment  Is  to  be  looked  at  as 
it  affects  the  interests  of  the  party  who  is  preju- 
diced oy  it,  end  who  seeks  to  retrieve  himself  from 
it  by  appeal.  If  thrre  is  to  be  a limit  of  value  at 
all,  that  seems  evidently  the  right  principle  on  which 
to  measure  it,  and  looking  at  this  case  upon  that 
princple  I cannot  see  how  it  can  be  but  that  the 
va'ue  of  any  right  or  property  affected  by  it  exceeds 
R5,000.  Coming  to  the  question  as  to  the  finality  oi 
the  judgment,  I am  also  of  opinion  that  the  partial 
decision  of  the  action  by  our  decree  is  not 
final  so  as  to  bring  it  within  the  category 
of  judgments  or  orders  upon  which  we  are 
permitted  to  allow  an  appeal. 
THERE  CAN  BE  BUT  ONE  FINAL  DECREE 
in  an  action  and  this  is  oertainly  not  the  final  decree.  No 
final  decree  can  be  made  till  the  District  Court  haB 
adjudicated  on  the  matter  remitted  to  it  and  which 
involves  the  decision  of  the  general  qnestion  of  oosts. 
As  the  decree  in  respeot  of  whioh  the  certificate 
in  review  now  stands,  it  is  final  on  a qnestion  of 
fact,  but  not  final  regarding  tbe  objeot  of  the  suit,  viz. 
damages  for  the  infringement  of  the  plaintiff's 
patent.  I am  now  brought  to  the  words  to  whioh  I 
had  prom'sed  to  refer  and  which  find  place  in  the 
order  with  respect  to  the  original  judgment,  bnt  are 
rot  to  be  found  in  the  Courts  Ordinance  or  in  the 
Code,  in  relation  to  the  judgment  in  review,  viz. 
“ Or  that  it  is  otherwise  a fit  one  for  appeal  to 
Her  Majesty  in  Council.”  Beyond  the  faot  that 
these  words  have  been  taken  from  the  Indian 
Code  I cannot  find  an7  authority  as  to  their 
intent  and  meaning.  I am  disposed  to  think  that 
they  have  found  their  wav  into  our  law  rather 
through  inadvertency  than  from  any  deliberate  in- 
tention to  coDfi  r on  a single  judge  of  this  Court 
AN  UNLIMITED  DISCRETION 
to  grant  a certificate  in  any  case  in  which  one  judge 
of  this  Court  may  consider  a fit  one  for  appeal. 
Looking  at  the  source  from  which  the  words  oome  I 
think  they  must  be  construed  to  refer  to  tbose  cases 
peculiar  to  India  in  whioh  the  particular  laws  and 
customs  and  social  life  of  the  people  often  call  on 
her  local  courts  to  decide  large  questions  involving  not 
merely  rights  of  property  but  of  personal  status  and 
of  caste  affecting  at  once  Imperial  interests  and 
rule,  and  as  well,  the  interpretation  of  many 
systems  of  law.  I have  carefullv  examined  the 
reports  of  all  the  cases  dealt  with  by  the  Privy 
Council  for  the  last  30  or  40  ye'rs  and  I can  find  none 
on  wh’oh  sn  appeal  has  been  taken  by  leave  of  the 
local  courts  on  principles  analogous  lo  this  oase.  The 
defendants  have  the  right  to  go  to  the  Privy  Counoil 
for 
SPECIAL  LEAVE 
to  appeal  and  looking  to  the  practice  of  the  Oounoil 
not  to  grant  special  leave  in  those  cases  in  which  the 
C(  urt  below  have  improperly  granted  leave  whioh  has 
Veen  set  aside.  I feel  it  'be  safer  course  and  move 
in  the  interests  of  the  defendants  to  refuse  a certifi- 
ed, and  so  leave  them  free  to  go  to  the  Privy  Coun- 
cil for  special  leave  which  will  oertainly  be  granted 
if  we  are  wrong,  without  the  prejudice  against 
granting  speoial  leave,  if  without  authority  we 
grant  lepve  improperly.  I would  add  that  my 
brother  Lawrie  whilst  concurring  in  this  judg- 
ment, has  had  some  difficulty  in  arriving  at  the  con- 
clusion that  it  is  requisite  that  the  judgment  sought 
to  be  appealed  from  should,  in  the  first  instance, 
and  before  a certificate  is  granted,  disclose  the  money 
value  referred  to  in  tbe  Ordinance.  His  opinion 
was  that  it  was  nnh  the  judgment  in  review  to  which 
the  value  qualification  applied,  and  in  agreeing  with 
this  judgment  he  has  done  so  more  in  deference  to  tb§ 
