Tyrrell, J.:— A preliminary objection has been taken by the respondent to the hearing of this appeal which was presented one day after the period of limitation prescribed for its admission had expired. It is explained for the appellants that they had been occupied, down to the last day open for the presentation of such an appeal as the present, in making an application to this Court in revisional jurisdiction for the same relief against the same party as is now sought; that they had been prosecuting that same civil proceeding with due diligence and in good faith, but that the application was rejected for want of jurisdiction to entertain it is revision. In other words, the appellants pray in aid the saving provision of s. 14 of Act XV. of 1877. It is objected for the respondent that s. 14 applies not to appeals, but to suits and original applications only. This is true; and I observe that the provisions of the section are mandatory; the time occupied in proceeding; the kind described in the section “shall be excluded.” But by s. 5 of the Limitation Act appellate Courts have power to admit any appeal after the period of limitation prescribed therefor abject only to the condition that the appellant satisfies the Court that he had sufficient cause for not presenting his appeal in time. It is obvious that the circumstances contemplated in s. 14 might, and ordinarily would, constitute a sufficient cause in the souse of s. 5. And the reason why s. 14 is limited to Courts of original jurisdiction is merely because the earlier section had given a larger and unfettered power in the same behalf to appellate Courts. Applying the reasonable principle of s. 14 to our unquestioned powers under s. 5, I would over-rule the objection under the peculiar circumstances of this case, and Would admit the appeal to a hearing.
Straight, J.:— concurred.
The appeal having been heard, the Court (Straight and Tyrrell, JJ.) delivered the following judgment:—
Staright, J.:— We do not think that the decision of the Judge can be upheld. As the plaintiff-respondent deferred bringing his suit for possession until a time when no decree he might obtain could give it him within the stipulated period of nine years, it is obvious that no Court could have power to enforce his rights under a contract that to this extent had expired. The view of the Sub-ordinate Judge was right, and this appeal being decreed without costs, the decision of the first Court will be restored.
Appeal allowed.