Jackson, J.:— The only two questions which arise upon this appeal are: ??? the question of limitation, which, although neither taken ??? Court below, nor, as I understand, in the memorandum of ??? here, has been mentioned by Mr. Allen, and he desired to heard upon it; and, secondly, the question of interest.
As to limitation, Mr. Allen contended that adverting to ??? 4 of the Limitation Act of 1877, a Court of Appeal is ??? to dismiss the suit upon it appearing that limitation ??? been incurred, although limitation had not been set up ??? defence. That does not appear to me to be the proper ??? of the section. That section says:— “Subject to the ??? visions contained in sections 5 to 25 (inclusive), every ???, appeal presented, and application made, after the ??? of limitation prescribed therefor by the second schedule ??? annexed, shall be dismissed, although limitation has not ??? set up as a defence.” That compels the Court hearing the suit which has been instituted after time to dismiss the suit, although limitation has not been set up as a defence. In like manner it compels an Appellate Court, where the appeal has been presented after the period prescribed therefor, to dismiss the appeal notwithstanding that no such objection has been raised. But where the error, if any, has occurred in the Court of First Instance, that is to say, where a suit, which ought to have been dismissed under the operation of that section, although limitation was not set up as a defence, has not been so dismissed, in order to bring that matter before the Appellate Court, the defendant Mow must appeal upon the whole case, and not as has been done, appeal merely upon a particular part. We were willing to go into the question of limitation if the full amount of the stamp duty upon the appeal had been put in, but the appellant is not prepared to do that, and consequently we do not go into that question.
[The learned Judge then dealt with the facts of the case, and in the end dismissed the appeal.]