Richard Garth, C.J.
1. This appeal being set down for hearing on the Peremptory Board, the appellant on Friday last applied to us by petition to withdraw the appeal.
2. Mr. Branson for the respondents objected, that if the appellant was allowed to withdraw his appeal, the respondents, who had filed cross objections, ought to be allowed to prefer a cross appeal.
3. As, however, it did not appear under what circumstances the cross objections had been filed, we gave Mr. Branson an opportunity of satisfying us, upon affidavit, that his clients were ready to appeal, and would have appealed in due time if the appellant had not preferred his appeal first.
4. The case accordingly came on again on Monday last, when Mr. Branson produced an affidavit made by the two plaintiffs (the respondents), from which it appeared that they had brought the suit to recover a moiety of certain mouzahs; that their claim had been decreed as to two of those mouzahs, but dismissed as to the rest; whereupon the defendant appealed to this Court as to the part of the claim which was decreed, and the respondents filed cross objections as to the part of the claim which was dismissed.
5. The affidavit then proceeded to say that, after the lower Court's judgment had been given, the plaintiffs applied for attested copies of the judgment and decree with an intention to file an appeal in this Court against that part of the decree which dismissed their claim; and that these copies were obtained on the 11th of February 1881, so that the last day for filing their appeal would have been the 11th of May following.
6. Meanwhile, however, the defendant (appellant) had also obtained copies of the decree, and he appealed to this Court on the 28th of April 1881, so that the respondents, instead of appealing themselves, filed cross objections to his appeal.
7. But what the respondents' affidavit does not state, and what it is essential that it should state, in order to entitle them to file a cross appeal now, is this: that they were prepared to appeal on the 11th of May 1881, and would have appealed if the appellant had not done so.
8. The Judges of this Bench some time ago, after consulting other Judges of the Court, came to this conclusion: that no leave to appeal should be given to a respondent who has filed cross objections, unless the Court is thoroughly satisfied, upon affidavit, that he was ready to appeal, and would have appealed within the proper time if the other side had not done so.
9. We are by no means satisfied of this in the present case. The respondents were well aware that they were bound to satisfy the Court upon this point, they had ample time for considering the form of their affidavit; and yet it is perfectly consistent with the affidavit now before us that they did not mean to appeal if the defendant had been content not to do so.
10. It is true that they might have taken copies of the decree with the intention of appealing; but it does not at all follow that, having obtained the copies and taken advice, they were prepared to appeal three months afterwards.
11. The counter-affidavit which has been made by the appellant's son distinctly states that, before this appeal was filed, the respondents proposed to the appellant not to file any appeal, and agreed not to do so, provided that the appellant did not.
12. Under these circumstances we think that we should be contravening the rule, which guides us in these cases, if we were to allow the respondents now to file an appeal.
13. Mr. Branson has applied to us to be allowed to file further affidavits to remedy the defect in his present one; but this would be, for obvious reasons, a very dangerous thing to allow. The respondents must have known the point perfectly well upon which they had to satisfy us; and they had ample time to bring before the Court all their available materials.
14. We think, therefore, that the appellant should be allowed to withdraw his appeal, as he has proposed to do, on payment of costs; and that the respondents should not be allowed to file a cross appeal.