Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session Thirty-eighth Congress, Part I

Mr. Adams to Mr. Seward.

No. 594.]

Legation of the United States, London, February 11, 1864.

Sir: Your despatch (No. 820) was the only one received this week. Five copies of the President’s annual message and accompanying documents came with it.

I have sent an answer to the address of the Order of Memphis, in the identical terms of the despatch.

As Mr. Evarts has not yet returned from the continent, I have the honor to transmit copies of the London Times of the 8th and 9th instant, containing a report of the further proceedings in the case of the Alexandra. It appears that the government has been again foiled in its purpose to gain from the higher courts a judicial exposition of the enlistment act, by the interposition of technical objections to the process. I think they are by no means insensible to the awkward position in which this difficulty places the country in its relations with foreign nations. Inasmuch as the majority of the judges, whilst declining to take jurisdiction themselves, left open a way to the transfer of the question to the House of Lords, it is generally understood that that course will be adopted. The effect will be to cause another delay for a considerable time. And this delay will, in its turn, cause a postponement of any definite action upon the representations made by me to this government under the instructions contained in your despatch (No. 802) of the 6th of January. A report of my conference with Lord Russell on that subject was sent to you in my despatch (No. 584) of the 28th ultimo.

I have the honor to be, sir, your obedient servant,

CHARLES FRANCIS ADAMS.

Hon. William H. Seward Secretary of State, Washington, D. C.

P. S.—Mr. Evarts has called at the legation since the above was written.

The Alexandra Case.

The Court of Error, February 6.

Present: The lord chief justice of England, the lord chief justice of the common pleas, Mr. Justice Williams, Mr. Justice Crompton, Mr. Justice Willes, Mr. Justice Blackburn, and Mr. Justice Mellor.

THE ATTORNEY GENERAL vs. SILLEM AND OTHERS.

This case came before the court upon appeal from the decision of the court of exchequer, come to on the 11th of January last.

As soon as the case was called on for hearing, Sir Hugh Cairns, on the part of the defendants, took an objection to the means by which the case had been brought into the court for argument.

In order to make the present proceeding intelligible to our readers, it will perhaps be necessary to give some short outline of the case, bringing it down to the present moment. An information was filed by the crown against the defendants, following a seizure made by an officer of customs of the ship Alexandra, and the substantial question for the jury to determine at the trial was whether the condition of that vessel, at the time of her seizure, brought her within the provisions of the foreign enlistment act, 59 Geo. III, c. 69. The trial commenced before the lord chief baron on the 22d of June last, and terminated on the 24th of that month in favor of the defendants. The late Sir William Atherton, when attorney general, conducted the prosecution, and before the finding of the verdict proposed to tender a bill of exceptions to a portion of the learned lord chief baron’s ruling, and a brief note of the exceptions was handed up to him, when his lordship objected that it did not contain a correct statement of his ruling, and refused to accept it as a bill of exceptions; but ultimately it was agreed that a bill of exceptions should be formally prepared from such materials as could be found for that purpose and tendered for signature. The lord chief baron declined, when the formal exceptions were tendered, to sign them, for the same reason as above stated. On the 3d of November the present attorney general, Sir Roundell Palmer, upon an application to the court, said that the main point raised in the case was of such very grave and momentous importance that the crown was desirous that it might go to the court of error, and the last court of appeal, viz: the House of Lords, should it ultimately prove that one or both steps were necessary. The lord chief baron said he saw no prospect whatever of any change in the view he had taken as to his duty in signing the bill of exceptions. That so far from laying down the law, as the bill of exceptions tendered to him for signature had assumed he had, he had taken great pains to avoid doing anything of the kind. After the matter had been further discussed, the lord chief baron suggested that the object the crown had in view might be obtained by a motion without any reference to the bill of exceptions at all. It was true there had been no point reserved at the trial so as to give the crown a right of appeal in the event of the rest of the court concurring with his ruling and the direction he had given to the jury. It was a matter to be regretted, however unanimous the court might be in opinion, if they did not give the crown, as they had the power of doing, a right of appeal from their decision to a superior court. Baron Bramwell suggested that a difficulty might arise upon the question whether the common law procedure act applied to proceedings like those before the court. The act, which, to a certain extent, assimilated crown proceedings to civil actions, did not comprehend the case of an appeal from making absolute or discharging a rule; whether that was so or not, he thought, was open to some considerable doubt. On a subsequent day the attorney general moved to apply the common law procedure acts of 1852 and 1854, and the rules of pleading and practice to the revenue side of the court, so that an appeal would be competent under the 26th section of the Queen’s remembrancers act, 22d and 23d Victoria, cap. 21. The section states, “It shall be lawful for the lord chief baron, and two or more barons of the court of exchequer, from time to time, to make all such rules and orders as to the process, practice, and mode of pleading on the revenue side of the court,” and as to some other things, “as may seem to them necessary and proper, and also, from time to time, by any such rule or order to extend, apply, or adapt any of the provisions of the common law procedure act of 1852, and the common law procedure act of 1854, and any of the rules of pleading and practice on the plea side of the said court to the revenue side of the said court, as nearly as may be uniform with the process, practice, and mode of pleading on the plea side of such court.” Their lordships, after some consideration of the matter, on the 4th of November, 1863, issued the following rules:

“Court of exchequer.—Revenue side.

“In pursuance of the provisions contained in the 26th section of the 22d and 23d Victoria, cap. 21, entitled ‘An act to regulate the office of Queen’s remembrancer, and to amend the practice and procedure on the revenue side of the court of exchequer’—

“It is ordered that the following provisions of the common law procedure act of 1854 be extended, applied, and adapted to the revenue side of the court of exchequer; and also that the following rules as to giving bail in cases of appeal shall be in force on the revenue side of the court of exchequer.

“1. In all cases of rules to enter a verdict or non-suit upon a point reserved at the trial, if the rule to show cause be refused or granted, and then discharged or made absolute, the party decided against may appeal.

“2. In all cases of motions for a new trial upon the ground that the judge has not ruled according to law, if the rule to show cause be refused, or, if granted, be then discharged or made absolute, the party decided against may appeal, provided any one of the judges dissent from the rule being refused, or, when granted, being discharged or made absolute, as the case may be, or provided the court in its discretion think fit that an appeal should be allowed, provided that where the application for a new trial is upon matter of discretion only, as on the ground that the verdict was against the weight of evidence or otherwise, no such appeal shall be disallowed.

“3. The court of error, the exchequer chamber, and the House of Lords shall be courts of appeal for this purpose.

“4. No appeal shall be allowed unless notice thereof be given in writing to the opposite party or his attorney and to the Queen’s remembrancer within four days after the decision complained of, or such further time as may be allowed by the court or a judge.

“5. The appeal hereinbefore mentioned shall be upon a case to be stated by the parties, (and in case of difference to be settled by the court or a judge of the court appealed from, in which case shall be set forth so much of the pleading, evidence, and the ruling or judgment objected to as may be necessary to raise the question for the decision of the court of appeal.

“6. When the appeal is from the refusal of the court below to grant a rule to show cause, and the court of appeal grant such rule, such rule shall be argued and disposed of in the court of appeal.

“7. The court of appeal shall give such judgment as ought to have been given in the court below, and all such further proceeding may be taken thereupon as if the judgment had been given by the court in which the record originated.

“8. The court of appeal shall have power to adjudge payment of costs and to order restitution, and they shall have the same powers as the court of error in respect of awarding process, and otherwise.

“9. Upon an award of a trial de novo by the court, or by the court of error upon matter appearing upon record, error may at once be brought; and if the judgment in such or any other case be affirmed in error, it shall be lawful for the court of error to adjudge costs to the defendant in error.

“10. When a new trial is granted on the ground that the verdict was against evidence, the costs of the first trial shall abide the event, unless the court shall otherwise order.

“11. Upon motions founded upon affidavits it shall be lawful for either party, with leave of the court or a judge, to make affidavits in answer to the affidavits of the opposite party upon any new matter arising out of such affidavits, subject to all such rules as shall hereafter be made respecting such affidavits.

“12. Notice of appeal shall be a stay of execution, provided that within eight days after the decision complained of, or before execution delivered to the sheriff, bail to pay the sum recovered and costs, or to pay costs when adjudged, be given in like manner and to the same amount as bail in error is required to be given under the rules of this court, made on the 22d day of June, 1860, or as near thereto as may be applicable, provided that such bail shall not be necessary to stay execution in cases where the appellant is the crown, the attorney general on behalf of the crown, or the Prince of Wales, or the Duke of Cornwall for the time being.

“The foregoing rules shall come into operation and take effect forthwith, and apply to every cause, matter, and proceeding now pending.”

On the 5th of November the attorney general moved for a new trial on the ground of misdirection by the lord chief baron, the verdict being against evidence as well as the weight of evidence, it being distinctly and clearly understood that the crown had abandoned their bill of exceptions and brought the matter before the court as an ordinary motion, there being no right of appeal from the decision of the court on either side, except upon a matter of law. The rule having been obtained, it came on for argument on the 17th of November, and occupied the court until Monday, the 23d. The crown relied very strongly on the evidence adduced for the prosecution, which it was said was, and ought to have been, conclusive as to the character of the Alexandra at the time of the seizure, and that the jury ought to have found for the crown. The defendants had called no witnesses, but contended that the crown had been beaten in their own case, and that the verdict ought not to be disturbed. The arguments, as it will be remembered, were very long, and the summing up of the learned judge who tried the case was not only cut up by the counsel for the crown, but very carefully and minutely dissected afterwards, contrary, as it was said by the defendant’s counsel, to all precedent, as a judge had a right to the expression of his own opinion upon a case, provided he did not mislead the jury by leading them to believe that they were bound to accept that opinion as a direction how to find their verdict. The court took time to consider judgment, and on the 11th of last month judgment was delivered, the lord chief baron and Mr. Baron Bramwell being of opinion that the rule ought to be discharged, and Mr. Baron Channell and Mr. Baron Pigott thinking the rule for a new trial should be made absolute. Mr. Baron Pigott, the junior judge, having, according to the practice in such cases when the court is divided in opinion, withdrawn his judgment, the majority was left with the defendants, and the rule discharged accordingly. The crown availed itself of the rules made on the 4th of November, (as stated above,) and gave notice to the defendants of their intention to appeal, and the hearing of that appeal was fixed for to-day.

The attorney general, the solicitor general, the Queen’s advocate, Mr. Locke, Q. C., and Mr. Thomas Jones appeared for the crown; and Sir Hugh Cairns, Mr. Mellish, Q. C., Mr. Karslake, Q. C., and Mr. Kemplay for the defendants.

Sir Hugh Cairns said that he had a preliminary objection to make which affected the jurisdiction of the court to hear the appeal. The court of exchequer, after having heard the arguments upon the rule, were equally divided in opinion, but the junior judge yielding, according to the practice upon such occasions, the rule was discharged, and the proceedings in that court upon the information brought to a close. The crown had served the defendants with notice of appeal, and the question now arose under what authority was that appeal brought. Before the common law procedure acts there could have been no such appeal, as those acts apply only to personal actions commencing by writ of summons. It is said that the appeal lies under a general rule or order of the court of exchequer made on the 4th of November last year, upon an application by the crown before the rule nisi in the case had been granted. Rules first and second he would read, and call attention to rule three, which stated, “The court of error, the exchequer chamber, and the House of Lords shall be courts of appeal for this purpose.” It might be remarked that it was to be regretted that a little more consideration had not been bestowed upon the rules. It was obvious that there had been an entire overlooking of what the meaning of the term “court of error” in the common law procedure act of 1854 was. The section in that act supposed to be analogous to the rule three reads thus: “The court of error, the exchequer chamber, and the House of Lords shall be courts of appeal for the purpose of this act.” The rule says, “The court of error, the exchequer chamber, and the House of Lords shall be courts of appeal for this purpose”—viz., for the purpose of the appeal before mentioned. The clause was utterly unmeaning so applied—that is, that that part of the clause which contained the term “the court of error” in the common law procedure act has had a meaning quite different from the term “exchequer chamber,” and a most intelligible and necessary meaning; for the common law procedure act applied not merely to the superior courts at Westminster, but to the courts of Lancaster and Durham, and might be made applicable to other inferior courts of record. As to those inferior courts the court of Queen’s Bench was the court of error, and therefore the common law procedure act said, “the court of error, the exchequer chamber, and the House of Lords,” as the case might be, “for the purposes of this act,” which for all those various purposes shall be the court of appeal, but in this rule it was for the appeal mentioned in the clause immediately before. “The court of error” could have no meaning, introduced as it was into the third rule. Sir Hugh, having read all the above rules to the court, continued: It might be that the court of exchequer had power by a general order to create a new court of appeal, to give new rights to suitors with regard to appeal which they never had before, to order what should or should not be done by the court of appeal and by the House of Lords, and to confer upon the House of Lords and upon the court of Queen’s Bench the powers which were proposed to be conferred by those rules. All that might be so, but he (Sir Hugh Cairns) would like to see the authority, for he supposed no person would say that without parliamentary authority that was a power which could have been exercised. The Queen’s remembrancers act, the 21st and 22d Victoria, cap. 21, was an act to regulate the office of Queen’s remembrancer, and to amend the practice and procedure on the revenue side of the court of exchequer. It recived that a certain act had been passed with regard to the office of remembrancer, &c., and then went on to say:

“And whereas it is expedient further to regulate the said office and to make other provision in relation thereto, and to the precedure on the revenue side of the said court.” Of course, the preamble could not restrain the act of Parliament if there were express provisions afterwards going beyond it; and so far as there were express provisions going beyond the preamble they would be quite intelligible, and not at variance with what might be expected; but where there were no express provisions going beyond the preamble, then the preamble was for the purpose of the act to regulate the precedure on the revenue side of the court of exchequer. Passing at once to the 9th clause, it runs thus:

“Section 222 of the common law procedure act, 1852, for the amendment of defects and errors in any proceedings in civil cases, and concerning the costs and terms of such amendment, shall extend to all suits and proceedings on the revenue side of the court of exchequer.”

Then follows the 10th section:

“In any suit or proceeding on the revenue side of the court of exchequer the parties may at any time before judgment, by consent and order of a judge, state any question or questions of law in a special case for the opinion of the court, without pleadings, and upon judgment thereon error may be brought as on a judgment in a special verdict, unless the parties agree to the contrary; and the proceedings for bringing a special case before the court of error shall, as nearly as may be, be the same as in the case of a special verdict, and the court of error shall either affirm the judgment or give the same judgment as ought to have been given in the court in which it was originally decided, the said court of error being required to draw any inferences of fact from the facts stated in such special case which the court below ought to have drawn.”

This section, continued Sir Hugh, was an incorporation of two sections of the common law procedure acts—the one, section 42 of the act of 1852, and the other, section 32 of the act of 1854. Parliament thus treats the court of exchequer as one court, and the court of appeal or the court of error as the other. The legislature confers on the suitors the right of bringing error upon a special case before the court of error, and it points out what the court of error shall do with reference to that case. The 11th clause provides that, in the absence of “any agreement as to the costs of the special case, the costs shall follow the event.” Sir Hugh Cairns then read the subsequent sections, and, coming to the 18th and following sections, said that he found the provisions of the common law procedure act, 1852, as to error in the proper and strict sense of the term, the proceedings which formerly commenced by writ of error, and those provisions had been adopted and applied by Parliament to the revenue side of the court of exchequer. The 18th section of the Queen’s remembrancer’s act stated that no judgment on the revenue side of the exchequer should be reversed or avoided unless error be commenced or brought and prosecuted with effect within six years, with a proviso with regard to parties under disability. That section answered to the 146th and 147th sections of the procedure act of 1852. The 19th section was:

“A writ of error shall not be necessary or used in any suit or proceeding in error on the revenue side of the court of exchequer, and the proceeding to error shall be a step in the cause, and shall be taken in manner and subject as to such terms and conditions as to giving bail,” &c.

That was the same as the 148th section of the procedure act, with a special interpolation authorizing the barons of the exchequer to make a rule as to giving bail or surety. Then, the 20th clause was that any party might tender a bill of exceptions on a trial arising on the revenue side of the court of exchequer, and the like proceedings might be taken as between subject and subject. Up to this point the legislature had taken up every proceeding with regard to the courts of error, minus one—all but that one proceeding which the procedure act, 1854, provided in the event of rules for new trials being refused or being made absolute by the court. Now, the 26th section enacts:

“It shall be lawful for the lord chief baron, and two or more barons of the court of exchequer, from time to time, to make all such rules and orders as to the process, practice, and mode of pleading on the revenue side of the court, and as to the allowance of costs, and for the effectual execution of this act, and the intention and objects thereof, as may seem to them necessary and proper; and also from time to time, by any such rule or order, to extend, apply, or adapt any of the provisions of the common law procedure act, 1854, and any of the rules of pleading and practice on the plea side of the said court, to the revenue side of the said court, as may seem to them expedient for making the process, practice, and mode of pleading on the revenue side of the said court as nearly as may be uniform with the process, practice, and mode of pleading on the plea side of such court.”

The act was divided into two parts. Referring to the first part, power was given to three or more of the barons to make rules. It did not require the whole court. The part of the court could not be greater than the whole What was the meaning of the first part of the section? That they (the barons) might regulate the internal arrangements with the four corners of their own court; they were absolute as to the process, practice, and mode of pleading; they could not create new courts; they could not go outside their own court, and give to suitors rights external to their court; they could not say they ordained that the privy council, the House of Lords, and the exchequer chamber should hear appeals from their own court. Their jurisdiction might be termed territorial; they were masters at home, and there only. After discharging their duties in their own court, in hearing and disposing of a case, they were functi officio; and as to the present case, it had escaped from them, and there was an end to their control over it, as over all the cases in this court in a similar position. There was a matter, looking at the outside of the court, upon which they might make a rule, because the act of Parliament had provided for error. It had contemplated bail in error—error shall be a stay of proceedings upon bail being given as the barons of the exchequer should order. But they could not make rules as to who shall have error and who not, and where the error should be heard, Now, take the words in the second part of the section, “and also from time to time by any such rule or order” (that meant a rule or order made by the majority of the court) “to extend, apply, and adapt any of the provisions of the common law procedure acts to the proceedings on the plea side of the court to the revenue side of it.” To what were they to extend, apply and adapt? Why, to the revenue side of their own court. Take the words following on in the section:

“As may seem to them expedient for making the process, practice, and mode of pleading on the revenue side of the said court as nearly as may be uniform with the process, practice, and mode of pleading on the plea side of such court.”

In the rules made prior to the 4th of November, 1863, every stage in a suit is taken up step by step, and is dealt with with extra care and propriety, and great attention was paid to the power and jurisdiction given to the court, but on the 4th of November, 1863, contrary to everything that had ever been done before, legislation was taken up by the court, and those provisions laid down under the guise of rules which might be introduced into an act of Parliament, but which could not find their justification in any authority short of an act of Parliament. Was it the practice or pleading or mode of proceeding in the exchequer to say that a suitor in that court, against whom a decision had been pronounced, should have an appeal to another court, and the exchequer to say what that other court shall be? The defendants had the verdict, and the order of the court discharging the rule obtained by the crown, and all they had to ask of the exchequer was for the performance of the ministerial act of entering up judgment, which in strictness could not be stayed by any of the after proceedings. They were now summoned before this court to show cause why their verdict should not be reversed. It was a misconception for the crown to suppose that there was in this case any appeal, and the defendants now asked to have the case struck out of their lordships’ paper.

The Attorney General, on behalf of the crown, said if the legislature had given the court of exchequer power to make the rules, there was nothing extraordinary in the rules made. The second part of the 22d section gave the barons of the exchequer power to extend the provisions of the procedure acts to the matter now before the court, and also from time to time by any such rule or order to extend, apply, or adapt any of the provisions of the common law procedure acts to the revenue side of the court. Now, what was it that Parliament had authorized to be done? Not that the court of exchequer should legislate by giving jurisdiction to courts of appeal, or creating new courts of appeal, but to extend, adapt, or apply any of the provisions contained in certain acts which Parliament had already passed, and which were there mentioned, to the revenue side of the court, and the sole question was whether that which had been done was or was not an extension or application of certain provisions of these acts to the revenue side of the exchequer. If it be that, then it was clearly within the powers granted by Parliament. Some of the observations on the other side depended upon the assumption that within the meaning of the act of Parliament procedure in error from the court of exchequer was no part of the process, practice, and pleading of the revenue side of that court. Procedure in error was and must be intended to be within the meaning of those words. The formula to introduce the first common law procedure act runs thus: “An act to amend the mode of process, practice, and mode of pleading in the superior courts of common law at Westminster,” and so on. The preamble was, “Whereas the process, practice, and mode of pleading in the superior courts of common law at Westminster may be rendered more simple and speedy, be it enacted,” &c. The whole of the clauses in that enactment are declared by that recital to be enacted for the purpose of rendering more simple the process, practice, and mode of pleading in the superior courts at Westminster, an expression which was intended to comprehend all proceedings in error, though those proceedings might be carried to the House of Lords, which was not itself a superior court of common law at Westminster. The clauses as to error are from 154th to the 166th of the common law procedure act, 1852, and under that designation of “the process, practice, and mode of pleading in the superior courts of common law at Westminster” all the subject-matter of clauses which must be referred to were included. The first clause on error is the 148th; the 154th section speaks of a certain memorandum alleging error which is to be entered, and the form in which that was to be done. Then the 155th section enacts that the judgment roll is to be brought into court instead of the transcript; the record which passed through the courts of error as the record of the court from which the error is brought. It was the record of the court of exchequer which goes up to the court of error, and ultimately the court of exchequer would enter up the judgment awarded. The 156th clause enacts:

“That courts of error shall have power to quash the proceedings in error in all cases in which error does not lie, or when they are taken against good faith, or in any case in which proceedings in error might heretofore have been quashed by such courts, and such courts shall in all respects have such jurisdiction over the proceedings as over the proceedings in cases commenced by writ of error.”

Other sections were read by the learned attorney general, but no comments were made upon them. He then pressed their lordships to consider the 155th, 156th, and 157th sections, which related to the manner in which the case was to be brought into error, whether the exchequer chamber or Parliament, and there to be dealt with in error, and to the manner in which the court of error was to give its judgment, and the effect of that judgment when given, and the power which the court of error was to exercise, and that was part of the course of procedure introduced by the act for the purpose, as recited in the preamble, “of amending the process, practice, and mode of pleading in the superior courts of common law at Westminster;” and it was plain that a procedure before the court of error in Parliament, where the record was brought from one of the superior courts at Westminster, was regarded within the meaning of those acts as part of “the process, practice, and pleading of the superior courts.”

Lord Chief Justice Erle.—Will you forgive me for saying that a writ of error was heretofore a new action in law? Section 148 bears on this—“A writ of error shall not be necessary or used in any cause, and the proceeding to error shall be a step in the cause.”

The Attorney General said he had not intended to overlook that clause, and it was very important that its effect should be properly considered. The words, “the proceeding to error shall be a step in the cause, and shall be taken in manner hereafter mentioned,” were a clue to the whole matter, and confirmed what he (the attorney general) had stated, that it is regarded as being in a certain sense a proceeding in the court and in the cause, although, for the purpose of correcting the error of the court in the cause, the record of that court was brought up before a superior tribunal, and then the error corrected and the record returned with the correction made; but it was still a cause such as it was before—a cause on the revenue side of the court of exchequer, a cause on the plea side, or a cause in the Queen’s bench. It was still a matter belonging to the courts of common law, and it was not because subjects got justice done by the correction of their errors that it therefore ceased to be of that nature within the meaning of the act. A proceeding in error was a step in that cause, and that reconciled the whole with the preamble, and showed that the legislature did not stultify itself when in the act it spoke of amending the process, practice, and pleading in the superior courts of common law at Westminster. It always was, from first to last, a record depending in the court of exchequer, and this was only a particular manner which Parliament had pointed out of making it a right record. With regard to the 19th clause of the Queen’s remembrancer’s act, that, upon examination, would prove very fatal to the arguments used upon that act by his learned friend Sir Hugh Cairns. It said that “a writ of error shall not be necessary or used in any suit or proceeding in error on the revenue side of the court of exchequer, and the proceeding to error shall be a step in the cause, and shall be taken in manner and subject to such terms and conditions, as to giving bail or security, as may be directed by any rule or order made by the barons under this or any other act or acts of Parliament authorizing the same, provided that nothing herein contained shall invalidate any proceeding already taken by reason of any writ of error issued before the commencement of this act, or before such rules and orders came into effect.” This was an independent and substantive enactment, and made no reference whatever to the common law procedure act of 1852, and, but for the orders made under the authority now disputed—the authority of the 26th section—by the court of exchequer, would not be applicable to a writ of error under the 19th section. The section distinctly recognizes the proceedings in error on the revenue side as being a step in the cause, and afterwards, in the 26th section, words are found saying that the provisions of the common law procedure act may be extended by the court to the revenue side of the court.

Lord Chief Justice Cockburn. This is not a proceeding in error that we are dealing with now; it is a proceeding by way of appeal. The 19th section does not apply at all to the proceeding before us now.

The Attorney General. It will assist us in seeing the construction to be placed upon the power which we find in the 26th section. Now, the court of exchequer have considered that the power was communicated to them. The learned attorney general here remarked upon the rules made by the court of exchequer in June, 1860. By the 101st the court ruled thus: “The several provisions contained in the 154th, 155th, 156th, and 157th sections of the common law procedure act, 1852, when applicable, shall extend and be applied in like cases on the revenue side of the court;” the 103d also extends sections 159 to 166, and it was for that reason, said the attorney general, I read to your lordships the 155th, 156th, and 157th sections of the common law procedure act, 1852, which relate to the mode in which error is to pass through the court of exchequer chamber and the House of Lords, what is to be done in those courts and what is to be the consequence of what they do. There is not a word said in the Queen’s remembrancer’s act which says how the clauses 155, 156, 157 of the procedure act shall be applied; and, therefore, it would be entirely a casus omissus if it were not within the power granted to the court of exchequer in the 26th section. The exchequer, under this power, have declared the sections just mentioned, which relate entirely to what is to be done in the court of error, shall be applicable, and if it should be held by the present court that that was ultra vires, the crown must submit to that decision, and it must be taken as established that the old process of error must apply in every such case. It was a fallacy to say that the court of exchequer had taken upon themselves to legislate. The court of exchequer had interpreted the powers which Parliament had given to it to extend quoad hoc, to enable it to say that henceforth these provisions of the common law procedure acts were to be applicable to causes upon the revenue side of the court of exchequer. Apart from whether there is any obstacle to that being done, the thing is to be understood that those particular clauses which relate to the subject are merely transcripts from the common law procedure act of 1854. Looking at and examining the clauses, (the 35th in particular,) it will be seen how impossible it is to separate these matters from the procedure of the court; of exchequer itself. The 35th section enacts, “In all cases of motions for a new trial upon the ground that the judge has not ruled according to law, if the rule to show cause be refused, or, if granted, be then discharged or made absolute, the party decided against may appeal, provided any one of the judges dissent from the rule being refused, or, when granted, being discharged or made absolute as the case may be, provided the court in its discretion think fit that an appeal should be allowed,” with a proviso that there is to be no appeal upon matters of discretion as to where the verdict is against evidence. Every single condition, said the attorney general, there mentioned, is a condition to be fulfilled in the court of exchequer. It is in the court of exchequer that the motion is made, on the ground that the judge has not ruled according to law. It is in the court of exchequer that the rule to show cause is refused, or granted, or discharged, or made absolute. It is in the court of exchequer that the judges dissent, whose dissent must have given rise to the appeal, and a discretion is exercised by that court as to whether the court think fit that an appeal shall be allowed. Down to that point at all events, beyond the possibility of dispute, every ———that constitutes the locus standi of the appellant arises out of that which is matter of process and practice in the court of exchequer in the most exact and literal sense of those words.

Lord Chief Justice Cockburn. What strikes me most forcibly, and presents to my mind the most serious difficulty in the matter, is this: if it was intended to give an appeal, as the legislature clearly did give an appeal, in all civil causes from one of those three courts of exchequer chamber, why should not the legislature have expressly said so, and why should it have left it to that inferior tribunal to determine whether or not there should be an appeal from it to the court of exchequer chamber?

The Attorney General. Upon that and many other points the legislature thought fit to leave discretion to the court of exchequer to determine whether there were good reasons for or against extending any of the provisions of the common law procedure act to the cases on the revenue side of the court. If we had not the right of coming by way of appeal to this court upon a bill of exceptions, then it might have been said that it was a matter of substance and not of form—that it was not a mere question of the mode of procedure, whether we should come in the manner in which the common law procedure act in the 35th section had said that other people might come. But it becomes a different question the moment the legislature has said that we shall have the ordinary right of coming by bill of exceptions. Then, inasmuch as the common law procedure act only gives a different form of appeal by the 35th section upon matters of law, that is to say, the same matters which we should have a right to raise by a bill of exceptions, the common law procedure act having considered that the other form, that is, the power of appealing upon a motion for a new trial upon matters of law, would, in many cases, be a more convenient mode of arriving at the same result, and asserting the same right as the bill of exceptions, the legislature considered that in these revenue cases the subject or the crown had a right to appeal upon a matter of law. It did not think it necessary to determine upon the face of this act whether or no the alternative mode introduced in civil proceedings by the common law procedure act is the more convenient mode of procedure in raising the same question of law by way of appeal from a refusal of a rule or from granting one for a new trial, and whether it should be introduced in revenue causes, because there were peculiarities in the nature of revenue causes which it thought would make it expedient to leave a very large discretion to the court of exchequer to determine what part of the new provisions introduced by the common law procedure act should be applied to these causes; but if this portion of these new provisions was applied, that was not giving a right of appeal which was not existing before; it was merely applying for the same purpose other means as being more convenient means of raising the same question of law which had been raised by way of a writ of error. Where you have the right to go by a bill of exceptions, it is merely change of procedure to grant the appeal the benefit of which we are now claiming. Suppose your lordship had found in the act of Parliament clearly these words, “All the provisions of the common law procedure act of 1854 shall be applied to the revenue side of the court of exchequer,” would there have been the slightest difficulty in the interpretation of those words—would it not have been perfectly clear that those clauses were as capable of being applied to the revenue side of the court of exchequer as any others in the act? What is the meaning of applying and extending them to the revenue side? The meaning is, cases on the revenue side shall be subjected to and regulated by these provisions. After the attorney general had answered at some length several questions which had been put to him by the court, he went on to say that the 35th section of the act operated upon the cause while it was in every sense still in the hands of the court of exchequer. In all cases of motions for a new trial if certain things be done, the party decided against may appeal, provided any one of the judges dissent from the rule being refused, &c. The 37th, 38th, and 39th clauses all go on to state certain things which are to be done still in the court of exchequer. Could there be a doubt that the operation and incidence of clauses 35, 37, 38, and 39 are upon the cause, while it is still, to all intents and purposes, in the court of exchequer? The present case is a record from the court of exchequer from first to last; it never ceases to be so, and when final judgment is passed, execution will be by that court. It comes up from the court of exchequer to be reviewed and have the errors corrected, and in that sense only it is in the court of error.

Lord Chief Justice Cockburn. That is now equally so with regard to a bill of exceptions, and yet when a cause comes up upon a bill of exceptions it is governed by the practice of the court of error.

The Attorney General. Yes, but the record from first to last is a record of the court of exchequer, a record of a cause depending upon the revenue side of the court, which record, no doubt, is removed for a time from that court to the court of error, but it does not cease for an instant of time to be a record of the court of exchequer, from which it came, and to which it must return. Therefore I say, that if the act of Parliament had said these clauses shall extend to the revenue side of the court of exchequer, the working out of them would be the easiest thing in the world. In the first place, the thirty-fifth clause would attach, and that would tell us that when the record had at no time left the court of exchequer upon certain conditions to be determined in the court of exchequer, the right of appeal would arise. The two or three subsequent clauses say what, while it is still in the court of exchequer, is to be done, that right having attached. It is still, while in the court of exchequer, an appellable cause, and being so, certain things will determine whether the right has arisen or not, and what is to be done when it does arise to transmit the cause from the court of exchequer to the court above. Therefore, if the words had been “These clauses of the common law procedure act, 1854, shall extend and apply to the revenue side of the court of exchequer,” there would not have been the slightest difficulty in the interpretation of these words. The legislature authorizes the court of exchequer to extend, apply or adapt any of the provisions of this act, which, as I say, means “all or any,” to the revenue side of the court of exchequer, “and any of the rules of pleading and practice on the plea side of the said court to the revenue side of the said court, as may seem to it expedient for making the process, practice, and mode of pleading” (words which in this act mean procedure) “on the revenue side of the court, as nearly as may be, uniform with the process, practice, and mode of pleading on the plea side of such court.” Now the legislature had extended, by the common law procedure act, to the plea side of the court the procedure which is contained in the clauses which have been referred to, and which, in certain events, and upon certain conditions happening in the inferior court, give a right of appeal, and prescribe the mode in which that appeal shall be pursued, instead of a bill of exceptions. The object of the power given in the 26th section is to enable the court of exchequer to assimilate, as far as they think fit to do so, the whole of the proceedings in revenue causes to the proceedings upon the plea side, part of which under the provisions, part of which under the provisions and express enactments of the common law procedure acts are referred to as the part which the court of exchequer may think it expedient to adopt.

Lord Chief Justice Erle. It appears to me that the court of exchequer have the discretion to adopt so much of the common law procedure act of 1854 as they think expedient. As far as I can see, in the court of exchequer they have not given to them the right of stating a special case between the parties and going to a court of error.

The Attorney General. I think you will see that earlier sections of this act deal with matters upon which it was not thought expedient to give any discretion to the court of exchequer. It is in the 10th section.

Lord Chief Justice Cockburn. The 10th section gives it specially. That is what makes such an impression on my mind. The common law procedure act gives a right of appeal upon a special case; then the act goes on to give an appeal in the case of misdirection, &c. This act of Parliament introduces the enactment of the common law procedure act with regard to the special case, and I should have expected it to go on and say that there should be an appeal.

The Attorney General, having replied to two or three questions put by the court, went on to say that the legislature had said that in all matters of procedure the court of exchequer should be the judge. There might be difficulties as to some matters which have not been dealt with, and which required consideration by the court; and, with regard to those matters, the court of exchequer should judge whether it is expedient to go further than this act has gone towards a complete assimilation of the revenue side to the plea side of the court of exchequer. That court was to have the power to determine that; and for that purpose it might extend or apply all or any provisions of the common law procedure act; and, unless those provisions were such as in their nature could not be applied, if the court had said one of them should be applied, nobody could say that it had not been so applied by act of Parliament. My argument, continued the learned attorney general, comes to this: the whole is expressed by the words “extend or apply any of the provisions of these acts to the revenue side of the court.” Such words occurring in the act of Parliament itself could have been, without the least difficulty, applied in point of interpretation to the clauses of the act of 1854 with which we are dealing, the power being general, and the object being the assimilation of the two sides of the court. It was not meant so to limit the power given to the court by words not in the clause as to put it out of their power to do something without which it would be impossible that the two sides of the court could be thoroughly assimilated together. If the court should accede to this objection, we are, I apprehend, entirely remediless. But if, on the other hand, you should overrule it, there is another tribunal, which, if the objection is well founded, would of course be enabled to give effect to it. I do not mean to say that there is any reason, if you thought the objection to be well founded, you should not give effect to it; no doubt it would be your duty to do so; but if you were not well satisfied upon the matter, I think it would be some satisfaction to your lordships to know that the parties on the other side would have the same objection open to them in another place. The attorney general, in concluding his argument, said, what seems to me to cause the fallacy in my learned friend’s argument is the not attending to the distinction between the exercise of a parliamentary power to determine whether particular enactments of Parliament shall apply to a particular, class of causes or not, and the exercise of a power upon legislative subjects which undoubtedly would be beyond the proper jurisdiction of the particular court if Parliament had not given them to it.

Sir Hugh Cairns replied upon the attorney general’s argument; and at the termination of the reply,

The Attorney General claimed the right, on the part of the crown, to the last word.

After their lordships had consulted together,

The Lord Chief Justice Cockburn said: The court will hear you, Mr. Attorney General; but we wish to add, in order that this may not be considered as establishing a practice, that it is laid down in the case of “O’Connell and others against the Queen,” in the House of Lords, that it is not a necessary incident to cases in which the crown is defendant in error that the counsel for the crown is to have the last word. But we think it fully open to us in the exercise of our discretion to hear you; and, therefore, we will hear you in reply.

The Attorney General having been heard in reply,

The Court announced that judgment would be given on Monday morning.

The Alexandra Case.

The Exchequer Chamber, February 8.

Present: the lord chief justice of England, the lord chief justice of the common pleas, Mr. Justice Williams, Mr. Justice Crompton, Mr. Justice Willes, Mr. Justice Blackburn, and Mr. Justice Mellor.

The Attorney General vs. Sillem and others.

Their lordships, at the sitting of the court this morning, proceeded to give judgment upon the preliminary objection taken on Saturday by Sir Hugh Cairns, on behalf of the defendants, to the jurisdiction of the court to hear the appeal.

In accordance with the practice of the court the junior judge present first delivered judgment.

Mr. Justice Mellor said: After a careful consideration of the arguments which were urged by the attorney general in this case, and with every desire to support the validity of the rules made by the court of exchequer on the 4th of November last, under the provisions of the 22d and 23d Victoria, cap. 21, intitled “An act to regulate the office of Queen’s remembrancer and to amend the practice and procedure on the revenue side of the court of exchequer,” I am compelled to come to the conclusion that the rules 1, 2, and 3, under the authority of which the present appeal is brought, are not warranted by that statute, and that the claimants are entitled to succeed upon the objections which were made by Sir Hugh Cairns to our proceeding with the cause. In order to sustain the right to appeal, the attorney general was driven to contend that the legislature, in providing for the amendment of the “practice and procedure on the revenue side of the court of exchequer,” had incidentally delegated to the lord chief baron and two or more barons the power to determine whether or not an appeal should lie from a judgment of their own court, in certain cases, to the court of exchequer chamber and the House of Lords. The suggestion is of a power so unusual that it appears to me to require a clear and unambiguous expression of the intention of the legislature that such should be the case in order to support it. In the common law procedure act of 1852 the legislature, after making many express alterations and amendments in the process, practice, and mode of pleading in the superior courts of law, did, by section 223, confer upon the judges or any eight or more of them, of whom the chiefs of each of the said courts should be three, power from time to time to make all such general rules and orders for the effectual execution of the said act and of the intention and object thereof, &c., “as in their judgement might be necessary and proper;” but it gave no larger power than was necessary in order to enable the judges to make such rules and orders as were incidental to the complete carrying into effect of the alterations and amendments made by the legislature itself. The common law procedure act of 1854, which was for “the further amendment of the process, practice, and mode of pleading in and enlarging the jurisdiction of the superior courts of common law,” was framed upon similar principles, and by section 32 it expressly gave to litigants the right to bring error on a special case in the same manner as on a special verdict. By section 34, in case of rules to enter a verdict, or for a non-suit upon a point reserved at the trial, it gave the power to appeal against the judgment of the court in refusing, discharging, or making absolute such a rule. By section 35, in cases of misdirection, it conferred a similar right of appeal from the judgment of the court in the event of one judge dissenting, or the court, in its discretion, granting permission to appeal; and by section 36 it enacted that the court of error, the exchequer chamber, and the House of Lords, should be courts of appeal for the purposes of that act. By the 97th section it gave power to the judges, under the like conditions as in the procedure act of 1852, to make several general rules and orders for the effectual execution of the act. I have referred to several sections of the common law procedure act of 1854, because they contain the provisions which the court of exchequer has by the rules of the 4th of November assumed to extend, apply, and adapt, in order to provide a remedy by way of appeal to the particular circumstances of the present case. Upon the passing of the common law procedure act of 1852 the judges did make general rules regulating the pleading and practice of the superior courts of common law, in conformity with the power conferred upon them by that act.

In the act of the 22d and 23d of Victoria, chapter 21, now under consideration, the legislature appears to me to have proceeded on similar principles—namely, to have provided for certain cardinal alterations in the practice and procedure on the revenue side of the court of exchequer, and to have given new but special and limited rights of appeal to litigants, and to have left the details necessary to carry them into effect to the discretion of the judges of the court of exchequer. By section 10 the act enables litigants, by consent and by order of a judge, to state any question of law in a special case for the opinion of the court without pleadings, and upon a judgment thereon error may be brought as on a judgment on a special verdict, unless the parties agree to the contrary, and it provides that the proceedings for bringing such special case before the court of error shall be the same as in the case of a special verdict, except that the court of error is to be required to draw inferences of fact, which the court below ought to have drawn. By section 11 the costs of the proceedings are regulated. By section 12 an appeal is given to a court of error from a decision of the court of exchequer in appeals under the provisions of the succession duty act, 1853, and by section 13 it is expressly enacted that such appeal shall lie to the court of error in the exchequer chamber, and that the decision of the said court of error shall be subject to appeal to the House of Lords. By section 15 further provision is made for bringing error on special cases to be stated with reference to legacy duty, and by section 16 the powers of the 1st of William IV, chapter 22, and sections 46, 47, 48, and 49 of the common law procedure act, 1854, are expressly incorporated into that act. By section 19 it is expressly provided that a writ of error shall not be necessary, and that the proceeding to error shall be a step in the cause. By section 20 power is expressly given to either party to tender a bill of exceptions on the trial of any issue, and section 21 provides for the costs of all suits, informations, and other proceedings. By these sections a power to state a special case, a power of appeal in certain cases, and a power to each party to tender a bill of exceptions on the trial, are carefully and specially provided for, but no appeal is given against the judgment of the court on granting, refusing, making absolute, or discharging a rule for a new trial, or to enter a non-suit, or a verdict upon a point reserved at the trial. There may be, and probably are, considerations which might render such a power inexpedient in revenue suits, and it can scarcely be imagined that the propriety of giving such a power escaped the consideration of the legislature when the special provisions above referred to were framed. The omission of such a power, while other provisions are made for appeal and writs of error, leads me to the conclusion that this larger power of appeal was intentionally omitted from the act. The answer attempted to be given to this view is, that by section 26 power is given to “the lord chief baron and two or more barons,” not only to make rules and orders as to the process, practice, and mode of pleading on the revenue side of the court for the effectual execution of the act, but also “from time to time, by any such rule or order, to extend, apply, or adapt any of the provisions of the common law procedure acts of 1852 and 1854, and any of the rules of pleading and practice on the plea side to the revenue side of the said court as may seem to them expedient for making the process, practice, and mode of pleading on the revenue side of the court as nearly as may be uniform with the process, practice, and mode of pleading on the plea side of the said court.” It is argued that this clause gives an absolute discretion to “the lord chief baron and two or more barons” to incorporate with the act under consideration any provision of the two common law procedure acts of 1852 and 1854, whether it gives new remedies to the subject, or enlarges the jurisdiction of the courts, or gives a new authority to the court of error in the exchequer chamber and to the House of Lords, or only alters or amends the process, practice, and mode of pleading in the superior courts of common law. Surely it is more reasonable to consider that a power which is to be exercised “from time to time” is more applicable to the extension, application and adaptation of such provisions of the common law procedure acts as refer to process, practice, and pleading in their ordinary sense, and which may well be altered and amended from “time to time,” than to provisions which confer new remedies and enlarged jurisdiction. This is made more apparent when it is considered that the reference to the provisions of the common law procedure acts is immediately followed by the words, “and rules of pleading and practice on the plea side of” the said court as may seem to them expedient for making the process, practice, and mode of pleading on the revenue side of the said court as nearly as may be uniform with the “process, practice, and mode of pleading” on the plea side of the said court. I can readily understand that the legislature may have intrusted “to the lord chief baron and two or more barons” power to make rules and orders, and to apply and adapt such provisions of common law procedure acts and such rules of pleading and practice as affect “process, practice, and the mode of pleading,” so as to carry into effectual operation the alterations in the practice and procedure of the revenue side of the court of exchequer introduced by the act. But I cannot understand the policy of intrusting to the lord chief baron and two or more barons of that court the power to determine whether or not the court of error in the exchequer chamber and the House of Lords shall have jurisdiction to entertain an appeal against a judgment of the court of exchequer in granting, or refusing, or discharging a rule for a new trial. The limited power to make rules and orders conferred upon the judges by the common law procedure acts required for its exercise a quorum of eight, of which the three chiefs of the courts were to be members; but, according to the argument of the attorney general, the present act has conferred this most unusual and unprecedented authority to legislate for the court of error and the House of Lords upon a bare majority of the barons of the exchequer. I cannot adopt that view; and inasmuch as I cannot consider the rules of the 4th of November as warranted by the statute 22d and 23d of Victoria, I come to the conclusion that we have no jurisdiction to proceed with the appeal, and that it must therefore be dismissed. If I am wrong in the opinion I have formed, and the rules are authorized by the statute, the House of Lords will, by virtue of the very rules in question, have power to give the judgment which we ought to have given.

Mr. Justice Blackburn.—In this case the defendant in a case on the revenue side of the court of exchequer has obtained a verdict at the trial; a rule to set aside that verdict and grant a new trial on the ground of misdirection has been obtained in the court of exchequer, and, after argument, discharged. The attorney general has come to this court, treating it as a court of appeal, from the court of exchequer on this matter, with the object that we should inquire into the grounds of the decision; and, if satisfied that the court of exchequer ought to have made the rule absolute, that we should now do so, and set aside the verdict obtained for the defendants. The defendant has objected to our jurisdiction to entertain the cause, contending that we are not a court of appeal from the exchequer on this matter; that the decision of the court of exchequer is final, and that he has a right in point of law to retain his verdict undisturbed. I am, I think, as a judge, bound to form my opinion on this as a matter of law, and to deliver judgment according to what I think, without inquiring whether the result as affecting this particular case is satisfactory or not; and after considering the case carefully, I have come to the conclusion that the defendant is right on this point, and that we have no power to interfere with the verdict. The whole question depends upon the construction of the 22d and 23d Victoria, cap. 21. That act does not itself give the power of appeal, but it contains a section (the 26th) which gives power to the lord chief baron and any two or more barons of the court of exchequer from time to time to make all such rules and orders as to the process, practice, and mode of pleading on the revenue side of the court, and as to the allowance of costs, and for the effectual execution of this act and the intention and objects thereof as may seem to them necessary and proper; and also from time to time by any such rule or order to extend, apply, or adapt any of the provisions of the common law procedure act, 1852, and the common law procedure act, 1854, and any of the rules and practice on the plea side of the said court to the revenue side of the said court as may seem to them expedient for making “the process, practice, and mode of pleading on the revenue side of the said court as nearly as may be uniform with the process, practice, and mode of pleading on the plea side of such court.” In intended pursuance of this power rules have been made in last Michaelmas term, of which the following seem to me material: By the second rule an appeal is allowed in such cases as the present; by the third, the exchequer chamber and the House of Lords are constituted courts of appeal for that purpose; by the seventh, it is prescribed that the court of appeal shall give such judgment as ought to have been given in the court below; and by the eighth, the court of appeal shall have power to adjudge payment of costs and to order restitution, and they shall have the same powers as the court of error in respect of awarding process and otherwise. If the chief baron and barons of the exchequer had power given them by the statute to make enactments to the effect just stated, then, no doubt, the appeal lies, and we ought to hear it. Each of the rules I have above quoted is a transcript of a provision in the common law procedure act, 1854, by sections 35, 36, 41, and 42, of which act these powers are given to the House of Lords and the court of exchequer chamber in all civil suits between subject and subject, including those that originate on the plea side of the exchequer, as well as those originating in the Queen’s bench, common pleas, common pleas of Lancaster, and the other courts of record to which the common law procedure act of 1854 applies. And if the true construction of the 22d and 23d of Victoria, cap. 21, sec. 26, is that the lord chief baron and two or more barons can apply any of the provisions of the common law procedure act, 1854, to all suits which originated on the revenue side “of the court of exchequer at all stages after the litigation has passed out of the court of exchequer, as well as while still in the court of exchequer, no doubt that power has been exercised. Certainly a power so extensive as this is not one which one would expect to find given to the judges of any court. The regulation of the process, practice, and mode of pleading in any court involves a great many questions of detail, and therefore may properly be delegated by the legislature to some one; and when it is delegated at all, the power is naturally confided to the judges of that court. But it seems highly improbable that the legislature should intend to delegate to any one a discretionary power to determine whether the exchequer chamber and the House of Lords should or should not have a new jurisdiction which they had not before to prescribe to the exchequer chamber and the House of Lords how they should exercise that jurisdiction, and to give to the exchequer chamber and the House of Lords new powers of awarding process to enforce this jurisdiction. Whether these things should be done or not is a question of principle which the legislature ought to determine for itself. Still less likely is it that they would delegate this power to the judges of one court to be exercised from time to time. It was perfectly competent for the legislature to do so; but, before construing the act in such a way as to produce this startling result, we ought to see the intention to do so pretty clearly expressed. Now, section 26, in terms, gives power to the barons to apply the provisions of the two common law procedure acts to the process, practice, and mode of pleading on the revenue side of the court of exchequer, with the purpose of making it as nearly as may be uniform with the process, practice, and mode of pleading on the plea side of the court of exchequer. These words seem to me to show an intention to confine the power to the process, practice, and mode of pleading in that court, and while the cause is before that court. I do not think that, in any fair and ordinary construction of language, the judgment of the House of Lords reversing or affirming the judgment of a court below, or the award of process by the House for the purpose of enforcing their judgment, can be considered part of the process, or practice, or mode of pleading of that court below. I think that it would be a great strain upon the words to construe them so as to include such matters in them; and, as I have already said, I think that it is so improbable that the legislature meant to include them in the power given to the lord chief baron and the barons that the intention ought to be clearly shown.

Hitherto I have only referred to the 26th section, and reasoned as to its construction from the terms of that section alone; but when we look at the whole act of the 22d and 23d of Victoria, chap. 21, and construe section 26 as a part of the whole statute, 1 think that, according to the ordinary rules of construction of a statute, it becomes clear that the legislature did not intend to give the power of appeal in cases on the revenue side of the exchequer. Before the common law procedure act of 1852 a writ of error might issue to remove the record of a cause in the exchequer, whether it was on the plea side or the revenue side of that court; and the court of error might examine into any errors apparent on the record, but nothing else. In suits between subject and subject a further power had been given to tender a bill of exceptions and thereby to annex to the record a statement of the direction of the judge to the jury, and thereby to bring any alleged misdirection before the court of error; but that power had not been given in suits in which the crown was a party, and, consequently, not in proceedings on the revenue side. The act of 1852 made many alterations in the form of the writs of summons and execution, and other matters, properly called process, and also in the practice and also in the mode of pleading; and it also contained a series of enactments, beginning with section 146, as to error, and the manner in which, after error has been brought, the proceedings are to be conducted in the court of error. The attorney general argued that, because the preamble of the act of 1852 recited that it was expedien tthat the process, practice, and mode of pleading of the superior courts should be rendered more simple and speedy, therefore the enactments relating to error in that act must relate to process, practice, or mode of pleading. I think Sir Hugh Cairns gave the true answer when he said that in all acts were many provisions going beyond the scope of the preamble, which merely pointed out the principal object of the legislature. He also argued that there was a necessity for the more extensive construction of section 26, in order to work the provisions as to the mode of proceeding in error. I think this is not so. In the 22d and 23d of Victoria, cap. 22, by section 18 the legislature made an enactment equivalent to sections 146 and 147 of the common law procedure act of 1852; but when they come to section 148 there is a difference made which I think is very important. By the common law procedure act, 1852, section 148, it is provided that “a writ of error shall not be necessary, or used in any cause, and the proceeding in error shall be a step in the cause, and shall be taken in manner hereinafter mentioned.” The 19th section of the 22d and 23d of Victoria is in the same precise words till it, comes to the manner in which error shall be taken—that is, to be “in manner and subject as (a word, I presume, inserted by a clerical error) to such terms and conditions as to giving bail or security as may be directed by any rule or order made by the barons under this or any other act,” &c. It seems to me that the express power here given to the barons to regulate by rule the manner in which error shall be taken, not only puts an end to the last-mentioned argument of the attorney general, but also affords a strong argument that the legislature did not suppose that the power to do so was included in the power given by section 26. Again, the common law procedure act of 1854, by section 32, allowed error to be brought upon a special case. The legislature in the 22d and 23d of Victoria, chapter 21, section 10, enacts the same thing in so many words, and in section 20 the power to tender a bill of exceptions is expressly given. We find the legislature providing by express enactment for error on a special case, for making error a step in the cause, and for a bill of exceptions. The power of appeal was created by the act of 1854, section 35, and those following it. It is a different kind of proceeding from error, and it is nowhere expressly mentioned in the 22d and 23d of Victoria, cap. 21. There were four matters, and, as far as I know, only four, in which the mode of questioning in a court of error the decision of the exchequer on a matter arising on the plea side differed from the mode of questioning its decision on a matter arising on the revenue side. When the legislature expressly enacted that three of those shall apply to the revenue side, it seems to me to afford a strong argument that the legislature did not intend the fourth—namely, the power of appeal—to apply to them. Expressio unius est exclusio alterius. Surely, the spirit of that maxim applies here? It was said by the attorney general, when pressed by this argument, that it might be that the legislature thought it quite certain that error on a special case was expedient, and therefore enacted expressly that it should be, but that they were not sure whether the power of appeal would be expedient, and so delegated to the lord chief baron and the barons the power to determine that for them. Such humility on the part of the legislature as this, amounting to an admission of their incompetency to determine a point, not of detail, but of principle, is inconceivable; but I cannot think it is so probable as to justify me in straining the words of section 26 out of their ordinary sense for the purpose of making them express such humility. It seems to me that a far more natural solution is afforded by what my brother Bramwell stated in the court below. It appears that the officers of the revenue thought that the power of appeal was inexpedient. It has been assumed rather hastily, both in the court of exchequer and in this court, that this was an unreasonable thought, and that when it was determined that a bill of exceptions might be tendered, it ought to have followed as of course that an appeal should be given; but it is to be recollected that revenue cases are confined to the court of exchequer, and that consequently the members of that court acquire an experience not possessed by the judges of the other courts; but the trials at nisi prius on circuit are now before any judges. It might, therefore, be reasonably expected that the comparatively experienced judge would readily reserve points for the more competent tribunal, and it might be thought that if an appeal were given wherever a point was reserved there would be delay and vexatious litigation, to the detriment of the revenue. Consistently with this, it might be thought that a bill of exceptions would seldom be tendered except on some point on which the opinion of the court of exchequer was already known, and which was of importance. I do not say that these suggestions are good, but only that they are plausible enough to make it far from improbable that the officers of the revenue had influence enough to cause the bill to be prepared with the deliberate intention not to give the power of appeal, However this may be, I think, for the reasons I have given, that the true legal construction of the act is not to give that power. Entertaining this view of the law, I am bound (with whatever regret as to this particular case) to say that I think that this court ought not to hear the appeal. I think, however, that we ought not to do anything which can in the least impede the taking of this appeal to the House of Lords. I think our judgment should be that the appeal be dismissed. If the attorney general is right in saying that we are bound to give the judgment which the court of exchequer ought to have given, the judgment I propose would be erroneous, and on appeal the House of Lords would set it right (as, on that supposition, the House would be bound to do,) and pronounce the judgment which this court ought to have pronounced.

Mr. Justice Willes.—I am of opinion that an appeal well lies in this case, and that the present appeal ought not to be dismissed. Of course, for the purpose of founding any proceeding by way of appeal against the judgment of one of the superior courts of law at Westminster, it is necessary to produce statutory authority, and I am of opinion that there is statutory authority for this appeal in the 26th section of the 22d and 23d of Victoria, cap. 21, and for the action which the barons of the court of exchequer have taken upon that section, by making the rule extending the power of appeal granted between subject and subject in the common law procedure act of 1854 to cases on the revenue side of the court of exchequer, as between the crown and the subject. Of course this question depends altogether upon the construction of that 26th section, and many objections have been taken to applying it to the support of the rule made in the court of exchequer in the present case. With respect to the objection, that that rule so construed would be a delegation of legislative authority, I think that must fail in the mind of any one who considers the numerous instances of similar delegation within the experience of us all. The course of pleading, for instance, in the courts which I may call courts of first instance, was always considered to be as much a part of the law of the land as any substantive rule for determining the right of property or any other rights, and it was always held that such a law could not be changed without the authority of Parliament; and yet the noble and learned framer of the act, known as Parkes’s act, the 3d and 4th of William IV, cap. 42, conferred upon the judges the power, in effect, of legislating with respect to such a portion of the law of the land. It is true that the power given in that act was subject to the rules being laid for a certain period before Parliament; but inasmuch as Parliament, without the crown, could not make a law, inasmuch as Parliament constitutionally could not give its assent to an act of Parliament, simply by having the paper upon which the bill was written or printed laid before it, and inasmuch as in form and substance the assent of the crown could only be given when both houses of Parliament were present, in effect, the power of legislating was given to the judges with respect to such portion of the law. I conceive that the right of appeal is no more important a part of the law, (and, indeed, it is less important,) because it is resorted to in rare cases, than the form of proceedings which take place every day in the superior courts, and by means of which the rights of subjects are ascertained and enforced. Now, after referring to such an instance as that, one is almost ashamed to refer to the numerous cases in which towns and other local communities are allowed to determine by the voice of a majority whether certain acts of Parliament for local government shall or shall not have power within the limits in which the inhabitants reside; and to make amends for referring to such an instance, I shall content myself for a proof that the delegation of legislative power is no objection with referring to the 228th section of the common law procedure act of 1852, by which her Majesty, in council, was authorized to direct that all or any part of that act of Parliament, making very great changes indeed in the law, should apply to all or any court or courts of record in England or Wales, and that without any authority of the House of Lords or the House of Commons. So much with respect to the delegation of legislative power. I shall now turn to the section itself, and endeavor to ascertain whether that section does delegate to the barons of the exchequer the power of making such a rule as they have made in the present case. I am of opinion that it does. Assuming that there is nothing in the objection that Parliament cannot delegate its authority to this extent, in which I think it is proved that there is nothing having in view the instances of the exertion of such a power to which I have referred, is there a delegation of such a power as has been exercised in the present case? At this stage of the argument I am entitled to assume, as was put by the attorney general in his argument, that instead of delegating the power to the court of exchequer, and the court of exchequer exercising such power, the legislature had made this enactment themselves, and then all I have further to do is to see whether the 26th section is large enough to cover the extent of the rule made by the court of exchequer in terms, assuming such a rule to have been made in the form of an enactment by the legislature itself.

Now, for the purpose of testing that, I must strike out the word “any”—“any of the provisions of the common law procedure act, 1852 and the common law procedure act, 1854,” and I must read, “such of the provisions of the common law procedure act, 1852,” and so on; and I must strike out “as may seem to them expedient,” because I am now assuming that it appears to the legislature to be proper, “as may seem to them expedient for making the process, practice, and mode of pleading on the revenue side of the court of exchequer the same as that on the plea side.” Well, then, if the enactment he “to extend, apply, and adapt such of the provisions of the common law procedure act of 1854,” which is the act with which we are dealing, as are proper for making the process, practice, and mode of pleading on the revenue side of the said court as nearly as may he uniform with the practice, process, and mode of pleading on the plea side of such court, to deal with such an enactment all you have to do is to ascertain whether the process, practice, and mode of pleading on the revenue side of the court do include proceedings by way of appeal on that side of that court. I own that, upon the best consideration which I can give to the matter, I am of opinion that they do, not only from one’s experience with respect to the practice of the court, which has always been considered to include error, and now appeals, but also upon the terms and out of the enactments of this act itself. First of all, with regard to the experience of us all, with respect to practice, (of course the mode of pleading is out of the question,) and I pass over process because it has a technical meaning, such as has been put upon it in Comyns’s Digest, title “Process;” it relates to writs, either original or of mesne process, judicial writs in the courts of record, or writs of execution, and I therefore do not place any reliance upon the use of the word “process;” but coming to “practice,” “practice” is not a term of art; “practice” is a word applying to all the proceedings by which a cause is brought to judgment and execution, and it is impossible to dispose of the subject of the practice of the court without disposing of all the steps which may be taken before the judgment of the court is carried into execution; and accordingly, looking at the question as a popular one, if I take up any of the recognized books of practice of these courts I find that one of the heads in such a work will be the head of “error.” Error will be considered, and now, since the recent alterations, appeal will be considered, otherwise such a work would be as it were maimed of an arm or a leg. A member of the practice of the court is the proceeding by which the judgment of the court may be stayed, and the execution of the court put off until it is determined whether the judgment pronounced by the court is right or not. The understanding to be gathered from works with respect to practice is this, that a proceeding by way of error or appeal is part of the practice on the side of the court in which the process originates. I think it necessarily must be so now, because we are all aware that no court possesses any jurisdiction over the subjects of the Queen without the writ of the Queen. Neither this court nor the court of exchequer has any power to proceed, unless upon the express authority of an act of Parliament, without the process of the Queen; and, accordingly, the jurisdiction of courts of error, before which appeals were formerly brought exclusively, was initiated by the Queen’s writ of error out of chancery. That is abolished, and the only process under which the courts act now, from the beginning to the end of any proceeding, is a process which issued out in the court of first instance—the execution, or the stay of execution, of which process is the object, of course, of every proceeding in error in any cause. In modern times an appeal has been substituted, as being found more convenient than a writ of error. The appeal takes the place of the writ of error, and, indeed, more peculiarly so, because appeal is only a proceeding in the court below upon whichever side the process is commenced. There is no record in the court of error; the appeal is a mere information, without any formal process to the court, which is substituted for the first court of what has taken place there, with a view to have a decision without being hampered by the technical forms which affected the proceeding in error. So much with respect to the meaning of the word “practice,” as understood in the profession. With respect to the act itself, I apprehend that, as was suggested on Saturday by my brother Williams, this 26th section is framed with express reference to the amendments in the law introduced by the common law procedure acts. As already pointed out, the first common law procedure act was founded upon the report of a commission to improve the process, practice, and mode of proceeding in the courts of common law at Westminster. The recital of the act is, that that was its object, and its only object, and that act includes proceedings in error. The second and third common law procedure acts followed. The second act is headed “An act for the further amendment of the process, practice, and mode of pleading in and enlarging the jurisdiction.” I need hardly observe that that latter clause applied only to the attempt which was made, and made to a great extent unsuccessfully by the framers of those two statutes to extend to the common law courts an equitable jurisdiction, and that it had nothing whatsoever to do with the proceedings in error or appeal. In truth, appeal was not an extension of jurisdiction, but only the substitution of a more convenient mode of obtaining the opinion of a superior court; and unless the legislature is to be considered as having stultified itself in the first common law procedure act, by reciting an improvement in the practice of the courts, and then proceeding to make various enactments with respect to error, not only affecting the courts of first instance, but affecting the courts of error also, and touching even the powers and jurisdiction of the House of Lords, I am at a loss to see why “practice” in the 26th section should not be construed to extend to the mode of taking the opinion of a court of error on appeal before the execution issues from the court in which the proceedings commenced; and I apprehend that that is quite as much a part of the practice of the court of first instance, as is in the case of those revenue proceedings, the trial of the issues arising on a record out of the court of exchequer in the court of nisi prius at the assizes, which we all know is a court whose jurisdiction is created in as different a manner, and is in itself in every way as distinct from the court at Westminster as is the court of exchequer chamber or the court of appeal.

It is said, however, that this construction is excluded by certain clauses of the act, and it is said that it is excluded by the fact of the legislature having given in certain cases a right of error and appeal, and having omitted the case in question, and by the supposed absurdity of the legislature intending to give a right of appeal in a case which it has not expressly mentioned. I apprehend, with the greatest deference to those who are of that opinion (and nobody has better learnt how necessary and how just that deference is than myself) that that argument may be retorted with double force upon those who assert that the right of appeal in this particular case is excluded by a right of appeal being given in the cases mentioned in the act. Because not only will this be found to be a case of appeal ejusdem generis, but it will be found that the cases in which appeal is granted by the legislature, first of all, are cases in which the special interference of the legislature was necessary, because under the 26th section such a power could not have been given; and, secondly, that, at least, one of those cases of appeal is a peculiar one, and belonging to the revenue jurisdiction only. Now, I may at once refer, in support of that suggestion, to the 15th section. That section gives an appeal in a case in which an appeal was never known before—not even known in those courts to which the act of 1854 in terms applied, because it gave an appeal upon a rule. It is unnecessary that I should say more than that, or go into any discussion of the form of proceeding under which the court of exchequer has revenue jurisdiction upon a rule. It is a summary process, without a writ, and it is enough to say that it is a case in which no appeal had ever previously been allowed, and therefore an appeal is granted, and granted distinctly in a case which goes far beyond any that was contemplated in the act of 1854. I rather collect from that that the legislature thought that appeal was a remedy which should be extended and enlarged. With regard to the other cases in which an appeal might lie under the common law procedure act, the first of them is to be found provided for in the 22d and 23d of Victoria, section 10, where I observe that the attorney general is included under the general expression of “the parties.” That was an appeal upon a special case agreed to between the parties, including the attorney general, on behalf of the crown. In such a case no intervention of the court was necessary; the crown is sufficiently protected by the attorney general having the power of preventing such an appeal by refusing to give his consent to the special case upon which it might be brought. The 17th section is a very remarkable one, as it appears to me, because before that statute, up to the act of the 2d and 3d of the Queen, cap. 22, no cause out of the exchequer could have been tried at nisi prius without a commission. That act abolished a commission in all cases between subject and subject. This act, by the 17th section, reduces the crown to the same condition as the subject in that respect, and it allows the justices of assize a distinct court from the court of exchequer to try revenue cases without any commission. The 19th section is one which requires a remark. It is the section abolishing a writ of error, and then it goes on to enact that “the proceeding in error shall be a step in the cause, and shall be taken in manner and subject as to such terms and conditions as to giving bail or security as may be directed by any rule or order made by the barons.” Why? Because the provisions of the common law procedure act, following the statute of Elizabeth, were not applicable to the case of the attorney general, because it was thought, no doubt, an absurdity that the attorney general should enter into a recognizance, or that any security should be given by him; and, accordingly, it was necessary that there should be rules by which the law applicable to parties should be modified, and that to me seems quite a sufficient reason why this provision as to the abolishing of a writ of error should be specially introduced into the act. And moreover, I think, with reference to the 27th section, that such a section as the 19th was necessary, because it enacts that “new or altered writs and forms of proceeding” shall be framed by the barons; but it does not give the barons a power which would include the abolishing of the Queen’s writ of error. The introduction of the 19th section appears to me to be fully explained in that way. Then comes the section with respect to a bill of exceptions, and that, of course, was necessary, because the right to a bill of exceptions is founded upon the statute of Westminster the second, and not upon the first or second common law procedure act, and, therefore, an express section was necessary. This being so explained, I apprehend that the introduction of such an enactment by the legislature strongly fortifies the position which I take, because it shows that the legislature intended to put the crown in the same condition as the subject in every respect in which that course could be taken. But now comes the question of an appeal upon a rule for a new trial, which may be without the leave of the court when it is divided, and without the leave of the attorney general. Why should that discretion be vested in the barons of the court of exchequer, and why should it be for them to say that appeal should lie in such a case? I own that I see no difficulty in answering that question, because I conceive that the appeal upon a special case after the argument of a new trial is only a more convenient mode of raising a question which could have been raised upon a bill of exceptions. Am I right in saying that you could raise under a bill of exceptions the sort of question which is desired, so far as I can judge from the proceedings, to be raised here? I am clearly of opinion that you can. It is said ordinarily that you cannot except to a non-direction—that is to say, to the judge not having directed upon a particular point. That is so ordinarily, no doubt; and, if it were not so, a judge could never select the point which he perceives to be the only real one in dispute, and leave that alone to the jury, disembarrassing their minds of that which has become immaterial for them to consider, because it has either expressly or tacitly been admitted. Such was the ruling of the House of Lords in a case which is cited so frequently—the case of “Anderson v. Fitzgerald,” (4 House of Lords, 484.) But it would be quite a mistake to suppose that if a judge, having omitted to state a proposition which ought to be stated in the affirmative or in the negative, states, or omits to state, a point of law to the jury so as that they may be misled as to the facts in the case, which it was material for them to consider, and counsel calls the attention of the court to that omission, and the judge declines to correct the impression which has been produced by the omission and by his silence upon the subject, it would be a mistake, I repeat, to say that a bill of exceptions may not be tendered. In order to tender a bill of exceptions upon an omission, the counsel must expressly call the attention of the court to it, and it must be the omission of a direction in point of law which induces the jury to look to facts which they ought to consider as irrelevant, or to omit from their minds facts which they ought to consider important. And such was the opinion of the judges in the recent case of M’Mahon against Leonard, (6 House of Lords, 996.) Mr. Justice. Wightman, in delivering the opinion of the judges in that case in the House of Lords, (page 996,) so laid down the law with the assent of all the judges who were then present; and I repeat, therefore, that those points which may be taken at the trial by a bill of exceptions, if the exceptions are properly framed, may be taken, and none other that I know of, upon the argument of such an appeal. If the statute with respect to bills of exceptions had directed, as we know it does in one part of the kingdom, that the exceptions should first be argued before the court of first instance, and should afterwards go to the exchequer chamber, this would be nothing more than in substance changing a proceeding by bill of exceptions, which is full of expense and technicality, into a simpler and more beneficial proceeding by way of appeal against the ruling of the court upon a point which might have been raised at nisi prius upon a bill of exceptions. The court of exchequer seems to me, therefore, in making this rule, to have been authorized by the 26th section, and to have kept strictly within its provisions; and the rule appears to me to be a rule with regard to the practice of the court, and not exceeding the jurisdiction which the legislature intended to confer upon the court of exchequer, to which exclusively are confided those complicated and unusual cases—proceedings in rem—questions that would not arise between subject and subject in the other courts. I think this appeal is competent, and that we ought to proceed.

Mr. Justice Crompton said: The question before us in this case is, whether the chief baron and three barons of the court of exchequer had authority, by a general rule made by them under the 26th section of the Queen’s remembrancer’s act, to give to parties litigant on the revenue side of the exchequer an appeal against the decision of the court upon a rule for a new trial upon matter of law arising at the trial. It was not contended on the part of the crown that any such appeal existed independently of that statute, nor was it, nor could it be, pretended that such right of appeal was directly given to the parties by that statute which regulates proceedings in error, and gives, in distinct and express terms the right of appeal in several cases where the legislature thinks it ought to exist. The attorney general was, therefore, obliged to insist upon a supposed delegation to the barons of the power of creating such appeal by virtue of the 26th section of the act. No doubt the legislature might, had it so pleased, have given such a power of creating such appeal to this court, and ultimately to the House of Lords, but it certainly would be a new and unusual course of legislation in creating a new statutory appeal. Parliament has frequently delegated powers as to pleading and practice, and has authorized persons interested in particular localities to adopt the provisions of particular acts of Parliament; but, as far as I know, this is the first time that a power of creating an appeal has been intrusted—if it has been intrusted—to the court from whose decision the appeal is to be; and the general rule that an appeal, the creature of a statute, must be very distinctly and unequivocally given, seems to me to apply still more strongly to the supposed power of creating such appeal. I cannot think that the power of creating such an appeal is given to the barons by the 26th section. In the earlier parts of the act provision is distinctly and expressly made creating appeals in some cases, and for regulations as to the matters of error and appeal where the legislature thought that such appeals should be made, and that such regulations were desirable; and in giving such appeals and making such regulations, and in introducing such provisions of the procedure acts, and in making them applicable to cases on the revenue side of the exchequer, they seem carefully to have abstained from giving the right of appeal from decisions of the court on motion, although such right of appeal is given expressly by the procedure act of 1854 in civil cases in the same set of clauses from which they selected some for giving rights of appeal in other cases. The legislature may possibly have thought it better not to give so much facility to appeals in cases for the breach of customs and excise laws as might operate as a temptation to parties to bring forward appeals in many cases for the purpose of delay and vexation, especially when the court peculiarly conversant with revenue matters had decided upon them. They certainly appear to have abstained, probably upon some such ground, from inserting provisions for such an appeal where we should have expected them to be found if so intended; and this makes me think it the less likely that they would delegate the power of creating such appeal to the barons. It was contended that the legislature, by the use of the words “process, practice, and mode of pleading” in the 26th section, must be taken to include the right to appeal, as those words are used in the preamble and in other parts of the procedure acts; and that, as the later procedure act contains provisions for appeals on motions, the words in question must be taken to have a statutory meaning, and to include therein such right to appeal, and that such right is either process, practice, or mode of pleading when used in the subsequent act. I agree, however, with Sir Hugh Cairns that it would be a very unsafe construction to infer from the preamble or recital of a statute that it contains all it refers to, and that it contains nothing more than what may be said to be included in the recital or preamble. As observed by Sir Hugh Cairns, it may contain all that is in the recital and preamble, and something more, as a right to a new statutory appeal. It seems to me that the 26th section refers to process, practice, and mode of pleading in the ordinary sense of those words, and that they cannot fairly be construed as intended to include the right of appeal, especially in a statute where various rights of appeal are given before by express words. The words following the first branch of the section give power “from time to time, by any such rule or order, to extend, apply, or adapt any of the provisions of the procedure acts, and any of the rules of pleading and practice on the plea side of the court to the revenue side of the court;” but this general power is qualified by words plainly applicable to the whole of the preceding powers as to adapting the provisions of the procedure act. Those words are, “as may seem to them expedient for making the process, practice, and mode of pleading on the revenue side of the said court as nearly as may be uniform with the process, practice, and mode of pleading on the plea side of such court.” The whole section seems to me clearly intended to give powers to make rules respecting process, practice, and pleading. It is analogous to the provisions in many cases for courts to make rules as to their own process, practice, and pleading. It refers to the rules of pleading and practice, and, as I think, to the provisions of the procedure act, so far as relates to process, practice, and pleading. The words “from time to time” appear to apply to cases like those where the courts are empowered to make rules for the purpose of pleadings, amendments, time for pleading, writs, processes, and the like, and not to be so applicable to the case of giving a new right of appeal, which I agree with the attorney general could hardly be intended to be given one day, and taken away or altered on another, as might well be the case with mere rules of practice or pleading, which might be found inconvenient, and altered again. Another argument urged upon us was, that as the bill of exceptions was given by the act, the appeal on motion was only a new kind of practice and mode of obtaining the same result. I cannot think that the giving a bill of exceptions to correct a mistake made at the trial by a single judge who may by the act in question be the judge of another court is at all the same thing as giving an appeal against the decision on motion of the court particularly conversant with matters of revenue; and though in many cases a question of law might be raised in both methods, they would be raised with very different incidents to the parties. The bill of exceptions, which could formerly be used only on writ of error, and since the procedure acts can only be used on suggestion of error, is an expensive and troublesome remedy, seldom resorted to except on important and fitting occasions; and it may well be that the legislature has given that remedy, and purposely abstained from encouraging appeals on the smaller matters of the breach of the excise and custom laws which so frequently come before the court of exchequer. There certainly has been some ground for complaining of the number of appeals which have been brought under the provisions of the procedure act from decisions upon motions in the common law courts; and from what passed in the court below there seems to have been some fear of the consequences of extending this provision to proceedings on the revenue side. It is sufficient, in my mind, as to this argument, to say that the bill of exceptions and the new appeal from decisions on motions is not the same remedy, nor can the one, I think, be fairly treated as process or practice by which to carry out the other. I think that the words “process, practice, and pleading,” in the 26th section, cannot, without great straining, be construed as delegating the power of creating a right to appeal. The right of appeal can hardly be process or pleading; and as to the word “practice,” I cannot help thinking that there is a great difference between the machinery of the appeal and the right of appeal. The former might with less difficulty be called “practice,” but I have great difficulty in seeing how the giving a right to appeal is “practice.” The power given to eight judges to make pleading and practice rules in ordinary actions could never have been imagined to give any power of creating an appeal; and it seems to me, from the reference in the Queen’s remembrancer’s act, section 26, to those prior rules, and from the qualifications limiting the power of adopting the provisions of the former acts to the purposes of practice, pleading and process, and from the other reasons I have referred to, that I cannot say that the legislature has by the 26th section delegated to the barons any such power as that contended for. I think, therefore, that there is no right to appeal from the decision on motions of the court of exchequer in cases on the revenue side of that court, and consequently that we have no jurisdiction to interfere with the decision of the court of exchequer in the present case. I agree entirely with my brothers Blackburn and Meller, that if we are wrong our error may be set right by the House of Lords, who, if they are bound by the rule of court of the barons, are directed by the same rule to give the judgment that we ought to have given.

Mr. Justice Williams said: I am of opinion that we ought to hear this appeal because I think the barons of the exchequer had power under the statute 22d and 23d Victoria, cap. 22, sec. 26, to make the order which they have made, extending to the revenue side of their court the provisions contained in the 35th and 36th secs. of the common law procedure act, 1854. The 26th section of the former statute authorizes the barons by their order, “to extend and apply or adapt any of the provisions of the common law procedure acts, &c., to the revenue side of the said court as may seem to them expedient for making the process, practice, and mode of pleading on the revenue side of the said court as nearly as may be uniform with the process, practice, and mode of pleading on the plea side of such court.” It cannot be controverted that if this section confers on the barons a general power to extend such of the provisions of the common law procedure acts as they think proper to the revenue side of the court all question ceases. But it is argued that the language of the section confines the extension to such provisions of the common law procedure acts as relates to proceedings in the court of exchequer itself, and does not allow of the application of such of those provisions as relate to appeals to the exchequer chamber and the House of Lords, which, it is said, are foreign to the court of exchequer, and are not part of its “process, practice, or mode of pleading.” But it should be observed that the proceedings in error, generally speaking, are not regulated by any rules of the courts of error themselves, but “by regulæ generales” of the superior court of Westminster, out of which the proceedings in error come, and this appears to show that proceedings in courts of error by way of appeal may well be regarded as parts of the practice of those courts respectively. It may further be remarked that the phrase “process, practice, and mode of pleading” is a familiar phrase which the legislature appears to have purposely used as one of well-known signification. It was, I believe, first employed when the commissioners were appointed to inquire into the “process, practice, and pleadings of the superior courts of law at Westminster,” and afterwards in the preamble of the common law procedure act, 1852, and again in the title of the common law procedure act, 1854, and lastly, in the title and preamble of the common law procedure act, 1860. But in accomplishing the great work of rendering more simple and speedy “the process, practice, and mode of pleading in the superior courts at Westminster,” it was not thought to be going beyond that purpose to reform and simplify the “proceedings in error.” None of the wholesome enactments, however, contained in these statutes extended to the revenue side of the court of exchequer until the passing of the statutes the 22d and 23d of Victoria, cap. 21, now in question. And looking at the clauses in this statute which were introduced for that purpose, it appears to me plain that they were framed with reference to the anomalous character of suits and proceedings in that branch of the court. Their nature is so peculiar that the legislature appears to have deemed it inexpedient to enact generally that the common law procedure acts shall apply to the revenue side as well as the plea side. Accordingly, some of their reforms, which are unquestionably beneficial, are at once applied. For example: by section 9 the general power of amendment given by the 222d section of the common law procedure act is expressly extended to the revenue side. Again, by section 10, the improvements as to the stating of special cases and bringing error thereon are also expressly applied at once. Again, by sections 18, 19, and 20, certain other of the provisions of the common law procedure act, as to the propriety of the application of which no doubt could be entertained, are at once and absolutely extended to the revenue side. But as to the rest the statute leaves it to the discretion of the barons, as being best able to judge of the expediency, to extend to the revenue side so many of the provisions of the common law procedure act as they think right, in order to carry into effect the declared purpose of uniformity. It has been objected that if the statute meant to give the right of appeal it would have said so in so many words. But this would be to deprive the barons of the discretion which, in my opinion, that statute meant to confer on them, as to adopting this provision of the common law procedure act. Nor should we, in hearing this appeal, violate the rule that an appeal never lies unless it is given by statute, because it is so given if the statute in question authorizes the barons to extend the enactment which confers the right. And being of opinion, for the reasons I have given, that proceedings in error by way of appeal are part of the practice of the court below within the meaning of that statute, I think the legislature confers the right of appeal in this case.

Lord Chief Justice Erle.—Upon this motion to dismiss the appeal the question has been whether the barons of the exchequer had jurisdiction to order that the following provision of the common law procedure act, 1854, should be applied to the revenue side of the court of exchequer—namely, that an appeal, with its ordinary incidents, should lie to the exchequer chamber and the House of Lords, where a rule for a new trial on the ground of misdirection by a judge has been discharged. In my opinion, the answer to this question should be in the affirmative, that there was jurisdiction, on the ground that the Queen’s remembrancer’s act, the 22d and 23d of Victoria, cap. 21, sec. 26, gave to them the power to make that order. In support of this opinion I proceed to consider that statute, together with the state of the law which led to its passing. And first, I would premise that procedure in a suit includes the whole course of practice, from the issuing of the first process, by which the suitors are brought before the court, to the execution of the last process on the final judgment; and throughout the common law procedure acts and this act “procedure” is used as equivalent to “process, practice, and mode of pleading.” Procedure in civil suits in the superior courts of common law received memorable improvements by the common law procedure acts, 1852 and 1854. Those acts are declared in the preamble of the first and the title of the second to be for the amendment of process, practice, and mode of pleading in the superior courts. Those acts provide that each suit, from the issuing of the first to the execution of the last process, should be taken to be one entirety. They contain provisions for the practice to be followed in obtaining redress for erroneous judgments by appeal to the exchequer chamber and the House of Lords, the writ of error being abolished and proceedings in error being declared to be steps in the cause by the common law procedure act, 1852, section 148. Appeal is very essential for maintaining the right administration of law, and careful provisions are made to give the use and prevent the abuse of the right of appeal. According to those provisions, the appeal is effected by the act of the suitor in the court of first instance delivering a memorandum to the officer of the court, without writ or other authority, and the right to deliver that memorandum is vested in him in his capacity of suitor, derived from the first process in the suit. That memorandum so delivered, if the conditions of procedure are complied with, compels the officer of the court below to bring the record into this court and into the House of Lords, and may compel each of those higher courts to hear his appeal against the judgment entered on the roll of the court below so brought by that officer into the higher court, and he is to record thereon the judgment of those higher courts, and then to take back that judgment to the court below as the judgment in that suit to be executed by that court according to the practice thereof. The provisions are ample for the practical guidance of the suitor in carrying his appeal through each court, and they are clear to show that each court of appeal has no other function than to fix the time for hearing the case; neither court can interfere with the record, or do any effective act, but hear and determine on the judgment to be pronounced. The whole of these provisions in the common law procedure acts are constantly described as relating to “process, practice, and mode of pleading,” and they extended to the plea side of the court of exchequer, but not to the revenue side of that court. And this brings me to the passing of the statute above mentioned—the 22d and 23d of Victoria, cap. 21—under which the barons claimed to make this order. I assume that the procedure on the revenue side of the exchequer was adapted, to usages now obsolete, and so was in need of being amended; also, that the legislature intended to adopt this amended procedure of the common law procedure act, as being consonant to the interests of truth and justice, reserving no privileges to the crown as a suitor against a subject inconsistent with those interests. I would also refer to the rule that the rights of the crown cannot be taken away without clear words of enactment as explaining the insertion of some of the sections of this act.

But to come to the statute itself, the preamble recites the expediency of making provision in relation to the procedure on the revenue side of the court; then several sections, adapting the spirit of the common law procedure acts to matters of revenue, contain provisions suited to the intended change of procedure. Those which seem to me relevant to the matter now in hand are as follows: Section nine gives full powers to amend all defects of form. Section ten to state a special case and bring error theron. Sections twelve and thirteen, in case of appeal to the exchequer from the assessment of the commissioners relating to succession duty, give power to appeal from the exchequer to the two higher courts. Section fifteen, in case of a suit for succession duty, enables the court to refer the matter to a master, and to take his report as a special case, and error to be brought thereon. Section seventeen empowers the judges of assize to try issues on the revenue side as on the plea side. Section nineteen makes proceedings in error to be a step in the cause without writ of error, to be taken in manner as may be directed by any order made by the barons under this or any other act. Section twenty gives power to tender a bill of exceptions on trial of issues from the revenue side, and section twenty-one to give costs for and against the crown. We then come to section twenty-six, which gives large powers for making orders. It contains two distinct clauses. By the first clause the barons are empowered from time to time to make all such orders as to “process, practice, and mode of proceeding on the revenue side, and for the effectual execution of this act and the intention and objects thereof as may seem to them necessary and proper.” And by the second clause “also from time to time by such order to extend, apply, or adapt any of the provisions of the common law procedure act, 1852, and of the common law procedure act, 1854, and any of the rules of pleading and practice on the plea side of the court to the revenue side as may seem expedient for making the process, practice, and mode of pleading on the revenue side as nearly as may be uniform with the process, practice, and mode of pleading on the plea side of the court.” I have referred to several sections creating specific appeals. For all of these appeals, both to the exchequer chamber and to the House of Lords, the barons must make order under section twenty-six when making order as to process, practice, and mode of pleading on the revenue side; for if they did not do so, the effectual execution of the act would be prevented. Section nineteen, relating to proceedings in error, seems to me to refer expressly for the practice in those proceedings to the orders to be made by the barons under section twenty-six. It refers to orders to be made under this act, and section twenty-six is the section which empowers them to make the required orders. If this view of the effect of the statute be correct, it is certain that the power of the barons to make orders as to the process, practice, and mode of pleading on the revenue side was not confined to the court of exchequer, but extended to the courts of error into which suits should be brought from the revenue side of the court of exchequer. It may also be worth noting, that under section 26 the barons must make orders for the practice on the appeals under sections 10 and 12 above referred to, as the appeal is created by the name “appeal,” and no specific procedure is created. The first clause of section 26 gives very ample powers, but the second clause is that which is more immediately applicable to the order in question. It empowers the barons, inter, alia, to apply any of the provisions of the common law procedure act of 1854 to the revenue side, as may seem expedient for making the procedure on the revenue side as nearly as may be uniform with the procedure on the plea side. The order in question applies, section 35, which is one of the provisions of the common law procedure act of 1854, to the procedure on the revenue side. The barons are directed to make that procedure uniform with the procedure on the plea side. Section 35 is part of the procedure which is in use on the plea side, and the barons, therefore, are not only empowered, but required, to make an order for applying it, if they are to make the procedures on the two sides uniform, and if they think it expedient. The order of the barons seems to me, therefore, to be supported by the words of section 26, and to accord with the intention to be collected from the context. The objections on which Sir Hugh Cairns relied to prove want of jurisdiction depend on the construction of section 26; and if the construction above stated is right, it follows that his objections fail Against that construction he pressed two principal arguments, as I understood him—first, that the order which the barons were empowered to make was intended to operate only on proceedings while in their own court, and had no effect upon the courts above; and, secondly, that the said order, if valid, subjected suits to a ground of appeal which did not exist before. As to the first ground, I have already given my reasons for saying that procedure on the revenue side includes not only proceedings in the court of first instance, but also those in the sequel of courts through which the same suit may be carried by the suitor, and that power was given to the barons over the whole of the procedure. The statute, in my opinion, delegated to them an authority to make orders, and all orders made within that authority have the same effect as the statute. It may well be that the legislature thought that the barons of the exchequer were best qualified to decide how far the collection of the revenue could be reconciled with the new rights proposed to be granted—rights which might be subject to abuse by dishonest debtors sued by the crown. But my reasons for dissenting from this argument have been sufficiently explained. With regard to the second objection, that the order, if valid, would subject suits to a ground of appeal which did not exist before, my answer is a denial of the fact. In my opinion the order of the barons did not create any new ground of appeal. The order applies (section 35 of the act of 1854) to the revenue side, and thereby, when a motion is made for a new trial on the ground that the judge has not ruled according to law—that is, has misdirected—a party may have the decision on that rule reviewed in a court of appeal. Before 1854, in case of misdirection by a judge, a party aggrieved might seek redress either by tendering a bill of exceptions, or by moving in banco for a new trial. Each remedy had its defects. The bill of exceptions, though a most salutary check against mistakes by judges, was subject, in practice, to much expense, delay, complication, and other defects. The motion for a new trial had the defect of being final without appeal, and as the court, according to usage, accepted the statement made by the judge of the course he had taken at the trial, the suitor was often dissatisfied with the result. Section 35 introduced a salutary amendment of the practice, which was to be at the suitor’s option in case of misdirection, by enabling him to appeal from the decision of the court of first instance upon a motion for misdirection. By this amendment a bill of exceptions can only be needed when the suitor has a distrust of the judge or of his court. If there is mutual confidence, the point can be reserved subject to appear, and the suitor has facility for obtaining the judgment of each of the three courts in their order. But on a bill of exceptions, the opinion of the court in which the action is brought is not taken, and the proceeding is encumbered with the difficulties before referred to. The 22d and 23d of Victoria enabled the party to tender a bill of exceptions in suits on the revenue side. It thereby enabled him to bring any complaint of misdirection before a court of appeal, the ground of appeal being misdirection, but the practice to be followed being bill of exceptions. The order in question left the ground of appeal precisely the same as it would have been under a bill of exceptions, but altered the practice to be followed in seeking redress. If the party, instead of tendering a bill of exceptions, moves for a new trial, he may bring the question of misdirection before the court of appeal under the order of the barons. But it is still the same misdirection which might have been the subject of exception. The course for redress under a bill of exceptions would have been more circuitous; but still misdirection, and nothing but the misdirection, which might have been an exception, can be the ground of appeal under the order in question. Thus it seems to me to be true that the order relates only to the practice to be followed in appealing on account or misdirection, and leaves the rights of the parties under the law in respect of misdirection as they were before, and in this sense did not create a new ground of appeal. For these reasons I am of opinion that the order in question is valid, and that this court has jurisdiction to hear and determine this appeal.

Lord Chief Justice Cockburn. After the best consideration I can give to this case, the only conclusion at which I can arrive is, that we have no jurisdiction to entertain this appeal. The question depends upon whether, by the 26th section of the 22d and 23d Victoria, cap. 21, “An act to regulate the office of Queen’s remembrancer, and to amend the practice and procedure on the revenue side of the court of exchequer,” power is given to the latter court to establish the proceeding by appeal on motions for new trial in revenue causes, and to give an appellate jurisdiction to the court of exchequer chamber. The section first provides that “it shall be lawful for the lord chief baron and two or more barons of the court of exchequer from time to time to make all such rules and orders as to the process, practice, and mode of pleading on the revenue side of the court, and as to the allowance of costs, and for the effectual execution of the act, and the intention and objects thereof, as may seem to them necessary and proper.” It is admitted that this part of the section relates only to the procedure in revenue causes so long as a cause is pending in the court of exchequer itself. But the section goes on to give power to the barons “from time to time by any rule or order to extend, apply, or adapt any of the provisions of the common law procedure act, 1852, and the common law procedure act, 1854, and any of the rules of pleading and practice on the plea side of the said court to the revenue side of the said court, as may seem to them expedient for making the process, practice, and mode of pleading on the revenue side of the said court as nearly as may be uniform with the process, practice, and mode of pleading on the plea side of the said court.” The question is, whether the power of adapting the provisions of the common law procedure acts, for the purpose of assimilating the procedure on the revenue side to that on the plea side of the court, enables the court of exchequer to create for the first time an appellate jurisdiction in this court in causes relating to the revenue. It is, no doubt, true that the proceeding by appeal on motions for new trial is one of the provisions of the common law procedure act of 1854; but I cannot bring myself to think that, when the language of the 26th section of the 22d and 23d of Victoria, chapter 21, is looked to, the application of this provision is within the scope of the authority conferred on the barons of the exchequer. Still less, when the other enactments of this statute are taken into account, does it seem to me possible to adopt that view. It is admitted that the words “process, practice, and mode of pleading on the revenue side of the court,” occurring in the first branch of the 26th section, apply only to the procedure of the court itself properly so called. It is not contended in support of the jurisdiction that, under the power conferred by the first branch of the section, the court would have had power to create a proceeding by appeal. Why, then, should the words be read differently when occurring in the second branch of the section? Besides which, independently of this argument, it appears to me that the term “process, practice, and mode of pleading on the revenue side of the court” must be taken to have reference to the procedure of the court while the cause is still pending within it, and cannot be taken, without a very forced construction of the language, to apply to the creating of an appellate jurisdiction, or to the procedure to be adopted, when the cause has quitted the sphere and precincts of the inferior court, and has passed into the jurisdiction of the appellate tribunal. It is true the process out of which the appeal emanates and springs is that of the court below, as also that the record after the appeal has been disposed of returns to the court out of which it came, in order that effect may there be given to the judgment. It is also true that in acts of Parliament relating to procedure the term “process, practice, and mode of pleading” is applied to the procedure of courts of error and appeal. But who on an appeal in a civil suit ever thought of speaking of the practice of the court of exchequer chamber as the practice of either of the three courts from which, to its superior jurisdiction, an appeal lies? In the court of exchequer, on a rule for a new trial, a plurality of counsel may be heard on the same side. In the court of appeal we hear but one on each side. This is because our proceedings are here regulated by the practice of this court, and not by that of the court of exchequer. Again, the time within which the appeal must be brought, the form in which it shall be brought before the court, the awarding of process (as to which power is expressly given to the court of appeal)—all these are matters of practice, as to which, if special statutory enactments had not been made, the court of appeal must have made rules to regulate its own proceedings. How can these matters be said to appertain to the procedure on the revenue side of the court of exchequer? Yet these provisions as to the jurisdiction and procedure of this court the court of exchequer has taken upon itself to prescribe and settle as though it formed part of its own. The fundamental fallacy of the whole proceeding appears to me to consist in supposing that because a cause commences on the revenue side of the court of exchequer, and, in a certain sense, may be said to be a cause in that court, the practice and procedure of this court is, therefore, to be a part of the practice and procedure of the court of exchequer. The revenue side of the court of exchequer is a separate and distinct court; this court of exchequer chamber is another. The practice and procedure of the one is not that of the other, and a power to amend the practice and procedure of the one is not, as it seems to me, a power to amend that of the other.

But can it be supposed, in the absence of clear legislative enactment, that Parliament intended to confer on the court of exchequer the power of creating or withholding an appeal in matters of revenue at its pleasure and discretion? Where, in the history of juridical legislation, was such a thing ever heard of as the legislature leaving it to a tribunal to decide whether its authority should be subject to revision and correction on appeal? No doubt, in order to prevent vexatious and frivolous appeals, the right to appeal may be made conditional on the permission of the court; but no one ever heard of its being left to a court to decide whether its authority should be generally subject to an appellate jurisdiction or not. Statutory power has been given to courts to make rules and regulations as to procedure, but never to determine whether there should be a superior appellate court. Is it conceivable that Parliament would, in a matter of so much importance, and so eminently fitted for the determination of the legislature, have delegated its functions to a court of law? It does not appear to me enough to say that by this act the proceeding by bill of exceptions is allowed in revenue cases, and therefore the legislature might well intend to give power to the court of exchequer to superadd the proceeding by way of appeal. The obvious answer to such an argument is, that, had such been the case, nothing would have been more easy than for Parliament so to enact—a few short lines, and the matter would have been set at rest. But there are material distinctions between the proceeding by bill of exceptions and that by appeal. The proceeding by appeal, consisting as it does of three stages instead of two, is more likely to be resorted to for the purpose of delay. The case on which the appeal is to be brought must be stated between the parties, or, in case of disagreement, must be settled by a judge. It may not have been deemed advisable to place the crown in this position. I am warranted in thinking that the adoption of this mode of proceeding in revenue cases was deemed of doubtful expediency, from the, fact that, though the act of the 22d and 23d of Victoria, cap. 21, passed as far back as 1859, it was not till November last—that is, after an interval of four years—that the court of exchequer, in consequence of the difficulty which arose as to settling the bill of exceptions in this case, had recourse to the 26th section, and made the rule of the 4th of November, 1863, in order to get rid of the embarrassment in which it found itself placed. It may be that, from a doubt of the propriety of extending the right of appeal to revenue causes, the legislature may purposely have stopped short of introducing an appeal clause into the act of 1859, and may have contented itself with affording a remedy by bill of exceptions, as being of a more formal character and less likely to be resorted to, except on very substantial grounds, and as avoiding the inconvenience of making the crown a party to the special case to be stated. This view of the case becomes materially confirmed when it is observed how much of the provisions of the common law procedure acts in relation to proceedings on error has been introduced by specific enactment into the statute in question. In the 9th, 10th, 18th, and 19th sections we have the provisions of those acts relating to error applied to revenue causes. It follows that either Parliament did not consider the adoption of these provisions as within the competency of the court of exchequer within the 26th section, or did not think proper to leave legislation on such a matter to the court instead of providing it by act of Parliament. Why, then, should a different course have been pursued in the perfectly analogous case of proceeding by appeal? Again, in the 20th section we have a provision for the right to a bill of exceptions. If the legislature had intended to give the proceeding by appeal as well, why should it have stopped short of saying so? Still more striking are the provisions of the 12th and 13th sections, by which, in cases of appeal from the assessments of the commissioners of inland revenue to the court of exchequer under the succession duty act (proceedings clearly on the revenue side of the court,) an appeal is given in the very terms of the common law procedure act to the court of error in the exchequer ehamber, and from this court to the House of Lords. Can it be supposed that if the legislature had intended to extend the right to appeal further, it would have confined its specific application to this particular instance? According to the well-known rule of construction, must not the express enactment in the particular case be taken to negative the intention to extend the provision generally? If, indeed, there were no provisions of the common law procedure acts which were applicable to assimilating the procedure of the two sides of the court of exchequer, except the provision as to appeal, I should feel greater difficulty as to the construction of the 26th section. But there are several most valuable provisions which would fall plainly within the procedure of the court, in my sense of the term. Among these may be enumerated the provisions as to evidence, as to discovery and inspection, and as to trial—provisions which have had the effect of improving the administration of justice in the courts of law in a very eminent degree. To the adoption of these and similar provisions of the common law procedure acts the power of the court of exchequer, in my opinion, alone extends. To push it further would be, I think, to make Parliament say what it has not said, and do what it has not done; to legislate, in short, instead of expounding the statute, which alone is within our province. I regret to be obliged to come to this conclusion, partly because the proceeding by bill of exceptions appears to have been given up on the belief that this proceeding could be adopted; still more because, if the view I have taken be correct, the opportunity will be lost of settling the law on the very important question of the construction of the act of the 59th George III, cap. 69, as to the equipment of ships for the service of belligerents. We should, however, be altogether departing from the principles on which, in the discharge of our judicial functions, it is our solemn duty to act, if we allowed ourselves to be influenced by considerations such as these. We must interpret this act of Parliament, on which alone the present question depends, as we would do any other statute, and as though the discussion and decision of a great question of national importance were not depending on our judgment on this preliminary objection. I cannot, however, but observe, in conclusion, that in all probability we shall neither prejudice the parties nor delay the ultimate decision of this great question by dismissing this appeal. Whatever might have been our decision on the main question, had we proceeded to hear this appeal, this case would, no doubt, have been taken to the House of Lords. Doubtless such will be the case now; and if the highest appellate tribunal should hold the decision of this court on the question of jurisdiction to be erroneous, the case will be heard upon its merits, as it would have been had we heard this appeal, and decided the main question involved in it. It is satisfactory, therefore, to think that no injury of delay can be occasioned by dismissing this appeal in the present stage, even should we be wrong. I concur with those members of the court who think that, according to the true construction of the 26th section, we have no jurisdiction to entertain this appeal, and that our only course is to dismiss it.

The majority of their lordships being in favor of a dismissal of the appeal, it is dismissed accordingly, the crown, as has been intimated, having a right of appeal to the last and highest court—the House of Lords.