out, was acted upon. No doubt I fully understand that your lordships would be quite willing, if you had the power, so to exercise it.

Mr. BARON CHANNELL. Yes.

Mr. ATTORNEY GENERAL. At the same time, if your lordships have not the power, of course no amount of good-will on your part could enable you to do so.

Mr. BARON BRAMWELL. Mr. Attorney General, what has occurred to me as a difficulty in the course which you suggest is this. You are apprehensive that the Lord Chief Baron may decline to sign a bill of exceptions in the form in which you think he ought to sign it. But then if you come and move for a new trial on the ground that he directed the jury in conformity with your notion of his direction, and he reports to us that he did not so direct, of course we should grant no rule for a new trial on that ground; so that there seems to me to be this sort of difficulty, that, if my lord will not sign a bill of exceptions in the form in which you require it, on the ground that he did so direct the jury, neither should we entertain an application for a new trial on that ground.

Mr. ATTORNEY GENERAL. I do not know, my lords, but we have the litera scripta here, and I was not aware that even a learned judge was able to interpret his own words upon a question of new trial in a sense different from their plain meaning.

Mr. BARON BRAMWELL. According to my experience (and important as this case may be I do not think that we ought to deviate from it) the invariable practice is to take the report of the learned judge as to the direction which he gave to the jury. Mr. ATTORNEY GENERAL. I should be bound by the practice, no doubt.

LORD CHIEF BARON. I have read the short-hand writer's notes.

Mr. ATTORNEY GENERAL. So have I, my lord.

LORD CHIEF BARON. The inquiry with respect to the direction to the jury is not whether something was said in the course of the trial from which somebody may infer something else, but what was the point left to the jury? Now, this is the summing up. After stating some of the evidence, I think that of a captain in the royal navy, I go on thus: "The question is, was there any intention that in the port of Liverpool, or in any other port, she should be, in the language of the act of Parliament, either equipped, furnished, fitted out, or armed with the intention of taking part in any contest."

Mr. ATTORNEY GENERAL. Yes, my lord; but your lordship had told the jury before what those words meant, and had placed your interpretation upon the act of Parliament. LORD CHIEF BARON. Mr. Attorney General, I must entirely deny that; unfortunately you were not here the whole of the time.

Mr. ATTORNEY GENERAL. I was here during the whole of the summing-up, my lordevery word of it.

"If

LORD CHIEF BARON. That may be. "That there was a knowledge that very likely she would be so applied there can be no doubt, as there is when persons send powder. I take it for granted that there are agents on both sides, one openly buying every munition of war and openly carrying it away, the others buying wherever they can.' you think the object was to equip, furnish, fit out, or arm that vessel at Liverpool, then that is a sufficient matter. But if you think the object really was to build a ship in obedience to an order, and in compliance with a contract, leaving it to those who bought it to make what use they thought fit of it, then it appears to me that the foreign enlistment act has not been in any degree broken. I leave you to find your verdict, unless you wish me to read the evidence over to you." They did not wish to hear the evidence, and they found a verdict for the defendants.

Mr. ATTORNEY GENERAL. Of course your lordship is very well aware that that is the conclusion of a long summing-up, of which we have a note, and your lordship said, after we had made the observations which we did subsequently to the verdict: "Mr. Attorney General, I will not bind you to what passes on the present occasion; there cannot be any doubt now. I cannot alter the thing, and I have no doubt that you have a very accu

rate note of what I have said."

LORD CHIEF BARON. Yes.

Mr. ATTORNEY GENERAL. And immediately before that, my lord, I said, and your lordship made no observation to the contrary: "Your lordship said the words were the same-that every one of the words required a warlike armament at Liverpool—that is the point."

LORD CHIEF BARON. That, Mr. Attorney General, you will find was distinctly explained in the course of the summing-up. I will read you the passage. Mr. ATTORNEY GENERAL. I have the passage, my lord, and have read it. LORD CHIEF BARON. It was calling the jury's attention to the finding in the case to which I have alluded, and adopting it as the law for the present, though I must say that personally I do not agree with it, and if it had to be re-argued in the courts of this country it would not be found to be correct.

Mr. ATTORNEY GENERAL. I will, with your lordship's permission, refer to the passage which you mention.

LORD CHIEF BARON. The question now is, what is the course which we can take consistently with the rules of the court.

Mr. ATTORNEY GENERAL. That is so, no doubt. My lord, we are most anxions, and I believe that the other side are equally anxious, to raise the question by a bill of exceptions.

LORD CHIEF BARON. I believe that the rule here is this: if you desire to move for a new trial upon any other matter than a point of law, then you have the power to move, as, for instance, if you wish to move for a new trial on the ground that the jury ought not to have found the verdict which they did find, the court, I think, would entertain that application; but if you wish to reserve to yourself the power of moving upon a point of law, having tendered a bill of exceptions upon some other point of law, or the same, then I think that the court probably would not yield to that application.

Mr. ATTORNEY GENERAL. My lord, I think that that would be quite against the prac tice of the court. The application which I wished to make simply was, that my time for moving might be enlarged. I believe that on both sides we are under the same impression, that something was ruled concerning the interpretation of the statute, and that the jury found their verdict under the influence of such a direction. LORD CHIEF BARON. I think that nothing of the sort occurred.

Mr. ATTORNEY GENERAL. Then we are both of course under a misapprehension; but being both under that misapprehension, and the point supposed to be ruled being one which is on both sides considered of the utmost importance, I believe that it is the common wish of both sides to raise that point, if it be possible, by bill of exceptions, and we hope to attend your lordship in the usual course, in order to have such a bill of exceptions settled. If that should be impossible, then of course I shall move, but in the meantime, hoping that it may not be impossible, my application was that my time for moving might be enlarged beyond the first four days, so that if we cannot obtain your lordship's signature to a bill of exceptions raising the question, then I may move. Mr. BARON BRAMWELL. It is a very technical matter. We have held that we have not the power to allow a motion for a new trial to be made after the four days in a civil case by the express words of the act of Parliament. The way in which that has been what one may call evaded has been by permitting the motion to be made and adjourned. Then there is this difficulty; that if you move for a new trial, having tendered a bill of exceptions, you must give it up.

Mr. ATTORNEY GENERAL. That I am not prepared to do.

Mr. BARON BRAMWELL. I do not know whether you follow the technical difficulties in your way.

Mr. ATTORNEY GENERAL. Perfectly, my lord.

Mr. BARON BRAMWELL. I cannot help repeating what I said to you, that supposing you fail in procuring my lord's signature to the bill of exceptions on the ground which has been alluded to, you will equally fail in getting a rule for a new trial upon the same ground.

Mr. ATTORNEY GENERAL. Then at all events we should have the decision of the court, that nothing was ruled upon the late occasion.

Mr. BARON BRAMWELL. You would only have the decision of the court to this effect, that my lord had so reported, and that they adopted that report.

Mr. BARON CHANNELL. Would it suit your purpose, Mr. Attorney General, to make a motion now, and have it adjourned upon the understanding that it is not to be further argued unless the bill of exceptions is not signed?

LORD CHIEF BARON. Before you can make a motion at all the bill of exceptions must be disposed of, as it is upon a point of law.

Mr. ATTORNEY GENERAL. I think that perhaps my best course, after what has fallen from your lordships, is this: this is only the second day of term, I will come here again on the fourth day of term.

Mr. BARON BRAMWELL. I was just going to suggest that.

Mr. ATTORNEY GENERAL. In the meantime we will examine the point which your lordship has been so good as to suggest, and see whether we can possibly bring a case of this description within the terms of the common law procedure act.

WEDNESDAY, November 4, 1863. Motion to apply the common law procedure acts, 1852 and 1854, and the rules of pleading and practice, to the revenue side of the court.

Mr. ATTORNEY GENERAL. My lord, I attend your lordships this morning in consequence of what your lordship was so good as to throw out yesterday, which has received our careful attention since, and we find that, as the law now stands, an appeal from any order refusing a motion for a new trial, or making a rule absolute in a case of this description upon the revenue side, could not be granted; but that it is in your lordship's power, if you should think fit to exercise it by an act to be done this day, to apply the common law procedure act so that an appeal would be competent, because I find, my lords, that by the 26th section you have full power.

LORD CHIEF BARON. Allow me to take a note of the reference; what is the statute? Mr. ATTORNEY GENERAL. The 22 and 23 Vict., cap. 21. séct. 26, The Queen's remem

brancer's act; and your lordships will excuse my appearing to-day, because if I had not done so it would have been too late.

LORD CHIEF BARON. It is your right to appear to-day or any day that you think the interests of the Crown require it.

Mr. ATTORNEY GENERAL. For this purpose, my lord, no other day would have done, because this is the last day on which it would be possible for your lordships to make such an order which would be available with respect to the case in question.

Mr. BARON CHANNELL. The defect is not in the act of Parliament, but in the rules; have we power to make a rule?

Mr. ATTORNEY GENERAL. Yes, my lord, this is the clause: "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, 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 such court." Your lordships recollect the clause in the common law procedure act, which I need not therefore refer to, but I may mention that when under that act certain rules were made on the 22d day of June, 1860, not however extending quoad hoc, the last of those rules was in these terms: "That the foregoing rules shall come into operation and take effect on Wednesday the 24th day of October, 1860," the date of the order being the 22d of June, "and with respect to any matter of proceeding then pending, these rules may, so far as they are applicable to any step or proceeding to be thereafter taken, be adopted and applied accordingly." There is nothing in the act which says that any interval shall elapse between the making of the order and the time when it is to take effect, and I believe, my lords, that this is the only case in the same circumstances, and if, therefore, it should appear to your lordships in your own discretion to be right to make such an order to-day, it would, in my humble judgment, govern the case in hand.

LORD CHIEF BARON. Why could it not be made to-morow? I admit that I do not see why it should not be made to-morrow.

Mr. ATTORNEY GENERAL. Your lordship may be quite right.

LORD CHIEF BARON. Or indeed at any time.

Mr. ATTORNEY GENERAL. What had occurred to me was this, that if the motion were made to-morrow, it might be doubted whether the rule would have a retrospective effect upon a motion which had been made before.

Mr. BARON BRAMWELL. What I presume my lord means is, why could we not make the order the first thing to-morrow, and you immediately move.

Mr. ATTORNEY GENERAL. Yes, that, my lord, would be quite the same thing.

LORD CHIEF BARON. I am rather inclined to think, Mr. Attorney General, that we might make the rule at any time.

Mr. ATTORNEY GENERAL. It is not for me to say what is in your lordships' power. LORD CHIEF BARON. Inasmuch as it is granted to the court to make all such rules as may seem to them necessary and proper, I apprehend that we might make the rule at any time, and make it retrospective. However, it is safer perhaps to avoid that.

Mr. ATTORNEY GENERAL. I think that it would be safer, my lord. If your lordships thought fit to make the rule, I think it would be safer not to raise that question as to the manner of making it.

[Their lordships consulted together.]

Mr. BARON BRAMWELL. Mr. Attorney General, those rules of which you speak were originally prepared in the office of the Queen's remembrancer, and I had a good deal to do with the settlement of them. The fact is that the omission, or rather the non-inser tion of a rule giving a power of appeal in this case, was intentional on the part of those who prepared them. It was thought inexpedient that there should be such a power. But I may mention that I was not aware that the rules had not made that provision. It did not occur to me when I went over them, and nobody called my attention to it, or else, as at present advised, I should have thought that what was a good rule in an ordinary civil case would be an equally good rule in this case; I mean in a revenue case; I mean in cases under the act, so that it must not be supposed, if upon consideration we should insert such a rule as that, that we are on the spur of the moment reversing anything which has been deliberately done by the court. If we should come to the conclusion that such a rule as that ought to be made, it will be upon our attention being called to the matter for the first time. Whether I ought to have noticed it when the rules were under my consideration is another matter, but I certainly did not; the matter did not occur to me at all, but the omission was deliberate on the part of those who originally prepared the rules.

Mr. ATTORNEY GENERAL. Perhaps your lordships would permit me to say that of

course I have not mentioned the matter this morning without endeavoring to discharge the duty of considering whether any public inconvenience might arise in other cases from making such a rule, and my strong impression is that, both for the Crown and for the subject, it would be desirable that there should be such a rule.

LORD CHIEF BARON. I quite agree with you in that respect, and on the present occasion I should have concurred in any mode whatever short of a violation of principle which would have given effect to a desire to appeal. I must say after the experience which I have had for some time, sitting in this court, that I own I see no reason why there should not be a power of appeal in revenue cases, as well as in any other case; there ought to be, and at all events there ought to be a power in the court to grant an appeal if it is applied for, and if the court thinks that is a fit case for an appeal; at least there ought to be that power in every case.

Mr. BARON PIGOTT. I confess that I very strongly concur in that. It is very much in the spirit of modern legislation which has put petitions of right on the foot of ordinary actions and given costs to the subject against the Crown; I think it very extraordinary that there should not be appeals in these cases as well as in civil actions.

LORD CHIEF BARON. The rules were framed by the Queen's remembrancer in their present shape, whether with the concurrence of the law officers or not I do not know. Mr. BARON BRAMWELL. The solicitor for the revenue.

LORD CHIEF BARON. I presume that some person representing the government in matters of revenue was a party to the arrangement.

Mr. BARON BRAMWELL. They were, and in truth it was their apprehending great danger from this power of appeal which caused the rule not to be inserted.

LORD CHIEF BARON. Mr. Attorney General, the result of your application this morning I take to be this. The court entirely concur with you in the view of what ought to be, but it would be better for the court to adjourn a little earlier than usual to-day, for the purpose of seeing whether the rule ought to be made. It certainly ought not to be done in a hurry; as my brother Bramwell has said, "on the spur of the moment." We shall consider it, and I own I anticipate we shall make that alteration. We had better let you know whether such an alteration may be made. If it be made you will be here to-morrow morning I presume to move simply for a new trial on all the grounds that may occur to you.

Mr. ATTORNEY GENERAL. Yes, my lord, if your lordships make such a rule there will be no doubt that we shall do so.

LORD CHIEF BARON. I think that that would be the better course to adopt, because it would leave open to you every objection which may reasonably be presented as to what passed at the trial, and as to what might have misled the jury, although there was no intention to mislead them, and possibly even no error, though what was said may not be free from the objection that it might have been made more clear; all that I think ought to be open to you. That would not be open upon a bill of exceptions. Mr. ATTORNEY GENERAL. I am much obliged to your lordship, and if your lordships should make such a rule there is no doubt that that is the course which we shall take; if not, of course we shall consider as far as we have time and opportunity what course to pursue.

LORD CHIEF BARON. Unfortunately I was in communication with the attorney general only, and not with any other law officer of the Crown I mean during the last circuit when we were dicsussing the case. It had occurred to me that if the attorney general had not resigned, and I own that I had some intention of suggesting to him the propriety of abandoning the bill of exceptions, and moving upon any point which he thought presented a fair subject for a motion. Now that the impediment which has been supposed to exist may be removed in the course of the day, and this proceeding being placed upon the same footing as any other proceeding in the court, undoubtedly a motion for a new trial with an appeal is a far better thing than a bill of exceptions. Mr. ATTORNEY GENERAL. O yes.

LORD CHIEF BARON. A bill of exceptions is coupled with various old technicalities which perhaps under a better and more enlightened system may be got rid of; I do not know whether the better course would not be to make an application for a new trial always the subject of an appeal, at all events if the court think fit, and probably this may be the means of getting rid altogether of a very old and I think not a very convenient mode of correcting the errors of a judge in the course of a trial. The court then made the following rules:

COURT OF EXCHEQUER-REVENUE SIDE.

In pursuance of the provisions contained in the 26th section of the 22 and 23 Vict., cap. 21, intituled 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, 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 nonsuit 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 allowed.

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 pleadings 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 an 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, prothat 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.

"FRED POLLOCK.
"G. BRAMWELL.
"W. F. CHANNELL.
"G. PIGOTT.

"Dated the 4th day of November, in the year of our Lord 1863."

THURSDAY, November 5, 1863.

Motion for rule to show cause, why there should not be a new trial.

Mr. ATTORNEY GENERAL. My lords, in the case of the Attorney General vs. Sillem, which was an information arising out of the seizure of the ship Alexandra upon the 5th of April last by the Crown for a violation of the foreign enlistment act, I have humbly to move your lordships for a rule to show cause why there should not be a new trial, on the ground of misdirection by the learned judge, and also upon the ground that the verdict was against the evidence.

Mr. BARON BRAMWELL. Mr. Attorney General, in order that there be no mistake, let