and orders on the revenue side of the court. It is not contended that this won'd authorize a new rule to allow an appeal. The words of the second part, if taken by themselves, would be clearly enough to allow all the provisions of the acts of 1852 and 1854 to be adapted.

Three questions then arise: First, Is this so unreasonable that the general power is not to be so construed? for no doubt if the natural and ordinary construction of the words used would lead to an absurd or unreasonable consequence, they may be moderated, or qualified, or explained.

Secondly, Does the circumstance that other provisions of the statute expressly enacting that certain clauses of the common law procedure act, 1853, and the common law procedure act, 1854, should be in force and extend to the revenue side of the Excheq uer, afford a proof that none others were intended to be extended, applied, or implied And thirdly, Does the conclusion of the twenty-sixth section, explaining that the object of the enactment is that the process, practice, and mode of pleading of the res enue side of the Court of Exchequer should be made uniform with the process, practice, and mode of pleading on the plea side of the court make any difference? Is the word "practice" to be understood in the larger sense of the whole conduct of the procedur. in the suit in the Court of Exchequer, from the beginning of the suit to the ultimate judgment and execution, or in the more limited sense of common and ordinary practice! These several points must be disposed of.

1st. It seems to me that it is impossible to say that the introduction of a power of appeal against a decision upon a rule nisi for a new trial for misdirection, in point of law, is an unreasonable power; on the contrary, it is a most satisfactory one. It gets rid of the difficulties and inconveniences of a bill of exceptions, which all practitioner know to be extremely troublesome and embarrassing in its preparation and settlement, and substitutes a much more simple course for inquiry into the propriety of the judge's ruling. I think it is wholly impossible to contend with success that the substitution of this mode of proceeding is not a very reasonable one.

Nor is there anything in the least unreasonable in delegating this power to the judges of the court itself. Mr. Justice Willes, in his very able judgment, has given many instances of such delegations by the legislature to others. The act 3d and 4th William IV, chapter 42, the first of a series of acts by which the law has been greatly reformed and improved, gives to the judges the whole authority to make most important changes, subject only to the condition of being laid before Parliament. The common law procedure act, 1852, gives a somewhat similar power to the judges. So the common law procedure act, 1854. These powers were given to a quorum of eight judges, the chiefs of the court being three. In this case it is the chief of the exchequer and two judges who have the power delegated to them, but the delegation being perfectly reasonable there surely is not the shadow of an objection that a quorum of the judges of the court, who alone administer the law of the exchequer, should have the power to make the allowed alterations in it. I think, therefore, that the power of adopting the provisions as to appeal is valid.

2d. Does the enactment, in express terms, in the statute 22d and 23d Victoria, chapter 21, of certain provisions as applicable to the revenue side of the Court of Exchequer. afford an inference that they were all that the legislature meant to be so applied, and operate as a sort of legislative declaration that no more should be so applied? I think this circumstance affords no such inference; clearly not those which are independent of the power to appeal, or to bring a writ of error. All that can be implied is, that those powers were all that the legislature then thought expedient, but they give to the judges the power of adding, from time to time, others which they might judge proper f circumstances should render it advisable. It is confided to them to exercise that discretion fairly and properly. Had the legislature thought it right to allow no other provisions to be applied, nothing would have been more easy than to have said so. We cannot imply that without its being said.

These sections are the ninth, tenth, twelfth, fifteenth, and twentieth. The ninth refers to the power of amendment only, and is given to its full extent. It is of the most frequent application, and nothing is more reasonable than that the legislature should, at all events, have enacted that this useful provision should be made.

Mr. Justice Willes has assigned most satisfactory reasons why the new sections giv ing error or appeal were necessarily inserted. It is from those only that any inference can be drawn that the powers of error and appeal were to go no further. The twelfth section giving appeal from the assessment of the commissioners of inland revenue, was absolutely necessary, because the common law procedure acts, 1852 and 1854, could not have given it. So the fifteenth section, giving error on a writ of summons on the succession duty act, or for legacy duties. So the twentieth. For a bill of exceptions in a common case was not given by the statute of 1852, but only in the newly constituted multifarious case of ejectment. It was given by the statute of Westminster 2d. As to the section 10, there is great doubt also, to say the least, whether it was not necessary, for it does not give precisely the same powers to state a case as the fortysecond and forty-sixth sections of the statute of 1852, the first of which gave only a

qualified power to the judge on being satisfied that the parties have a bona fide interest in the question, which is not required in the section 10. It would not have been sufficient, therefore, to leave those forty-second and forty-sixth sections unaltered, and section 10 effected that object. As the attorney general in all revenue cases is a necessary party, he is included in the term "parties," as pointed out by Mr. Justice Willes's judgment, and his consent to a case would supersede the judgment of a judge as to the bona fide interest in the question. This, in my mind, is quite satisfactory; but even if it leaves it a matter of doubt whether this power could have been given by the acts of 1852 and 1854, it was expedient to make it perfectly clear, and to leave no question as to the right of the attorney general, on behalf of the Crown, to the claim to have such a case stated, with the consent of the other party to the cause, and the simple order of a judge.

On the whole, it seems to me clear that the principle of expressio unius est exclusio alterius cannot be held to apply.

I have come, therefore, after much consideration, to the conclusion, that the second part of the twenty-sixth section authorizes the exchequer judges to make a rule giving an appeal in the case of a discharge of a rule nisi for a new trial.

The third question is, whether this power is qualified, so as to confine it entirely to matters of the ordinary practice of the court in a limited sense.

The words of the second part go much beyond that. They authorize the chief baron and 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. This is quite independent of the clause authorizing the application of the rules of pleading and practice; but the general object is, to make 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 court.

Does that provision limit and control the power to adopt the provisions of the acts 1852-1854, and apply to common and ordinary practice in the limited sense only? Many of those provisions in the two acts go greatly beyond "practice," in that sense, and process and pleading also. Can it be supposed that the legislature meant to undo, by the use of that term in the concluding part, what they had given before?

I cannot but think that, to make the whole clause consistent, the word "practice" must be construed in the larger sense given to it in the judgment of the judges of the court of common pleas, and explained more particularly by Mr. Justice Willes. It seems to be used in the same sense as it is in the preamble of the statute 1852, (which is of much more importance than the title,) and in the preamble of this act, 22d and 2 Victoria, chapter 21. It is for rendering the process, practice, and mode of pleading in the superior courts more simple and speedy; and one purpose, inter alia, is to make provision in relation to the procedure on the revenue side of the court.

Nor can I see any ground to confine the enactments to one department of the revenue side of the court, as contended by Mr. Mellish. The words apply equally to all pleadings and proceedings in revenue.

The abolition of the writ of error on the revenue side by section 19, (giving the barons a discretion as to bail, which would not, therefore, necessarily affect the attorney general,) and by the act of 1852, section 148, which enacts that a writ of error shall not be necessary or used in the proceeding to error, but shall be a step in the cause, seems to me to put the court from which the record was before removed by the writ of the Queen, entirely on a different footing. The suit is now begun and ended in the same court. The cause is not removed. The execution issues from that court, the court of error giving its assistance to come to a right final conclusion. I agree with the judges who think that the whole proceeding, from the beginning to the end of the suits, the taking the opinion of the court of error as well as acting upon it, constitutes the practice of the court, since the recent alteration and a different mode of taking that opinion is a part of that practice.

But a question has been presented to our attention, at the close of Sir Hugh Cairns' argument, and since fully discussed, which must be now considered. Was it competent for the judges of the exchequer to alter the law as to then pending proceedings, and to enact provisions at the time which they did, viz, on the 4th November, 1863, so as to affect the verdict which the claimant then had, which was subject only to the then existing law, and make it subject to another mode of inquiry.

I was much impressed with this objection at first, and was for a time strongly inclined to think that it was well founded, and that the new rules, though operative as to all future suits, were not operative in this. But the further argument, and a full consideration of this question, have satisfied me that this objection is not well founded.

Two questions present themselves: 1st. What would have been the effect, if the legislature had made a new act of Parliament, containing precisely the same terms as the rules of the 4th November? Would it have affected existing suits? 2d. If it would, onght the rules to be construed in a different way, and not allowed to have that

effect?

30 A C-VOL. V

I answer, that the new law would affect the existing suit; and the delegated authority to the barons of the exchequer ought to have precisely the same effect.

First, in this case it is perfectly clear that what I for the present may call the law of the 4th November, 1863, took away no right. The verdict had been given for the claimant. The power of tendering a bill of exceptions was gone. The new law took away no right from the claimant. It gave both the claimant and the Crown precisely the same right, that of questioning the propriety of the decision of the Court of Exchequer on a rule for a new trial for misdirection. If the judgment was given for the claimant, the Crown has the right to question that by appeal. If for the Crown, he has exactly the same right. The new law is, therefore, perfectly fair to both parties.

But, independently of that consideration, I think that if it were an alteration in the mode of proceeding only, to the prejudice of the claimants, the objection would not prevail.

There is no doubt of the justice of the rule laid down by Lord Coke in the 24 Institute, 202, that enactments in a statute are generally to be construed to be prospective, and to regulate the future conduct of parties. But this rule of construction would yield to the intention of the legislature. It could not be supposed that the legislature meant to deprive a man of a vested right of action. This was laid down in Moon rs. Dundas, in 2 Exchequer, 22.

But, on the other hand, it is clear that there is a material difference when an act of Parliament is dealing with a right of action already vested, when it is presumed that it is not intended to take it away; and when it is dealing with mere procedure to recover those rights, which it may be quite reasonable to regulate or alter.

This has been most clearly and satisfactorily explained in the case of Wright rs. Heale, 30 Law Times, Exchequer, 40, particularly by Sir James Wilde. In that case it was held that the common law procedure act, 1860, section 34, which enacts that if a plaintiff in action for a wrong in the superior courts recover less than £5 he shall not be entitled to costs, unless the judge certifies that the action was brought to try a right, applies to actions tried after, but commenced before, the suit. Sir James Wilde says, with truth, that this does not take away any right.

The right of the suitor is to bring the action, and to have it conducted in the way and according to the practice of the court in which he brings it; and if any act of Parliament, or any rule founded on the authority of the act of Parliament, alters the mode of procedure, then he has a right to have it conducted in that altered mode. That, therefore, takes away nothing. The right of action does not make the right to keep all the consequences of the right as they were before. It gives the right to have the action conducted according to the rules then in force with respect to procedure.

I am, therefore, clearly of opinion that if the provisions of the rule had been in an act of Parliament of the same date, the act would have affected existing suits, and would unquestionably have given an appeal in suits in which verdicts were already obtained. Secondly, Are these rules made, not directly by Parliament, but by delegated authority, to be differently construed? I think not. Parliament has delegated the power, without restriction, to the judges. It has made no conditions that it should operate -only as to future suits; and if it was not to affect pending suits, many useful alterations might have been prevented. The period of making the allowed rules is left ..entirely to the judges themselves to decide. It must be considered as unquestionable that they had a power to make rules for existing suits; and if they make great changes even if they were to be thought unreasonable, they would not therefore be void, because the discretion of the judges is absolute, and their rules final. But, in truth, they operated with perfect fairness on both the litigant parties.

I forgot to say, that the criticism on the language of the rules made in the course of the argument may be well founded. They are not accurately prepared, but their meaning is clear. There is a mistake in the provision as to the "court of error,” which is copied from the words of the act. It referred to another court of error, but the meaning is perfectly clear, and the inaccuracy cannot possibly lead to a mistake.

I am, therefore, of opinion, that the judgment of the Court of Exchequer Chamber ought to be reversed.

LORD CHELMSFORD. My lords, I cannot help feeling some regret that the learned barons of the Court of Exchequer did not hesitate a little before they determined to relieve the Crown from the difficulty in which it was placed with respect to a bill of .exceptions by issuing the rule in question; because, from the haste in which it was necessarily prepared, in order to render it available for its intended object, scarcely any time could have been afforded them to consider the grave doubts which have subsequently arisen, and which upon reflection might have occurred to themselves, as to their power to meet the emergency in the mode which they adopted. They might also пpon consideration have felt, that, however justifiable the occasion might seem, it was not desirable under any circumstances to make a rule which, though in terms calculated for general application, was purposely designed to answer the exigency of a particular To this rule, so introduced, an objection has been taken at your lordships' bar on

.case.

account of its supposed retrospective operation. This objection does not appear to have been raised in the court of error, though incidentally mentioned in the course of the argument there. Whatever conclusion may be adopted as to the propriety of making the rule at the time and upon the occasion when it was issued, or as to its operation and effect, I am so strongly of opinion it was ultra rires of the framers of it, that I think it unnecessary to make any observations upon its alleged invalidity on any other ground.

The short question is, whether the legislature, by the 26th section of the Queen's remembrancer's act (22 and 23 Vict. c. 21,) has given to a majority of the barons of the Court of Exchequer the power to determine whether it is expedient that there should be a right of appeal in a case in which none existed before.

There is to my mind a sort of prima facie presumption against this having been intended, arising from the consideration that if the legislature meant to delegate their power in this respect, a very few plain and simple words would have been sufficient to express their intention; but, so far from clearly conveying their meaning, it is so concealed under the language they have employed, that the ingenuity of the ablest counsel has been tasked to discover it; and after arguments of great length, both in this house and in the Exchequer Chamber, it is still left in the doubt and uncertainty which must necessarily result from the difference of opinion which it has produced.

Clear and distinct language might have been expected upon an occasion when the legislature, having ample means of forming a competent judgment of the expediency of allowing an appeal in a particular case, were about to remit to the judges of a court the discretion of determining whether such an appeal from their own decisions ought or ought not to be granted. I quite agree with my noble and learned friend (Lord Wensleydale) that it is not necessary that the power should have been "distinctly and unequivocally given,” but neither ought it to have been left to a doubtful and conjectural inference from equivocal words.

The whole argument is involved in the construction of the latter part of the 26th section of the Queen's remembrancer's act-" And also from time to time," &c. The section has been read so often that I will not trouble the House with it. The words to be principally dwelt upon are "process, practice, and mode of pleading." Now these words "process" and "pleading" are by common consent dismissed, as wholly inappropriate to describe any proceeding which is to be carried on beyond the walls of the court; and the whole stress of the argument is laid upon the word "practice." But as this word "practice" (more especially looking to the company in which it is found) would in its ordinary meaning be confined, like the other two words, to the court itself, it has been necessary to pray in aid of the more extensive meaning contended for, the words of the common law procedure act, 1852, section 148, repeated in the Queen's remembrancer's act, section 19, that "the proceeding to error shall be a step in the cause."

The argument then proceeds thus: Writs of error being abolished, and appeals substituted, in every case in which error can be brought, the proceedings to the court of appeal are proceedings in the court below, and become part of the practice of the court. Therefore a statute empowering the judges of one court, from which no appeal lies, to assimilate its practice to another, from which a right of appeal exists, necessarily and expressly confers the power to create such an appeal, or the practice of the two courts would not be uniform.

But this argument appears to be without foundation from the language of the legis lature on which it is rested. It is to be observed that the words used are not "the proceeding in error shall be a step in the cause," but "the proceeding to error." It would certainly be an extraordinary provision to enact that the proceedings in one court shall be part of the practice of another, but not at all to say that every step up to the very door of the court of error shall be a proceeding in the court from which the error proceeds.

66

The word "practice," however, is said to be a word of wide extent. Mr. Justice Willes says, it applies to "all the proceedings by which a cause is brought to judgment and execution;" and Chief Justice Erle says, Throughout the common law procedure act and the Queen's remembrancer's act, procedure is used as equivalent to process, practice, and mode of pleading." But the word "procedure" is nowhere used in any of the It is merely part of the name by which the first-mentioned act is to be cited, and a enactments of the common-law procedure act or of the Queen's remembrancer's act. act which comprehends provisions as to process, practice, and pleading-a remark fore be, that the word "procedure" is used by the legislature as the description of an

portion of the title of the latter act. The learned Chief Justice's meaning must there

which, with great deference, appears to me to have no force at all in the argument. Villes also is not quite accurate in saying that the word “practice” is a "to all the proceedings by which a cause is brought to judgment and

Mr. Justice

word applying

execution, its ordinary meaning it is undoubtedly distinguished from the

"pleadings"

judgment.

111 important part of the proceedings by which a cause is brought to The learned judge also, placing no reliance upon the word "process," and

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of course not on the word "pleading," says, "but, coming to 'practice,' practice is no term of art." Here, again, I must beg leave to differ with him. "Practice." even standing by itself, applies to a part of the proceedings of a court which are sufficiently distinguishable from the rest to be the subject of books of practice. As to his observation, that one of the heads of such a work will be the head of "Error," that is likely to be the case, because courts of error have their practice as well as courts of original jurisdiction. A book of practice, therefore, without such a heading, might be regarded as imperfect or incomplete, but it could hardly be called "maimed" (in the view of the learned judge,) because nothing would be cut off from the history of the practice of the other courts, of which alone upon the supposition it would profess to treat.

It may be that the word "practice," under certain circumstances, may be as comprehensive in its expression as the argument requires; but it hardly seems a correct mode of ascertaining its meaning, in the place where it is found, to separate it from all the other words with which it is associated, and having thus detached it from its qualifying context to construe it by itself. Even if the term "practice" might in a popular sense be taken to comprehend all the proceedings in a suit from the beginning to the end, yet when the legislature uses it with the words "process and pleading," it must have a limited meaning assigned to it. And as the practice of a court is as much distinguished from its process and pleading as these portions of the proceedings are from each other, the word "practice" in such a connection cannot be supposed to have been intended (in the words of Chief Justice Erle)" to include the whole of the suit from the issuing of the first to the execution of the last process." But attributing the most comprehensive meaning to the word "practice," it is still the practice of the Court of Exchequer to which the statute refers; it is a proceeding in that court which is to bring the parties to the door of the court of error. The practice pointed at does not advance a single step over the threshold of the court of appeal. It is applicable to all cases in which a right of appeal previously existed, but has no force whatever to create a new right. To give it that effect would be to confound the distinction (in the words of Mr. Justice Crompton) between the "machinery of the appeal and the right of appeal.”

The view which I have taken of the limited extent of the word "practice" in the twentysixth section of the Queen's remembrancer's act appears to me to receive strong confirmation from other parts of the act. In several other sections appeals from the revenue side of the Court of Exchequer are specially provided for; and it may fairly be asked why, if the legislature intended that there should be an appeal in cases of motions for a new trial, a provision to this effect was not expressly made. It is generally considered to be a sufficient indication of intention when certain things are specifically enumerated, that others not mentioned are not proposed to be included. Plausible reasons have been suggested why it was necessary that the act should contain provisions for appeals on special cases, bills of exception, and cases of succession and of legacy duty. Yet no satisfactory explanation has been given why the legisla ture should have taken all these under its own direction, and, as if proclaiming its incompetency to decide upon a question of expediency, should have left the only remaining case to be provided for by the delegated discretion of a majority of the Court of Exchequer.

But, even limiting the view to the section in question, the whole frame of it appears to me to militate against the construction which would extend the power of the barons of the exchequer to a proceeding beyond the precincts of their own court. Besides the company in which the word "practice" is found, both clauses of the section provide for the exercise from "time to time" of the powers which it confers.

It has been argued, and perhaps correctly, that if the barons possessed the power of giving an appeal, and executed it, it could not be recalled. But this appears to me to prove that the act could not apply to such an irrevocable power, but was intended to be confined to the adoption of such provisions of the common law procedure acts with respect to process, practice, and pleading as might properly be subject to alteration "from time to time," according to the result of experience.

It was argued, that unless the power to extend, apply, or adapt any of the provisions of the common law procedure acts applies (among others) to the clauses giving the rights of appeal on motions for new trial, the powers given by the two clauses would be coextensive, and the latter would be merely a repetition of the former. But it appears to me that the two portions of this section may be distinguished from each other, and that each may have its due effect. Alterations in the proceedings on the revenue side of the Court of Exchequer having been introduced by the act, some rules would be absolutely required to meet this new state of things. Accordingly, the former part of the section directs the barons to make rules as might seem to them necessa ry and proper; but beyond these rules, which were indispensable, the legislature, considering that some of the provisions of the common law procedure acts, and the rules of pleading already made for the regulation of the pleading and practice on the plea side of the court, might possibly be usefully applied to the revenue side; but not having the practical experience necessary to enable them to make a selection for themselves, therefore by the latter part of this section they leave to the discretion of the judges