such direction was given, and I am therefore of opinion that, upon the ground of an insufficient direction, there ought to be a new trial.

On the other ground, that the verdict was against the evidence, I agree with my brother Channell, that it is unnecessary for me to decide it, as I think that the rule should be made absolute on the ground of insufficient direction.

Mr. ATTORNEY GENERAL. My lord, the court being equally divided in opinion, if it is your lordship's desire that a judgment should be given, I believe it is necessary that some arrangement should be made for that purpose, that by the consent of one of the judges who has delivered an opinion, the rule should be either discharged or made absolute, otherwise we should have no judgment at all which could be taken anywhere else.

LORD CHIEF BARON. The officer of the court, the Queen's remembrancer, says, that according to the practice you would have an appeal either way; but it would, perhaps, be better if there were an apparent judgment of the court, deciding one way or the other, in order to remove every possible doubt.

Mr. BARON PIGOTT. Then I will withdraw my judgment.

Mr. BARON CHANNELL. According to the rules which the court made on the opening of this argument, in order to assimilate this case to an ordinary civil action, when a rule for a new trial drops on the ground that the court is equally divided, there is a right of appeal.

LORD CHIEF BARON. My brother Pigott withdraws his judgment.

Mr. BARON PIGOTT. Yes.

LORD CHIEF BARON. Then the rule will be discharged.

Mr. ATTORNEY GENERAL. That is quite enough, my lord.

IN THE HOUSE OF LORDS.

Present: The Lord Chancellor, Lord Cranworth, Lord St. Leonards, Lord Wensleydale, Lord Chelmsford, and Lord Kingsdown.

BETWEEN HER MAJESTY'S ATTORNEY GENERAL, appellant, and HERMAN JAMES SILLEM AND OTHERS, claiming the Alexandra, respondents.

Decisions of the lords sitting on appeal.

FRIDAY, March 11, 1864.

LORD CHANCELLOR. My lords, this appeal depends on the question whether the rules made by the Court of Exchequer on the 4th of November, 1863, are warranted by the power contained in the twenty-sixth section of the statute of the twenty-second and twenty-third year of the Queen, commonly called the Queen's remembrancer's act. The second common law procedure act, which passed in the year 1854, contains many important enactments with reference to the jurisdiction of the superior courts of common law, and some of the most important are the provisions that create new rights of appeal. In jury trials at common law grave questions frequently arise, and are decided on motions for a new trial or on rules to enter a verdict or nonsuit; but from the decisions of the court so given there was not before the act of 1854 any right of appeal.

The creation of a new right of appeal is plainly an act which requires legislative authority. The court from which the appeal is given and the court to which it is given. must both be bound, and that must be the act of some higher power. It is not competent to either tribunal, or to both collectively, to create any such right. Suppose the legislature to have given to either tribunal, that is, to the court of the first instance and to the court of error or appeal respectively, the fullest power of regulating its own practice or procedure, such power would not avail for the creation of a new right of appeal, which is in effect a limitation of the jurisdiction of one court and an extension of the jurisdiction of another. A power to regulate the practice of a court does not involve or imply any power to alter the extent or nature of its jurisdiction. Accordingly, it was necessary in the act of 1854, not only to give new rights of appeal, but to define and bind certain courts to entertain the appeal so given, and this is done by the thirtysixth section of the act, which declares that the court of error, the exchequer chamber, and the House of Lords shall be courts of appeal for the purposes of the act..

The common law procedure act of 1854 was, like the act of 1852, limited. to the superior courts of common law, and from the manner in which the act was expressed these words intentionally excluded that court which is called the revenue side of the court of exchequer. It required, therefore, another exercise of legislative authority to make the special provisions of the act of 1854 which had created new rights of appeal in the other courts applicable to suits as between the Crown and the subject in the court on the revenue side of the exchequer. In making the orders now in question the

barons of the court of exchequer have assumed that a discretionary power to exercise this legislative authority or not, and thereby to confer or to withhold this important benefit of new rights of appeal, has been given to them by the twenty-sixth section of the act of 1859. If the legislature has done this it has done a thing which is very irregular, and which antecedently would seem to be very improbable.

It is not reasonable to suppose that in matters affecting the taxation of the subject the legislature would abdicate its own functions, and delegate to the barons of the exchequer the power of determining at their pleasure whether in certain cases there should or should not be a right of appeal as between the subject and the Crown.

This improbability is much increased when attention is directed to the particular provisions of the statute in question, namely, the Queen's remembrancer's act. The tenth section embodies and applies (with some slight differences) to the revenue side of the court the provisions as to error and appeal contained in the forty-sixth section of the common law procedure act of 1852, and the thirty-second section of the act of 1854.

New rights of appeal are created and regulated by the twelfth, thirteenth, fourteenth, and fifteenth sections. By the sixteenth section special legislative provisions as to the examination and attendance of witnesses, together with the provisions contained in the forty-sixth, forty-seventh, forty-eighth, and forty-ninth sections of the act of 1854, are expressly extended to suits and proceedings on the revenue side of the Court of Exchequer; and in the eighteenth and nineteenth sections are contained express enactments regulating proceedings in error on the revenue side of the court, and embodying the one hundred and forty-sixth and one hundred and forty-seventh sections of the act of 1852; and by the twentieth section the power of appealing to a court of error by means of a bill of exceptions is for the first time created on the revenue side of the court.

Suits, therefore, between the Crown and the subject on the revenue side of the exchequer are by these express enactments put on the same footing with respect to proceedings in error as suits between subject and subject in the courts of common law, with the exception only of the right of appeal from interlocutory orders given by the thirty-fourth and thirty-fifth sections of the act of 1854. It is difficult to resist the impression that these last-mentioned rights of appeal were intentionally omitted by the legislature as not being expedient in revenue cases, but it is much more difficult to accept the proposition of the Crown, that these rights were left by the legislature to be conferred or not, at the pleasure of the chief baron and two or more barons of the Court of Exchequer. These improbabilities and difficulties must of course yield to any enactment expressly declaring that such is the intention of the legislature, but they are of sufficient weight to render it necessary that the language of such alleged enactment shall be clear and unequivocal, and not admit of any other reasonable construction.

With these observations we come to the construction of the twenty-sixth section of the statute. It contains two distinct powers given to the lord chief baron and two or more barons of the court.

By the first power they are authorized to make rules and orders as to the process, practice, and mode of pleading on the revenue side of the court. Here the word "practice" is used in its common and ordinary sense, as denoting the rules that make or guide the cursus curiæ, and regulate the proceedings in a cause within the walls or limits of the court itself. Under this power any rule might be laid down by the barons for the guidance of their own proceedings that did not require express legislative sanction. By the second power conferred by the twenty-sixth section, the lord chief baron and two other barons are authorized to extend, apply, and adapt to the revenue side 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 as may seem to them expedient for that is, for the purpose of 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."

First, it was admitted on all hands, and if not, it is clear, that the provisions in the acts of 1852 and 1854, which may be thus extended, applied, and adapted, must be provisions relating to process, practice, and mode of dealing. Uniformity of process, practice, and pleading on both sides of the court is the object of power, and defines its extent.

Secondly, it is very difficult to give to the words "process, practice, and mode of pleading," in this second power, a different meaning or extent of signification from that which they bear in the first power given by the prior part of the section.

Taking then the word "practice" as equivalent to the cursus curiæ, or regulations of proceedings within the court itself, the question is whether the thirty-fourth, thirtyfifth, and thirty-sixth sections of the act of 1854 can with any propriety of language be denominated provisions or rules respecting process, practice, and mode of pleading. This is a question of verbal nicety depending on nice shades of meaning in a word. The thirty-fourth, thirty-fifth, and thirty-sixth sections of the act of 1854 create, as I

have said, new rights of appeal. An appeal is the right of entering a superior court, and invoking its aid and interposition to redress the error of the court below. It seems absurd to denominate this paramount right part of the practice of the inferior tribunal. The mode of proceeding may be regulated partly by the practice of the inferior, and partly by the practice of the superior tribunal, but the appeal itself is wholly independent of these rules of practice. The right to bring an action is very distinct from the regulations that apply to the action when brought, and which constitute the practice of the court in which it is instituted. So the thirty-fourth and thirty-fifth sections of the act of 1854, which create new rights of appeal, and the thirty-sixth section, which defines and binds certain courts to receive and determine such appeals, cannot with any accuracy or propriety be termed provisions which relate to process, practice, or mode of pleading, either in the court appealed from or that to which the appeal is to be made. They are enactments creating new relations between certain courts in cases which are defined, and they are as distinct from rules of practice as international law is distinct from municipal.

On reading the rules in question which profess to have been made under the authority of the twenty-sixth section no one using the common language of lawyers would call them provisions relating to the practice of the Court of Exchequer on the revenue side. For the third rule is that the court of error, the Exchequer Chamber, and the House of Lords shall be courts of appeal for this purpose; that is, for the purpose of the appeal given by the first and second rules; and the sixth, seventh, eight, and ninth rules prescribe the duty and define the authority of these courts of appeal. These rules are so many legislative enactments purporting to create a new jurisdiction in the Court of Exchequer Chamber and House of Lords, and prescribing the mode in which such new jurisdiction shall be exercised. It is simply an incorrect use of language to call such enactments provisions respecting the process, practice, or mode of pleading in the Court of Exchequer; but, unless they can be properly and strictly so denominated, there is not in my opinion any authority to make such rules conferred by the twenty-sixth section of the Queen's remembrancer's act.

The principal argument of the attorney general was, that the words “process, practice, and mode of pleading" were equivalent to the word "procedure," and that the word "procedure" denotes the whole course of a cause, from its commencement in the court of first instance until its final adjudication in the ultimate court of appeal, and he then contends that a provision giving a new right of appeal may be properly termed a provision relating to the procedure of a cause. I cannot accept either of these two positions. The words "process, practice, and mode of pleading" are not used in the abstract, but always with reference to some court or courts, and so used they have a well understood and definite meaning. They are used in the twenty-sixth section in connection with the plea side and revenue side of the Court of Exchequer, and properly denote the proceedings in a cause on either side within the walls of that tribunal. They have no extra territorial operation; but if they receive the larger construction of the attorney general it would follow that under the twenty-sixth section the barons of the exchequer would have power to make rules as to procedure in the House of Lords, which would be absurd.

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It was also urged by the attorney general that the proceeding to error is now made a step in the cause, that is, a step in procedure, and if procedure be, as he contends, equivalent to process, practice, and mode of pleading, it is a step within the meaning of those words. The fallacy of this ingenious verbal argument lies, as I have already observed, in taking the word "procedure" in the abstract, and substituting it for cess, practice, and mode of pleading, also taken abstractedly; that is, taken in a sense and manner in which they are never found in the acts in question. The words "step in the cause”, are used, as is well known, for the purpose of denoting that in future it should be necssary to sue out a new writ for the purpose of entering a court of error. But it has been further contended that inasmuch as by the twentieth section of the Queen's remembrancers act the proceeding by bill of exception is extended to the revenue side, by which any error or omission in the ruling of a judge at the trial may be brought before a court of error, the giving of an appeal from the judgment of the court in banc on the same question of error in the ruling is no more than a regulation of form, and not the introduction of a new right of appeal.

But the observation is not correct in point of fact, for the bill of exceptions is to the ruling of the judge at the trial; whereas the appeal created by the thirty-fifth section of the act of 1854 is from a different judgment, viz, the decision of the court in banco. But the answer to the whole of this argument is, that although the bill of exceptions was a well-known proceeding in the courts, except on the revenue side of the exchequer, anterior to the year 1854, yet the legislature deemed it necessary to create the new rights of appeal which are given by the thirty-fourth and thirty-fifth sections of the act of 1854 by express enactments for the purpose. This argument, therefore, by bringing into immediate contrast the express mention of the proceeding by bill of exceptions, with the total silence of the legislature as to the appeals given by the thirty-fourth and thirty-fifth sections of the act of 1854, serves to confirm the conclusion, that the legis

lature deliberately abstained from extending to suits on the revenue side the provisions contained in those sections.

It was strongly contended by the respondents, that even if the barons of the exchequer had power to make the rules in question, they had no power to make them apply to pending proceedings, and that the attempt to do so was unjust.

This argument is not in my opinion well founded. Many of the enactments contained in the Queen's remembrancers act are so worded as to be applicable at once to pending proceedings. If, therefore, these rules are warranted by that statute, there can be no injustice in making them apply to pending proceedings so long as they apply equally and impartially to both sides.

Still it is a subject of deep regret that any rules should have been made expressly with a view to the determination of a particular cause. Four years had elapsed since the passing of the Queen's remembrancers act, and the necessity of these rules had never occurred to the barons of the Court of Exchequer. On the eve of the argument of the motion for a new trial in this important case the rules in question were made without the time necessary for due deliberation. The result is, that the efforts made to settle a question of the gravest importance, and most essential for the guidance of the government of the country, and regarded with great expectation, have been rendered abortive, or, rather, to speak more correctly, the mons parturiens of this great cause, raised with so much labor and expense, will produce nothing but the ridiculous issue of some discordant opinions on the meaning of the word "practice."

I therefore have to move your lordships that the appeal of the Crown be dismissed, with costs.

LORD CRANWORTH. My lords, on the argument of this case at your lordships' bar two questions were raised: first, had the Court of Exchequer the power to make the rules in question? secondly, if they had, could they make them so as to operate on a defendant who had already obtained a verdict?

The first question depends entirely on the twenty-sixth section of the 22d and 23d Victoria, chapter 21. That section contains two members. I do not consider it necessary to discuss what rights the court had under the first, but by the second part of the clause the chief baron and two or more barons are authorized from time to time, by any rule or order, to extend any of the provisions of the acts of 1852 and 1854 to the revenue side of the court, as might seem to them expedient for making the practice on the revenue side of the court as nearly as might be uniform with the practice on the plea side.

By the second of the rules of the 4th of November 1854 it was provided (among other things) that in all cases of motions for a new trial, upon the ground of misdirection by the judge at the trial, if a rule to show cause be granted, but afterward discharged, then the party decided against may appeal, if there is a difference of opinion among the judges, or if the court gives leave to appeal.

There is a provision in the act of 1854, section 35, giving to the suitor this power of appeal in such motions on the plea side of the court. Therefore, looking only to the words of the statute, the rule was certainly authorized, if it would tend to make the practice on the revenue side of the court more nearly uniform with that on the plea side.

Did then the alteration thus introduced by the second rule tend to make more uniform the practice on the two sides of the court? I cannot doubt that it did. If by the word "practice," as used in the statute, we are to understand the whole course of procedure from the commencement of a suit to its close by final judgment and execution, there can be no doubt that under the rule in question the practice on the revenue side was made more uniform with that on the plea side. In fact, the practice so understood was made the same on both sides of the court. I strongly incline to think that in construing a remedial act like that now under consideration, we may fairly adopt this liberal interpretation of the word "practice." When the legislature sanctions the doing of certain acts for the purpose of making the practice on the revenue side of the court more uniform with that on the plea side, it is not unreasonable to understand it as meaning the practice in revenue causes, that is, the practice in every stage of their progress from the commencement to the end. But in my view of the case it is not necessary that I should rely on this more extended sense of the word "practice," for, even supposing the "practice" referred to in the statute to be confined to that in the Court of Exchequer itself, and to have no reference to the mode in which the cause is to be dealt with after it has left that court, still I think the rule in question tended to make more uniform the practice on the two sides of the court. I must here remark, that the power conferred by the twenty-sixth section is not a power, as was assumed at times in the arguments, to introduce clauses relating to process, practice, or pleading, but a power to introduce any sections which may tend to make the process, practice, and pleading on the two sides of the court more uniform.

On the plea side, a suitor has two modes of bringing any misdirection of the judge at the trial under the review of the courts of error. He may tender a bill of exceptions at the trial before the jury have delivered their verdict, and then by proceeding in error bring the question as to the ruling of the judge before the successive courts of

error; or, after verdict, he may move the Court of Exchequer for a new trial, and if dissatisfied with the judgment there given he may appeal. Whichever course is taken, the question whether the judge has ruled according to law may be subjected to the review of the Exchequer Chamber, and afterward of the House of Lords.

On the revenue side of the court only one of these courses was, before the promulgation of the rules, open either to the Crown or to the defendant. Either party might tender a bill of exceptions, and so bring the matter before the courts of error. But if, instead of taking that course, he preferred to move the Court of Exchequer, after verdict, for a new trial, there was then no mode of questioning in the courts of error the ruling of the judge at the trial.

The effect of the new rules of court is, to enable the party, whether the Crown or a subject, dissatisfied with the judgment of the Court of Exchequer on such a motion, to appeal to the courts of error, thus making the mode of bringing before the courts of error the question whether the ruling of the judge at the trial was correct the same on the two sides of the court.

This may surely be treated as an alteration of practice in the court itself. There are two passages to the courts of error, by either of which a suitor on the plea side may bring under the review of those courts an alleged misdirection of the judge at the trial; the one notoriously inconvenient and hazardous; the other, easy and safe. Before the promulgation of the rules, a suitor on the revenue side could only proceed by the former course. Under the rule in question the latter course is opened to him as to the suitor on the plea side. I think this must be deemed to make the practice more uniform on the two sides of the court itself.

If I am wrong in coming to this conclusion, then I should not think that the rule in question was warranted; for, as I construe the statute, there was no power given to the judges of the court to extend any of the provisions of the two former acts to the revenue side of the court, unless by so doing they would make the process, practice, or mode of pleading on the two sides of the court more nearly uniform. The construction of the twenty-sixth section of the statute seems to me to require that the words at the end of it, which indicate the purpose for which the rules might be made, should be read as applying as well to the power of extending the provisions of the former acts to the revenue side of the court as to the power of so extending the rules of pleading and practice on the plea side of the court. In the further observations, therefore, which I am about to make, I must assume that the rules in question did tend to make the practice on the two sides of the court more nearly uniform.

But even supposing that to be so, still it was said there are considerations which ought to satisfy your lordships that no power of making such rules was intended to be conferred on the judges; first, because it is absurd to suppose that it could have been intended to delegate to the judges of a court the power of saying that any decision of theirs should be capable of being brought for review before the Exchequer Chamber, and ultimately to this house; and, secondly, because there are clauses in the act itself inconsistent with the hypothesis that any such power was in fact conferred.

On the first ground, I am far from disputing that cases may be suggested in which a strict adherence to the language of a statute whereby powers are conferred on a court or other body would lead to consequences so absurd or inconvenient as to make it necessary to understand the legislature as having used the words in question not in their ordinary sense; but I cannot discover any such necessity here. Suppose the clause authorizing the application of any of the provisions of the former acts to the revenue side of the court had in terms included those provisions which related to appeals. What would there have been absurd or inconvenient in such an enactment? It might have been unusual, but that would have been all; and I know of no principle which justifies us in departing from the ordinary interpretation of words, merely because they confer unusual powers. I incline to think that I should have taken this view of the case, even if there had been no power of bringing under review the ruling of the judge; but here the very question, as to which a right of appeal to the courts of error is given by the rule now under consideration, might have been brought by bill of exceptions under review of the same courts.

Consider the question, first, when the decision of the Court of Exchequer is conformable to the ruling of the judge, and where, therefore, the application for a new trial is refused. In every such case the right of appeal is merely a right in the party complaining of misdirection to bring by a new and less difficult mode before the courts of error the same question which he might have brought before them by a more cumbrous and complicated mode of proceeding, that is to say, a right to proceed by appeal on a case stated, so as to raise the matter in dispute, instead of by bill of exceptions. The rule in such a case is merely the extending to the revenue side of the court of a clause or clauses of the act of 1854 likely to make the practice on the two sides of the court more uniform. It gives to the suitors in causes on the revenue side of the court the same facilities of getting out of the court below, and reaching the courts of error, which are possessed by the suitors on the plea side. It does not give substantially any new