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Application for Mr. Attorney General. I will, with your Lordship’s permission, Leave to Move refer to the


passage for New Trial


you after first Four Lord Chief Baron. - The question now is, what is the course Days of Term. which we can take consistently with the rules of the Court.

Mr. Attorney General.— That is so, no doubt. My Lord, we are most anxious, 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 practice 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


for New Trial after first Four

the bill of exceptions on the ground which has been alluded to, Application for you will equally fail in getting a rule for a new trial upon the Leave to Move same ground.

Mr. Attorney General.Then at all events we should have the Days of Term. 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 che 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, 4th November 1863.

Motion to apply MOTION TO APPLY THE Common Law PROCEDURE Acrs, 1852 Common Law



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 oriler 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 Lordships' power, if you should think fit to exercise it by an act to be done this day, to apply i he 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 & 23 Vict. cap. 21. sect. 26, The Queen's Remembrancer'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 Excheqner, 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



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



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Procedure Acts

certain rules were made on the 22nd of June 1860, not however Motion to apply extending quoad hoc, the last of those rules was in these terms: - Common Law That the foregoing rules shall come into operation and take to Revenue Side “ effect on Wednesday the 24th day of October 1860,” the date of of the Court. the order being the 22nd 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-morrow?
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-insertion of a rule giving a power of appeal, in this case was

a 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 ad



Motion to apply vised, I should have thought that what was a good rule in an Common Law ordinary civil case would be an equally good rule in this case ; to Revenue Side I mean in a revenue case ; I mean in cases under the Act, so that of the Court, 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 endeavouring 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 it is a fit case for an appeal; at least there ought to be that power in every case.

Mr. Baron Pigott.1 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.-) 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



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