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certainly ought not to be done in a hurry; as my brotber Bramwell Motion to apply

Common Law has said, “ on the spur of the moment. We shall consider it, and

Procedure Acts I own I anticipate we shall make that alteration. We had better to Revenue Side

I let you know whether such an alteration may be made. If it be of the Court. made you will be here to-morrow morning I presume to move simply for a new trial on all the grounds what 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 discussing 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.-Oh yes.

Lord Chief Baron.— A bill of exceptions is coupled with various
old technicalities which perhaps under a better and more enlight-
ened 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 :-

In pursuance of the provisions contained in the 26th section of
the 22 & 23 Vict., cap. 21, intituled, An Act to regulate the Office
of Queen's Remembrancer and to amend the practice and pro-
cedure on the Revenue Side of the Court of Exchequer, “ It is

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the Court.

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Courts of Error

Rales made by “ ordered that the following provisions of the Common Law Pro

“ cedure 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. If rule nisi re- 1. “In all cases of rules to enter a verdict or nonsuit upon a fused party

point reserved at the trial, if the rule to show cause be refused or may appeal.

granted and then discharged or made absolute the party decided

against may appeal. Appeal upon

2. “ In all cases of motions for a new trial upon the ground rule discharged that the Judge has not ruled according to law, if the rule to show or absolute.

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 to be Courts of House of Lords shall be Courts of Appeal for this purpose. Appeal. Notice of ap

4. “ No appeal shall be allowed unless notice thereof be given peal. in writing to the opposite party or his attorney and to the Queen's

Remenbrancer within four days after the decision complained of,

or such further time as may be allowed by the Court or a judge. Form of appeal. 5. “ The appeal herein-before 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. Rule nisi 6. “When the appeal is from the refusal of the Court below granted on ap- to grant a rule to show cause, and the Court of Appeal grant

disposed of.

such rule, such rule shall be argued and disposed of in the Court

of Appeal. Judgment 7.“ The Court of Appeal shall give such judgment as ought Court of Appeal.

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. Powers of 8. “The Court of Appeal shall have power to adjudge payment Court of Ap-, of costs and to order restitution, and they shall have the same peal as to costs and otherwise. powers as the Court of Error in respect of awarding process, and

otherwise. Error upon

9. “ Upon an award of a trial de novo by the Court, or by the award of trial 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 affirmied in error it shall be lawful for the Court of Error to

adjudge costs to the defendant in error. Payment of 10. “When a new trial is granted on the ground that the trial on matter

verdict was against evidence, the costs of the first trial shall abide of fact. the event unless the Court shall otherwise order.

de novo.

costs upon new

11. “Upon motions founded upon affidavits it shall be lawful Rules made by for either party, with leave of the Court or a judge, to make

the Court. affidavits in answer to the affidavits of the opposite party upon any Affidavits on new matter arising out of such affidavits, subject to all such rules new matter. as shall hereafter be made respecting such affidavits.

12. “Notice of appeal shall be a stay of execution, provided Bail. 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 22nd day of June 1860, or as near thereto as may be applicable, provided that such bail shall not be necessary to stay execution in cases where the appellant is the Crown, the Aitorney-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.


G. PIGOTT. “Dated the 4th day of November,

“in the year of our Lord, 1863.”


Thursday, 5th November 1863.


A NEW TRIAL. Mr. Attorney General.— My Lords, in the case of the Attorney General v. 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 may be no mistake, let it be clearly understood that you move on the ground of misdirection, and that the bill of exceptions is abandoned.

Mr. Attorney General.— Yes, my Lord.

Mr. Baron Bramwell.--Let it further be understood, if you please, that we must take my Lord's report of what he directed, and act upon that .

Mr. Attorney General.—That I understand also.

Mr. Baron Bramwell. And further, supposing that upon the ground of the verdict being unsatisfactory for any reason, we in our discretion grant or refuse the rule, no appeal will be from it under the rules which we announced yesterday.

Mr. Attorney General.Unless your Lordships think fit to grant

Mr. Baron Bramwell.~Nay, there is no appeal except upon matter of law. If we should be of opinion that there was no misdirection, but that nevertheless the jury may have acted upon some wrong opinion, and grant a new trial upon that ground, it would not be competent to the defendant to appeal. On the other hand, if we should be of a different opinion, and refuse the rule, and you should desire to take the opinion of the Court of Error upon that question, it would not be open to you to do so. I wish to state for my own part, and I believe I may say for my Lord and my brethren, that it is desirable that those three matters should be clearly understood, namely, that you abandon your bill of exceptions, that we take my Lord's report of the direction, and that there is no appeal from our decision by either side, except upon a matter of law. Mr. Attorney General.I am entirely bound by that.

Of course, when I speak of misdirection, your Lordships will understand me to include in that both of these propositions, which I perceive from the books have been grounds upon which new trials have been granted in various cases, namely, the omission to give



a proper direction, and also such a direction which in one sense Motion for Rule might have been justified, but which, as it was given, had a ten- for New Trial. dency to mislead, and may have misled, the jury.

Now, my Lords, I will first state to your Lordships the wayin which the question arose.

The information was filed by the Crown after the seizure which had taken place in the yard of Messrs. Miller and Sons, or Mr. Miller, of Liverpool, who is a ship-builder there; the information was filed upon the 25th of May. There were 98 counts in that information, the great nunber being rendered necessary by the rather complicated structure of the clause in the Act of Parliament upon which it was founded. In substance it charged the persons whom I am going to mention, and other persons unknown, with various acts against the 7th section of the Foreign Enlistment Act. The persons, my Lord, so charged upon the face of the record were these, the members of the firm of Miller and Sons, or what was supposed to be that firm, (I believe it turned out and was stated in the evidence that Mr. Miller carried on business alone,) who were the builders of the vessel, and in whose yard she was when she was seized-in whose actual possession she was when she was seized, the firm of Fawcett and Company, who are, I believe, manufacturers of machinery at Liverpool, who came forward as the claimants, and said that the vessel was theirs, the firm of Fraser, Trenholm, and Company, whom we proved, as your Lordships will find by the evidence, to be the general agents for the business of the Confederate States (so called) of America at Liverpool, a person named James Bulloch, or Captain Bulloch, who was a special agent of those States at Liverpool for their belligerent business, and a person named Tessier, also employed in that business. Those two individuals, Bulloch and Tessier, and those three firms, Miller and Sons, Fawcett and Company, and Fraser, Trenholm, and Company, with other persons unknown, were all charged in every count of the information with the different acts in violation of the Foreign Enlistment Act which were alleged.

Now the separate counts, my Lords, were founded upon the language of the 7th section, to which I will just shortly refer your Lordships at the outset, not offering any argument upon it at present, but merely that its structure should be observed. The 7th section of the Foreign Enlistment Act is this,-“If any person “ within any part of the United Kingdom, or in any part of His

Majesty's dominions beyond the seas, shall, without the leave " and licence of His Majesty for that purpose first had and “ obtained as aforesaid, equip, furnish, fit out, or arm” in the disjunctive.

Lord Chief Baron.-Have you an abstract of the information ?

Mr. Attorney General.I have, my Lord; but I am afraid that it is in a shape not very ready accessible to your Lordship.

Lord Chief Baron.—It will answer my purpose; there was one handed up to me, which I have somehow missaid.

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