ELLIS บ. KELLY. [ *226 ] [227] in respect of two qualifications, either of which gives him a right to practise. He is charged with falsely pretending to be a doctor of medicine; and he had been in the habit of calling himself "Dr. Kelly" for many years previous to the passing of the Act. The question is, whether he wilfully and falsely pretended to be so. I think there is no evidence of that. BRAMWELL, B.: I do not think it has been shown that any offence has been committed, whether the diploma is taken to be proved or not. The 32nd section contains a prohibition against persons not registered recovering their charges. The 40th section is intended to guard the public against being imposed upon by a person pretending to have a qualification when in fact he has none. It applies to the case of a person using a title falsely implying that he is registered or has a title to be registered. The object is to prevent people from assuming titles in respect of a qualification when they have none. It is contended that any person who wilfully and falsely calls himself a doctor of medicine, when not registered as such, is liable to the penalty though a member of the College of Surgeons and registered as such. But assuming that contention to be well founded, he is not liable, unless he does it wilfully and falsely. If the intention of the Legislature had been to punish a person for incorrectly describing himself, the language would have been different. As it is, it points to wilful falsity. Then, did the respondent wilfully and falsely, in other words criminally, pretend to be, or use the title of a physician? There is nothing more than this, that having a foreign diploma he chose to put the word "Dr." before his name. I think that the magistrates took the right view of the case. They seem to have held that the respondent might well call himself "Dr. Kelly," on the supposition that he had a right to do so. I do not say that if he continues to use *that description after what has taken place he may not be responsible. CHANNELL, B.: On one of the two points that have been argued, I am of opinion that the appellant must fail. I think that the respondent has not wilfully and falsely used the title of "Dr." As to the other point I give no opinion. WILDE, B.: The only question is, what is the meaning of the words. wilfully and falsely" in the 40th section. I think that section refers to a case where a man wilfully pretends to be a doctor of medicine when he is not. The defendant had a German diploma, which he might reasonably believe entitled him to describe himself as he did. In a similar case, Ladd v. Gould (1), the Court of Queen's Bench held that it was a question of fact for the magistrates whether the party used the particular description, knowing he was not entitled to it and with intent to deceive the public. Appeal dismissed. WRIGHT v. HALE (2). (6 H. & N. 227--233; S. C. 30 L. J. Ex. 40; 6 Jur. N. S. 1212; 3 L. T. N. S. 444; 9 W. R. 157.) The Common Law Procedure Act, 1860 (23 & 24 Vict. c. 126), s. 34 (3), which provides that when the plaintiff in any action for an alleged wrong recovers by the verdict of a jury less than 57., he shall not be entitled to any costs, if the Judge certifies to deprive him of them, enables a Judge to certify in an action commenced before the passing of that Act. THIS was an action of trespass, with a count in trover for converting the plaintiff's goods. The writ issued on the 15th of February, 1860. The cause was tried before Bramwell, B., on the 7th of November in this Term, and after the passing and coming into operation of the 23 & 24 Vict. c. 126; when a verdict was *found for the plaintiff, with 40s. damages. The learned Judge immediately afterwards certified on the back of the record, that the action was not really brought to try a right beyond the mere right to recover damages, that the trespass or grievance, in respect of which the action was brought, was not wilful and malicious, and that the action was not fit to be brought. A rule nisi to set aside the certificate having been obtained, The 23 & 24 Vict. c. 126, s. 34, enacts, that "when the plaintiff in any action for an alleged wrong in any of the superior Courts recovers by the verdict of a jury less than five pounds, he shall not be entitled to recover or obtain from the defendant any costs in respect of such verdict," if the Judge certifies. The question is, whether this section applies to actions pending at the time of the passing of the Act. There is a distinction between statutes which interfere with vested rights and those which merely affect procedure. The only vested right which the plaintiff had in the present case was to bring his action. Moon v. Durden (4) may be relied on by the other side, (1) Q. B. Hil. T. 1860. (2) Cited, Kimbray v. Draper (1868) L. R. 3 Q. B. 160, 37 L. J. Q. B. 80; Att.-Gen. v. Theobald (1890) 24 Q. B. D. 557; The Ydun [1899] P. 236, 68 L. J. P. 101. ELLIS V. KELLY. 1860. Νου. 23. [ 227 ] [ *228 ] but that decision proceeded on the ground that the plaintiff had a vested right of action to recover money due in pursuance of the terms of the wager. The same principle was applied in Hitchcock v. Way (1), which was an action by the bonâ fide holder against the acceptor of a bill of exchange given for a gaming consideration, in which issue was joined before the passing of the 5 & 6 Will. IV. c. 41, but the trial took place after. In Towler v. Chatterton (2), it was held that the 9 Geo. IV. c. 14, which directs what evidence shall be required for proof of a promise to pay a debt barred by the Statute of Limitations, applied to the case of a promise made before the passing of that Act. In Freeman v. Moyes (3), the Court of Queen's Bench held that the 3 & 4 Will. IV. c. 42, s. 31, made executors liable to costs in suits pending at the time of the passing [of] the Act; and that decision was acted upon in Pickup v. Wharton (4) and Grant v. Kemp (5). Charrington v. Meatheringham (6) is an authority that a claim to treble costs under a statute existing at the commencement of a suit is not a vested right; and Cox v. Thomason (7) decided that a rule of Court introducing a new rule as to the taxation of costs applied to all taxations after the passing of the Act. It is a fallacy to say that, in giving effect to the certificate, the Court are giving to the statute a retrospective operation. If the learned Judge had no power to give the certificate, it is null and void and need not be set aside. M. Chambers and Beasley, in support of the rule: It is a well-known general principle that statutes shall not be held to operate retrospectively, unless they contain express words to that effect. They must be construed prospectively, unless the intention of the Legislature to the contrary is unequivocally expressed. The rule is so stated by WILDE, Ch. J., in Marsh v. Higgins (8). "It is a rule and law of Parliament that Nova constitutio futuris formam imponere debet non præteritis": 2 Inst. 292, Bac. Abr. Statute (C). In Williams v. Smith (9) and Jackson v. Woolley (10) it was held that the Mercantile Law Amendment Act, 1856 (19 & 20 Vict. c. 97) could not be treated as having a retrospective operation. So it has been held that the 32nd section of the Common *Law Procedure Act, 1854, which enacts that error may be brought on a special case, does not apply to judgments upon special cases stated before the (7) 2 Cr. & J. 498. (1) 45 R. R. 653 (6 Ad. & El. 943). (3) 1 Ad. & El. 338. (4) 2 Cr. & M. 401, 406. (5) 2 Cr. & M. 636. (6) 2 M. & W. 228. 568). 82 R. R. 436 (9 C. B. 551, 567, (9) 118 R. R. 611 (4 II. & N. 559). (10) 112 R. R. 774 (8 El. & Bl. 778, 784). passing of that Act: Hughes v. Lumley (1). This is an instance of the application of the rule to an Act regulating procedure. (CHANNELL, B.: Since the passing of that Act, error cannot be brought on a special case if it be agreed by the parties that there shall be no appeal. A case stated before the passing of the Common Law Procedure Act, 1854, may be supposed to have been stated subject to that condition.) In Vansittart v. Taylor (2) the Court of Exchequer Chamber held that the rule applied to the 34th section of the same Act, and therefore that no appeal was given in the case of a rule to enter a verdict, granted after the Act came into operation, on a point reserved at the trial before the Act received the Royal assent. (WILDE, B.: The leave to move is by consent, and it would have been unjust to treat the Act as altering the terms of the consent.) POLLOCK, C. B.: I do not think that our decision will interfere with the great constitutional principle to which the plaintiff's counsel have referred. There is a considerable difference between new enactments which affect vested rights and those which merely affect the procedure in courts of justice, such as those relating to the service of proceedings, or what evidence must be produced to prove particular facts. If an Act of Parliament were to provide that in matters of mere opinion no more than three witnesses shall be called, after that no person would be entitled to call more than three witnesses on such points in any pending suit, because it would be a mere regulation of practice. Rules as to the costs to be awarded in an action are of that description, and are not matters in which there can be *vested rights. When an Act alters the proceedings which are to prevail in the administration of justice, and there is no provision that it shall not apply to suits then pending, I think it does apply to such actions. Here the plaintiff had an opportunity of discontinuing the suit. The Act passed on the 28th of August, and contains a provision that it should come into operation on the 10th of October. The 34th section enacts that where the plaintiff in any action for an alleged wrong in any of the superior Courts recovers by the verdict of a jury less than 5l., he shall not be entitled to recover any costs if the Judge certifies to deprive him of costs. That is an act to be done at the trial, which was after the passing of the Act. I think, then, that we are not giving to the Act any retrospective operation, and the wrong (1 E & Bl. 358 (see 99 R. R. 509). (2) 4 El. & Bl. 910 (see 99 R. R. 823). WRIGHT ተ. HALE. [ *231 ] WRIGHT r. HALE. [ *232 | The supposed to be done by an ex post facto law does not arise. BRAMWELL, B.: I think that the certificate was properly given. I am struck by what has fallen from the LORD CHIEF BARON, that if the certificate be set aside the defendant would have no means of appealing from our decision, while, if the plaintiff is entitled to his costs notwithstanding the certificate, the judgment would be erroneous and he might still get them. I think that this reason alone ought to induce us to refuse to set aside the certificate if there were any doubt about its validity. CHANNELL, B.: I agree that the rule should be discharged. In dealing with Acts of Parliament which have the effect of taking away rights of action, we ought not to *construe them as having a retrospective operation, unless it appears clearly that such was the intention of the Legislature; but the case is different where the Act merely regulates practice and procedure. If there had been no case which affected the present question, the inference from the language of the Act would have been clear: it points to an act to be done at the trial. I think, however, that the case is virtually concluded by the cases I refer to: Freeman v. Moyes (1), where LITTLEDALE, J., at first doubted, but the decision was afterwards followed by all the Courts, and Towler v. Chatterton (2), where Lord Tenterden's Act, as to the evidence of a promise to bar the Statute of Limitations, was held to apply to all trials after the passing of the Act. These cases appear to me to be conclusive, but if there is any doubt I agree that the rule ought not to be made absolute. WILDE, B.: I am prepared to decide this case upon principle. The rule applicable to cases of this sort is that, when a new enactment deals with rights of action, unless it is so expressed in the Act an existing right of action is not taken away. But where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act. That this is the true principle sufficiently appears from the cases that have been referred to on both sides. The cases cited by Mr. Chambers (1) 1 Ad. & El. 338. (2) 31 R. R. 411 (6 Bing. 258). |