apparently, purposely left out. The first part of this section provides for an appeal to the Minister within fourteen days, but the proviso provides for an appeal direct to the Supreme Court, leaving out the limitation of time and the condition contained in the first part of the section. The Court is now asked to introduce certain words into the section, and read the proviso as if the limitation of fourteen days appeared there. That is contrary to the principle that it is the duty of the Court to construe an Act of Parliament according to its plain words. In construing an Act words must not be introduced, unless the Court can see clearly that, in order to give the meaning that the Legislature intended, those words are necessary.

With reference to the question of interpretation of statutes, I may refer to the case of Nicholson v. Fields (1), in which at p. 817 Baron Pollock says, "I admit that the common distinction between penal and remedial Acts, viz., that one is to be construed strictly, the other liberally, ought not to be erased from the mind of a Judge, yet, whatever be the Act, be it penal and certainly if remedial, we ought always to look for its true construction. In that respect there ought to be no distinction between a penal and a remedial statute. If the remedial statute does not extend to the particular matter under consideration, we have no power to legislate so as to extend it. Undoubtedly we are thus far bound to a strict construction in a penal statute, that if there be a fair and reasonable doubt we must act as in revenue cases, where the rule is that the subject is not to be taxed without clear words for that purpose." Now this is a revenue Act, and we must therefore construe it strictly in favour of the subject.

With regard to Mr. Salomon's contention, that, until there is an appeal, it is not the duty of the Commissioner to state a case, and for which he relies on the word "thereupon" in sub-s. 2, which he contends refers to the appeal, I do not think that that is the proper construction of that sub-section. It seems to me that "thereupon," as Mr. Justice Foster has suggested, refers to when a person is dissatisfied.

(1) 7 H. & N. 810; and 31 L.J. Ex. 233.

1890.

Ex parte
MANN.

The C.J.

I therefore think that the Commissioner, in refusing to state a case, has failed to discharge the duty imposed on him by sub-s. 2 of s. 16, and that the rule should be made absolute.

STEPHEN, J. If the Chief Justice feels mistrust in his decision in this case because I differ from him, I need hardly say that I feel mistrust in the conclusion at which I have arrived, because both the Chief Justice and Mr. Justice Foster differ from me. However, I am unable to get rid of the impression I formed of this case when I first heard the arguments. I see in the section an intention on the part of the Legislature to do what is ordinarily done in such cases, and that is to limit the time of appeal. It may be that the Legislature has not provided the time, and that the remedy must be by appeal to the Legislature, but as I read the section I see that the Legislature has fixed the time for appeal in two instances, and I am entitled to ask why it has not fixed it in the third? The time limited for an appeal direct to the Court is fourteen days, or there is an unlimited right of appeal. I think that the proviso to the section should be read as Mr. Salomons contends, namely, that the appeal to the Supreme Court is in substitution of the appeal to the Minister; and, as I find fourteen days in that part of the section bearing upon appeals to the Minister, I apply that time to the proviso. The difficulty has occurred by interposing between the appeal to the Minister and the appeal to the Court direct, the appeal from the Minister to the Court; but I do not think that interposition prevents me from coming to the conclusion that the proviso is intended to apply to the earlier part of the section, and is not separate. I think, for these reasons, the application ought to be dismissed.

FOSTER, J. I concur with the Chief Justice that the application ought to be granted. I am still of the same opinion which I first formed on reading this section, namely, that the proviso to the section is a complete enactment in itself, and provides for appeal without reference to any other part of the section. The first part of the section provides for an appeal to the Minister from the Commissioner, the second part provides for an appeal from the Minister to the Supreme Court, and the third part is complete in

itself for an appeal to the Supreme Court without any intervention of the Minister. I differ from Mr. Justice Stephen because I do not see how I can come to any other conclusion without importing certain words into the section, and I do not see how those words can be imported without transgressing the principle which guides the Court in construing revenue statutes, or statutes which are penal in their character. If the Legislature did intend that a time should be limited within which a person had to appeal to the Supreme Court, the section does not state so.

It has been argued that, inasmuch as there is no appeal before the Court, the mandamus should not go at present, but it seems to me, on reading sub-section 1 and 2, no appeal is contemplated until after the Commissioner has stated the case. I think it is clear that the appeal cannot be initiated until after the case has been stated.

Salomons, Q.C. I submit that the costs of this application ought to abide the event.

THE CHIEF JUSTICE. I see no reason for departing from the usual practice. The rule must be made absolute with costs.

Rule absolute with costs.

Attorney for the executor: Joseph Thompson.

Attorney for the Commissioner: Williams, Crown Solicitor.

1890.

Aug. 20, 27.

The C.J. Innes J. and Manning J.

NICHOLS v. ANGLO-AUSTRALIAN INVESTMENT, FINANCE,

AND LAND CO.

Real property-Conveyance of right of entry-32 Henry VIII. c. 9—Pretenced title-9 Geo. IV. c. 83, s. 24.

N., never having been in possession of certain lands, conveyed them to the plaintiff by an indenture dated 7th December, 1887, at which time the defendants or their predecessors in title were in possession. In an action of ejectment the plaintiff was nonsuited on the ground that this conveyance was void, and that the plaintiff's title was a "pretenced" title under the statute 32 Henry VIII. c. 9, or by the common law of which that Act is declaratory.

Held (on a new trial motion), that the common law of which that Act is declaratory is in force in this colony, and therefore that this deed, conveying a mere right of entry, was void.

Semble. The statute 32 Henry VIII. c. 9 is in force in this colony.

Construction of s. 24 of 9 Geo. IV. c. 83 considered.

THIS was an action of ejectment brought by F. S. Nichols to recover from the defendant company certain land situated at North Shore.

The plaintiff claimed this land by virtue of a conveyance executed in his favour by J. J. Nichols, on the 7th December, 1887.

At the trial, before Mr. Justice Foster and a jury of four persons, it appeared that J. J. Nichols had never been in possession of this land, and that at the time of the execution of the conveyance there was someone in possession of the land. His Honour accordingly nonsuited the plaintiff on the ground that his title was a "pretenced" title within the meaning of 32 Henry VIII. c. 9, holding that that Act was in force in this colony, and, if not, that the common law of which it was declaratory was in force.

The plaintiff's title and the facts of the case are more fully stated in the judgment of the Chief Justice.

On the 5th May, 1890, a rule nisi was granted calling upon the defendants to shew cause why the nonsuit should not be set aside and a new trial had on the grounds:

1. That his Honour was in error in ruling that the statute 32 Henry VIII. c. 9 was in force in this colony.

2. That his Honour was in error in ruling that the common law of which the said statute was declaratory, was in force in this colony.

1890.

NICHOLS

v.

ANGLOAUSTRALIAN

FINANCE,

3. That his Honour was in error in ruling that the title of INVESTMENT, the plaintiff was "a pretenced title" within the meaning of the said statute and of the common law.

4. That his Honour was in error in holding that the plaintiff had not made out a good title to the land in dispute.

It was now sought to make this rule absolute.

The Attorney-General (Heydon with him), for the plaintiff, in support of the rule. The first point to be determined in this case is whether this Act (32 Henry VIII. c. 9), which was passed in the year 1540, is in force in this colony. In order that the Court should hold that it is in force in this colony, it must be shewn that it was applicable to the colony at the time of the passing of the Constitution Act (9 Geo. IV. c. 83). In England, at the time of the passing of the statute of Henry VIII. c. 9, there were, of course, many old titles, and the Act was passed in order to protect those titles, and to prevent maintenance, champerty and embracery. In 1828, in this colony, there was no need for such an Act. In 1845 this Act was substantially repealed in England by 8 & 9 Vic. c. 106, which allows rights of entry to be conveyed: Jenkins v. Jones (1). Now, if the Legislature in England passed an Act impliedly repealing this old statute, as it was not applicable to the present state of society, how can it be said that it was applicable to the conditions of this colony in 1828?

[THE CHIEF JUSTICE. Exactly the same argument might have been used in Walker v. Solomon (ante, p. 88.)]

This statute was declaratory of the common law, and only superadded a penalty: Doe d. Williams v. Evans (2). It cannot be contended that the common law of which this Act is declaratory is in force in this colony. In order that it should be in force it must be shewn that the common law was applicable to the colony when first founded.

AND LAND CO.