The Queen vs. James Taylor. could not have been brought within that time; there was no Court to bring it in. Does not the reference to the imposing terms as to security, &c., imply that the party seeking relief had been guilty of laches, but, as already suggested, he was guilty of no laches, for he could not have brought in his appeal within the thirty days. I have referred to the cases cited on the argument, and I do not think they conflict with the conclusion I have arrived at in this case, that we have no jurisdiction Mr. Bethune referred to the case of the Earl of Roseberry v. Sir John Inglis, the first case from Scotland appealed after the union. There was some difficulty at first but it was finally settled. As before the union the people of Scotland had the right to appeal to the Scots Parliament, the act of union was not intended to deprive the Queen's subjects of any privileges formerly enjoyed by them. The British Parliament came in, in place of the Scots Parliament, and the appellate jurisdiction exercised by the latter was transferred to the former by plain and necessary implication, though not by positive enactment. (1) The latest case referred to on the argument was The Queen v. Vine.(2) The statute there under consideration 33 and 34 Vic., c. 29, s. 14, enacted that "every person convicted of felony shall for ever be disqualified from selling spirits by retail, and no license to sell spirits by retail shall be granted to any person who shall have been so convicted, and if any person after having been so convicted, shall take out or have a license to sell spirits by retail the same shall be void to all intents and purposes." Many cases are referred to in the argument. (1) MacQueen's House of Lords Practice p. 288; (2) L. R. 10 Q. B. 195. The Queen vs. James Taylor. The question was whether a person who had been convicted of a felony before the passing of the Act became disqualified on the passing of the Act; and the majority of the Court held he did. Cockburn, Chief Justice, said the Act was not to punish offenders, but to protect the public against public houses in which spirits were retailed, being kept by persons of doubtful character. He thought, from comparing the Statute with others for similar purposes passed by the Legislature, that it was intended to apply the rule to persons who had been convicted of felony before the passing of the Statute. The case of Taylor was referred to on the argument as shewing the proper view of the subject. In Vansiltart v. Taylor (1); Jervis C.J., in giving judgment said: "we are all agreed that jurisdiction cannot be given by the conduct of the parties, if we have none independent of it; so that the only question is whether it is given in this case" The case was under the 34th section of the English Common Law Procedure Act, which is as follows: "In all cases of rules to enter a verdict or non-suit upon a point reserved at the trial, if the rule to shew cause be refused or granted, and then discharged or made absolute, the party decided against may appeal." The trial was before the Statute received the royal assent, but the rule to obtain a verdict was obtained after the Act came into operation. As before that there was no appeal in such a case, it was only by consent that such a reservation could be made, it was in fact an agreement to refer the case to the Court of Queen's Bench. In that case Parke, B. said: "I take it to be a clear rule of law that the language of a Statute is prima facie to be construed as (1) 4 E. & B. 910. The Queen vs. James Taylor. prospective only. This is according to the legal maxim, Nova constitutio futuris formum imponere debet non preteritis." A point reserved at the trial before the Act was only by consent of parties, and was a consent to refer it to a particular Court, only and not that the decision should be reviewed in error. The rule to set aside the proceeding was made absolute. Platt, B. dissenting. In Kimbray v. Draper, (1); in an action commenced in a Superior Court before August, 1867, application was made under the County Court Act of that year, passed in the month of August, to transfer the case to the County Court unless the Plaintiff gave security for costs, it being shewn by Defendant's affidavit, that he had no visible means of paying the costs in case the verdict should go against him. It was considered this was a matter of procedure only, and the order could be made, although the Act was passed after Plaintiff had commenced his action. Though the Judges had great doubt on the subject, they thought the case of Wright v. Hule, (2), an authority for Defendant, and granted an order to transfer the case to the County Court. Blackburn, J. said in giving his judgment: "When the effect of an enactment is to take away a right, primâ facie, it does not apply to existing rights, but when it deals with procedure only, prima facie it applies to all actions pending as well as future” In Evans v. Williams (3) it is laid down that it is a broad principle of construction that, unless the Court has a clear indication of an intention in an Act of Parliament to legislate ex post facto, and to give to the Act the effect of depriving a man of a right which belonged to him at the time of the passing (1) L. R. 3 Q. B. 160; (2) 6 H. and N. 227; (3) 2 Drew and Sm. 324. The Queen vs. James Taylor. of the Act, the Act will be declared not to have a retrospective operation. The Midland Railway v. Pye (1), Plaintiff, a married woman, obtained an order, under Acts 20 and 21 Vict., c. 85, of protection; before that she had brought an action in the County Court to recover the value of some furniture, some of which had been acquired by her after the desertion by her husband. It was contended on her part that the order of protection related back to the time of the desertion, and she could maintain the action in her own name; the concluding part of the 21st section being: "If any such order of protection be made, the wife shall, during the continuance thereof, be, and be deemed to have been, during such desertion of her, in the like position, in all respects, with regard to property and contracts, and suing and being sued, as she would be under this Act if she obtained a decree of judicial separation." The Court held that this order. of protection obtained by her during the pending of the suit would not entitle her to maintain an action which was not maintainable at its commencement. Erle, C.J., said: "Those whose duty it is to administer the law, very properly guard against giving to an Act of Parliament a retrospective operation, unless the intention of the Legislature that it should be so construed is expressed in clear, plain and unambiguous language; because it manifestly shocks one's sense of justice that an act, legal at the time of doing it, should be made unlawful by some new enactment. Modern legislation has almost entirely removed that blemish from the law; and, wherever it is possible to put upon an Act of Parliament a construction not retrospective, the Courts will always adopt that construction." Can there (1) 10 C. B. (N. S.) at p. 179. The Queen vs. James Taylor. be any doubt that the allowing an appeal where no right of appeal existed materially affects the rights of parties to enforce their judgments, as well as increases the expenses? In Vansittart v. Taylor, already referred to, Baron Parke said the proceedings in error are far more expensive than where the case is not subject to appeal, and ought not to be imposed on a party who did not consent to it. my attention to the Many of the obsercase, both in the My Brother Ritchie has drawn case of Atty.-Gen. and Sillem (1). vations of the Judges in that Exchequer Chamber and the House of Lords, have a bearing on some of the questions discussed in this cause. There, there were different opinions entertained by the Judges in the Courts below and by the Law Lords when taken into the House of Lords. One question was, whether an appeal was a proceeding in the cause or a new right. Willes, J., said: The understanding to be gathered from works with respect to practice is that a proceeding by way of error or appeal is part of the practice on the side of the Court in which the process originates." Erle, C.J., said: "Procedure in a suit includes the whole course of practice from the issuing of the first process by which suitors are brought before a Court, to the execution of the last process on the final judgment." According to the provisions of the Common Law Procedure Acts, the appeal is effected by the act of the suitor in the Court of first instance. The question was whether, under the power given by statute to the Barons of the Exchequer Court to apply the provisions of the two Common Law Procedure Acts to the process practice and mode of proceeding on (1) 10 H. of L. 720. |