1855.

ELLIOTT

บ.

BISHOP.

Common Law Procedure Act, 1854," to state a special case, which was not finally settled until after that Act came into operation, it was held that error could not be brought. The words, "unless the parties agree to the contrary," shew that the enactment is not retrospective, and that it only applies where the parties have had the opportunity of agreeing that error should not be brought. The jurisdiction depends, not only on the Judge's order, but on the consent, and that was given before "The Common Law Procedure Act, 1854," came into operation.

Channell, Serjt, shewed cause in the first instance.The case is distinguishable from Hughes v. Lumley, for there the consent of the parties was given, and the order of Nisi Prius made before "The Common Law Procedure Act, 1854," came into operation. It was in effect the same as if the special case had been then and there drawn up in Court. In this case the Judge's order was not made until the 24th of October. The consent of the parties was of no avail unless the Judge gave his sanction, and at the time he did so the Act was in force.

Bovill replied.

Cur. adv. vult.

WIGHTMAN, J., now said-This was an application to quash a writ of error on a special case, under the 46th section of "The Common Law Procedure Act, 1852." By that section the parties may, after writ issued and before judgment, by consent and order of a Judge, state any question of law in a special case for the opinion of the Court without any pleadings. By the 32nd section of "The Common Law Procedure Act, 1854," which came into operation on the 24th of October last, error may be brought upon a judgment upon a special case in the same manner as upon a judgment upon a special verdict, unless the parties agree

to the contrary. In this case it may be taken for the purpose of the present question, that the parties had agreed to take the opinion of the Court upon a special case, and had also agreed to the question to be stated in it, on the 23rd of October last, and that all was complete except the obtaining of the order of a Judge. It was contended by Mr. Bovill, that, as the parties had done all that was necessary except the obtaining of the Judge's order before "The Common Law Procedure Act, 1854," came into operation, the 32nd section of that statute did not apply; and he cited Hughes v. Lumley (a). In that case a verdict had been found for the plaintiff, subject to a special case, by order of Nisi Prius, made before the 24th of October last, though the facts were not finally agreed on until after that time; and the Court considered that, as the special case was stated in pursuance of the agreement and order of Nisi Prius, made before the 24th of October, error could not be brought. This case, however, is distinguishable, inasmuch as the Judge's order, without which the special case could not be stated, was not obtained until after "The Common Law Procedure Act, 1854," came into operation; and both parties must be taken to have known (as the Act had passed two months before) at the time they agreed to obtain the Judge's order, that when the order was made error would lie on the judgment on the special case. There are three parties, whose concurrence is necessary for the purpose of stating a special case, viz. the plaintiff, the defendant, and the Judge; and as their concurrence did not take place until after "The Common Law Procedure Act, 1854," came into operation, it appears to the majority of the Court that the case falls within its provisions, and that, as there was no agreement to the contrary, error may be brought. The rule must therefore be refused.

1855.

ELLIOTT

v.

BISHOP.

Rule refused.

(a) 4 E. & B. 358.

INDEX

TO THE

PRINCIPAL MATTERS.