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which this is one, shall be bound to provide such conveyance aforesaid. Now the question is what is the meaning of the words "such conveyance as aforesaid." I cannot read the word "such" as forming the same subject matter of things to be transported; but I read "such conveyance' as a conveyance at the usual hours and times of starting, because the subject matter to be carried is stated hereafter; "such conveyance means at the usual and settled hours of starting, the words are "for the said military, marine, and police forces," and at certain fares. Then it goes on to provide each commanding officer, being entitled to a conveyance in a first class carriage at twopence per mile, each soldier in an ordinary carriage at one penny per mile, and then there is provision for the wives, widows, and children; next comes a provision, not in the first Act at all, "provided every officer shall be entitled to take with him 1 cwt. of personal luggage without extra charge," every soldier, widow, or wife, 56 lbs. weight without extra charge, all excess to be paid for at a rate not exceeding one halfpenny per pound. And then comes-instead of the words in the former Act "with their baggage, stores, arms, ammunition, and other necessaries and things," and all public baggage, stores, arms, ammunition, and other necessaries and things shall be conveyed at charges not exceeding twopence per ton per mile. Now whether that provision could not justly be construed as if it were a separate section providing for the conveyance of property of that description, I do not stop to inquire, it is unnecessary at present to decide it, because I think that the utmost construction that can be put upon the Act by reason of its recital and reference to the former Act is, that there is to be a removal of troops, and that the General who commands these troops is the only person to judge what ammunition, what arms, what baggage he sends with them. There is no inquiry, nor has anyone the power to make such inquiry, as to whether they belong to the individuals travelling, or whether they belong to a battalion of which they are a part, or to a regiment of which they are a part. It appears to me that the words "public baggage" are substituted for the words "their baggage" in the former Act, in order to prevent any question of that sort. And, therefore, in my opinion, if any body of troops are honestly and bona fide removed for the purpose of removal (qua troops), that every public baggage, arms, stores, ammunition, &c., that are sent must be taken by them, and there is no power to enquire whether they are the personal property of the body going or of a larger body of which that body constitutes a part. That it is enough that they are all "public baggage" within the meaning of the Act of Parliament on that ground. I don't entertain any doubt that the judgment of the Court below is correct, because it finds upon the special case that the real object was the removal of troops. That being so the case comes within the Act of Parliament, there being in my opinion nothing to limit the construction of the Act to making it necessary that the

baggage should be the baggage of the particular party going by the railway.

Mr. Justice Keogh.-I concur in the judgment below for the reasons assigned by my Lord Chief Justice and the Chief Justice of the Common Pleas : but I wish to go still further and to say that I think under the section of the Act of Parliament which declares that all public baggage, stores, arms, ammunition and other necessaries and things shall be conveyed at a charge not exceeding twopence per ton per mile, "the assistance of the military or other force to be given in loading and unloading such goods." I say I think under that section that it is competent for the Government to send any public baggage connected with either the army, the navy, the marines, or the police to the railway with two or three or 100 men, as the case may be, to assist in putting that baggage upon the railway, having men also to unload at the terminus to which the baggage was destined, and to do that wholly regardless of whether troops are being conveyed or not. I think to give the Act the opposite construction would require substantially the insertion of other and different words in the section than "all public baggage," and I cannot understand the meaning of these latter words at all if it is not competent for the executive to do what I have stated. I believe it was the intention of this Act of Parliament, seeing that the railways were getting great privileges, becoming in fact the monopolists of the highways of the country, that they should make a return to the state or the public, and that this Act we got, as the preamble states, to make provision "for the public advantage." I don't at all think, as was thrown out in argument, that the Act was passed because soldiers could be more comprehensively packed into a smaller space than other men. I think the object was by the provision in question to make the Railway Company do this service to the public.

Mr. Justice Christian.-Although I concur with the other members of the Court that the judgment of the Court of Exchequer should be affirmed, yet I am in no degree influenced in arriving at that conclusion by the views presented here in argument on the part of the Crown. On the contrary, if I were driven to make my election between the two propositions contended for here, the one upon the part of the Crown, the other upon the part of the Defendants, I should not have the slightest hesitation in preferring the latter. And that being the view I take of the case, I can scarcely avoid, indeed it would not be proper for me to do so, indicating briefly why it is, while upon the one hand I dissent entirely from the view which has been presented on the part of the Crown, upon the other I am for affirming the judgment which was given in the Court below in favour of the Crown. It is the more necessary that I should state my views in that respect, because if the view put forward on behalf of the Crown be the true view which arises on these Acts of Parliament, a burden will be thrown on the Railway Company, enormously more erroneous than that which would

result from the view I take of the construction of the Acts, if that view is the correct one. It is obvious that the AttorneyGeneral wishes to obtain from this Court something more than an affirmance of the judgment below; he is not satisfied with the reason that was given below, he rejects that reason and asks this Court to affirm a proposition which would largely increase the obligation of the Railway Company to the Crown. The 5th and 6th Vict., cap. 56, sec. 20 has, he says, been repealed by the 7th and 8th Vict., cap. 85, sec. 12, the connexion which, under the former statute, was necessary between the baggage to be conveyed, and the body of forces more or less numerous travelling with it, has been abrogated by the legislature, and the Government can now assume the right to transport upon the railway, at reduced rates, all the military stores of the empire, without any individual of the force travelling with the stores, provided only that there is at each terminus a force to assist in the loading and unloading. This is the Attorney-General's view of the matter. In my opinion that is not the construction to be given to the Acts. Anyone who reads the 20th section of the earlier Act cannot fail to see these three distinct matters which it regulates-First, the occasions on which the object is imposed on the Company, and these are "whenever it shall be necessary to move any forces, by any railway." Secondly, the thing which, on these occasions, the Company is required to do, and this is to permit such forces "with their luggage" to be conveyed at the usual hours of starting; and, thirdly, the price and condition of the conveyance of such forces which this Act left to be settled by contract between the Secretary at War and the Company. The question now is, what, as applied to this enactment, is the operation of the 7th and 8th Vict., cap. 85, which depends entirely upon the construction of the 12th section of that Act. If the repeal of the former section was the object contemplated; if so important an alteration in the law was intended as to render railway companies carriers on compulsion of all the military stores of the empire, irrespective of the question whether any troops were in the land at all; if this was the intention of the legislature, what one would expect to find in the new Act would be something to this effect: "Whereas the 5th and 6th Victoria contained certain enactments respecting the conveyanee of troops and their baggage, which are found insufficient: Be it enacted that they are hereby repealed" and then, in a new section, "Be it enacted," and so on, prescribing the new law. But, instead of that, what do we find? First, there is a recital in language and in meaning of the 20th section of the 5th and 6th Victoria, comprising the three distinct matters enacted there. Then there is this: "And whereas it is expedient to amend such provisions in regard to price and condition of conveyance." That it is expedient to amend the former Act as to one of its three express subjects, that one being the price and condition of conveyance. Well, to ordinary understandings, it would appear that this was tantamount to an express declaration that, as to the other two

subjects, namely, the thing which the Company was bound to carry, and the occasions on which they were to be bound to carry, were to remain unamended. Yet this is the very clause on which the Counsel for the Crown found their argument that the former enactment is wholly repealed. The intent expressed in the preamble is plainly one of partial amendment. And does the enactment that follows overstep that intent? If it does, it ought to prevail. But if there be meaning in language, every word that follows in the rest of the section is conversant precisely with the very subject alluded to in the preamble as for amendment, namely, the price and condition of conveyance. Now, what are the words of the statute? "Be it enacted (after the preamble I have read) that all Railway Companies hereafter incorporated, or who shall hereafter obtain new powers, shall be bound to provide such conveyance as aforesaid." That is, such conveyance as is mentioned in the former statute, "the 5th and 6th Victoria, "for the said Military, Marine, and Police Forces. That is, the Military, Marine, and Police Forces travelling with their baggage, at fares not exceeding," &c. Having done this, the section then goes on to regulate the price and condition of the conveyance, which, by the 5th and 6th Victoria, are extended to troops on the march with their baggage; and it is with this that all the rest of the section is conversant. It divided that into two heads, 1st, "personal," 2nd, "public, baggage"; and it regulates both under a proviso: "Provided that every officer shall be entitled to take with him one hundred weight of personal baggage, and every private one half hundred weight of personal baggage; and all other public stores, baggage, arms, and ammunition, except gunpowder and other matters, which, as in the former Act, are left to contract between the Secretary at War and the Company, "shall be charged for at a rate not exceeding two pence per ton per mile, the assistance of the military or other force being given in loading and unloading such goods." Now I entertain no doubt whatever that the latter part of that sentence regarding "public baggage" is as much a portion of the proviso as the former branch, relating to the personal baggage. It is in the part of the section where provisos are usually found, that is, at the end of it. It deals with the same subject as the first branch of the proviso, namely, baggage; and on the grammatical construction, all that follows "provided" is an unbroken sentence. The only argument that can be advanced against it is the absence of the word "that" before "all public baggage"; but the foregoing "that"-"provided that"-governs the whole sentence, as it was provided that every officer shall be entitled, "provided that every private, &c., and provided that all public baggage," shall be carried at such a rate. The point raised on the grammatical construction, arising from the non-repetition of the word "that," is not in the least advanced by treating this as a substantive enactment. If such was meant by the Government by the words "Be it enacted," then the clause, if not governed by the words "Provided that," must be governed by

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the words "Be it enacted." Be it enacted all public baggage shall be carried, is at least as ungrammatical an expression as Provided that all public baggage shall be carried." But, really, it does not in the least matter whether you construe it to be a part of the proviso or a part of the enactment. If it be part of the enactment, what does it enact? Plainly, what is in accord with the preamble, something regarding "price and conditions of conveyance"; but what baggage shall be carried, and what relation that baggage bears to the troops, all that is left to be governed by the 5th and 6th Victoria, chapter 20. And observe the concluding words of the section "the assistance of the military or other force being given in loading and unloading such goods." "The military or other force," not "a military or other force." Not a military or other force got together at either terminus, but plainly the same military or other force which leaves, is the military who are to load and unload at either terminus; in other words, plainly the military or other force, and spoken of as they are, which travels with, and are in charge of, the baggage. I am, therefore, clearly of opinion that the real question in this case is not that which has been argued by the Crown at all; that the question does not depend upon the 7th and 8th Victoria at all, but on the 5th and 6th Victoria, and that it is simply this-How are the words "their baggage," which occur in the section of that Act, to be satisfied? What is the true relation which by the words was intended between baggage to be carried and the troops travelling? for, that there was a relation, I am satisfied, and also that it exists, since the passing of the 7th and 8th Victoria, just the same as before. The whole difficulty of the question consists in this-that the words are unapplicable to the subject in hand. You cannot, in strict propriety, give them a sense, and you must cast about for some artificial and inferential sense to satisfy them. But here we have been placed under this great difficulty, that while we heard an extremely able argument on behalf of the Defendants, we heard no argument at all upon the part of the Crown. I know that there was a sense put on the words by the Court below, and the reasons put were stated during the argument; but the Attorney-General will have none of them. He "demands "-I believe that was his expression-that the Court shall not only give judgment for the Crown, but shall accept at his hands the reasons on which they shall base it. Now I cannot agree with these reasons. I am obliged, therefore, either to give judgment against the Crown, or to fall back upon less ambitious views; and to do so, unassisted by any argument.

According to the view taken by the Court below, as expressed through the judgment of Baron Fitzgerald, the connection between the troops who travel by the railway and the baggage may be a mere temporary one, so that any amount of military stores and baggage sent may be in charge only of a serjeant's guard, who had previously no connection with them, and may have none at the end of the journey; yet the baggage,