EVANS'S LAW DIGEST.

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HE LAW DIGEST. By D. T. EVANS, Esq., Barrister-at-Law. arranged that the Practitioner can find in a moment what is the latest law on any subject. It is the only Half-Yearly Digest of the Law; issued in the months of June and December. The back Parts and Volumes may still be had. Established for twenty-five years. LAW TIMES Office, 10, Wellington-street, Strand, W.C.

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Law, Conveyancing, and Equity, from the commencement of the Examinations in 1836 to 1870, with ANSWERS; also the Mode of Proceeding, and Directions to be attended to at the Examination. By RICHARD HALLILAY, Esq., Aurhor of "The Articled Clerk's Handbook." Sixth Edition. By GEORGE BADHAM, Esq., Solicitor. Price 16s. cloth.

London: HORACE Cox, 10, Wellington-street, Strand, W.C.

The Law and the Lawyers.

WE are informed that Mr. J. A. RUSSELL, Q.C., the County Court Judge of Manchester, is to become Mr. Serjt. WHEELER'S colleague at Liverpool, and that Mr. OSBORNE, Q.C., now Judge of the County Courts of Lancashire, is to do Mr. RUSSELL'S work at Manchester. It is doubtful whether any new Judge will be appointed.

VOL. LII.-No. 1509.

THE performance of public functions by deputy is becoming troublesome. We have "delegated" Judges in bankruptcy, and deputies constantly sitting in County Courts, and coroners may discharge their duties by deputy. The Common Council of the City have now to elect a coroner in the place nominally filled by the late Mr. Serjt. PAYNE. Deputy LowMAN TAYLOR wants a gentleman appointed who will undertake personally to perform the duties. Mr. NELSON replies that to impose such a restriction would be futile, which is doubtless true. The only thing to be done is to elect the candidate who is most likely to do his work himself. At present two barristers are in the field, one of them in large practice. The office is worth £800 a year.

ANOTHER advocate is announced as a candidate for a seat in Parliament. The Bar at the present time is rather over represented in the House of Commons. Many of the acknowledged leaders adorn either side: there is what was recently styled the "admirable technical lawyer;" there is the rising debater who can sink his profession and originate legislation; there is the equity draughtsman who thinks no treaty ought to be framed without the assistance of an astute attorney and a conveyancing counsel; there is the independent common lawyer, whose friends think that he ought to have been a Judge long ago, but who flies in the face of his party; and there is the young Conservative of the criminal courts, of whose future in the House his best friends are not very sanguine. The new aspirant's claim to represent a borough is not easily intelligible, and we are not anxious to see the phalanx of mere advocates increased. Further, we believe the policy of busy barristers seeking senatorial honours at an early age is largely questioned, and we think rightly.

A VERY important question arose in the course of the Tichborne case on Wednesday. The plaintiff's counsel are necessarily in somewhat of a difficulty in cross-examination. Defendant's counsel had a mass of evidence given in the Chancery proceedings, and a little industry only was necessary to detect discrepancies between statements in affidavits of two or three years ago, and those made viva voce in the witness-box. The only material for cross-examining the defendant's witnesses which the plaintiff's counsel can hope for, are the proofs of the evidence of the defendant's witnesses; and, apart from the legal question involved, it is evidently important, from the plaintiff's point of view, that it should appear whether the evidence given by the defendant's witnesses has been in any way altered by what they have heard from the plaintiff and his witnesses. The question of the tattoo marks is most important, and upon that Lady DOUGHTY made one or two scarcely consistent statements. If her original story were consistent with the plaintiff's evidence it would be a great gain to him; but, under the ruling of the LORD CHIEF JUSTICE, he cannot get at the proofs of her evidence given in 1870. The legal bearings of this ruling we discuss in another column.

SIR EARDLEY WILMOT, the Recorder of Warwick, has taken the most sensible view yet promulgated on the subject of a public prosecutor. He proposes that in each county there should be a prosecuting counsel, acting under the ATTORNEY-GENERAL, who should direct prosecutions, but that when sanctioned by him the prosecutions should be conducted as they now are by attorneys and the junior Bar. Criminal prosecutions, he remarks, form the school of practice of the junior Bar, "and no one," he says, "who has attended Quarter Sessions will deny that the duties devolving upon them are ably and most carefully performed." This is undoubtedly true, but the system which at present prevails of influencing the distribution of briefs in favour of the relatives of magistrates ought to be promptly checked. Where the rule as to "soup" briefs does not prevail, the work is apt to get into the hands of two or three juniors with a county connection, to the detriment of the public business. With keen supervision such as Sir EARDLEY suggests, and a general employment of the barristers attending sessions and assizes, the administration of criminal justice would be vastly improved.

Re Bevan Jones, which came before the Rolls on Monday, raised a very important question in costs. Mr. JONES, a solicitor practising in Wales, had received the usual precept from the Education Office, and taken all necessary steps under it to form a School Board. He had also attended and taken the minutes of its first meeting. For these services Mr. JONES duly sent in his bill to the School Board-his proper paymaster. The bill was made out like an ordinary bill of costs, and the School Board obtained the common order to tax. A motion on behalf of Mr. JONES to discharge this order as improper brought the whole subject before the court. The MASTER of the ROLLS held that the bill was taxable, inasmuch as Mr. JONES had chosen to treat the matter as one of solicitor and client, and declined to discharge the order. On account of the importance of the case, however, he allowed the costs of the motion to be costs in the matter. It would appear from this case that a solicitor

situated like Mr. JONES can either send in a bill for a lump sum, or one made out in the ordinary way as a bill of costs. If he adopt the former plan the amount will simply be a question of fair remuneration for the services rendered, without taking into consideration at all that they were done by solicitor for client-the professional character of the services, in fact, not being recognised. If a bill of costs be sent in, it must be taken that the solicitor has elected to treat the relationship as one of solicitor and client, and the bill is consequently taxable.

A PASSAGE in the Dublin correspondence of last Monday's Times discloses a condition of things deserving attention. It relates to the dissatisfaction felt in Ireland both by the Profession and the public with the mode in which the county chairmen do their work. Many of the cases under the Land Act which come under their cognisance have been most intricate, and called for the exercise of a very large amount of judicial ability, "It may be assumed,” says the Times correspondent, "that about one-third of the chairmen of quarter sessions are thoroughly competent lawyers, and not incapacitated by age or infirmity from performing their duty as Judges of our County Courts." When we consider that there are thirty-two of those functionaries in Ireland we can understand how widespread must be the evil of judicial maladministration. This further appears by the fact of fifty-one appeals being carried from one County Court Judge to a single assize. We are most concerned, however, is the way this state of things has been brought about. The Times correspondent tells us that these County Court Judges have not, as a rule, been selected on professional grounds, but, generally, for political services rendered. Such a system never can answer, under any possible circumstances, either in England or Ireland.

WE had not perceived Mr. GLADSTONE'S side blow at Lord Justice CHRISTIAN in his speech on the COLLIER question, and we are therefore glad to observe that the Irish Law Times takes the matter up in the proper spirit. After rejoicing over the vindication of the independence of the Bench by Lord Chief Justice COCKBURN, our contemporary draws attention to the following passage in Mr. GLADSTONE'S speech: "Once upon a time--I will not say to what portion of the dominions of Her MAJESTY I refer-it has so happened to me, as a member of the Executive Government, to be called upon to consider the conduct of a Judge who had most rashly and culpably reflected upon the proceedings of the Legislature, and had undoubtedly exposed himself to our severe reproof. But what view did we afterwards take of the matter? We came to the conclusion that as the act was not an act with respect to which it would be right to ask Parliament to address the Crown for his removal, it was not an act of which further notice should be taken at all." There can be no doubt," says our contemporary, "to whom this passage refers. The LORD JUSTICE OF APPEAL in Ireland lately criticised the very wor.drawn Act that was ever passed by the Legislature, in terms more forcible than flattering. We have had occasion more than once to express our regret that the style of the LORD JUSTICE was not more judicial. But it is admitted that there was nothing in his remarks which would have justified formal censure; and for a minister, however exalted, to attempt to reprove informally under these circumstances, appears to us to be an ominous precedent, fraught with danger to the independence of the judicial Bench." One minister of the Crown has been brought to his knees before Lord Chief Justice COCKBURN, and it is to be hoped that the occasion for a similar exhibition may never arise.

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MR. MARK PERRIN, the Registrar of Judgments in Ireland, has published a report on the statute 34 & 35 Vict. c. 72, and the general orders made under it. He calls the particular attention of professional men to the form which requisitions should take, and this being important we will quote his remarks: "Requisitions for searches," he says, "had, until the passing of the recent Act, consisted of two kinds, common and negative. The former, which were subject to a stamp duty of 7s., were made by only one searching clerk, and the certificates involved no official responsibility. Negative searches were first made by one clerk, and his slips or lists were verified by the other clerk, and the registrar was responsible for the accuracy of his certificates. These latter searches were subject to a duty of £1 each. The new method of keeping the register of judgments and incumbrances affecting real estates will, it is manifest, put an end to any such distinction between searches. Accordingly the new Act, in anticipation of the introduction of this change, abolished this distinction, and by sects. 3 & 4 enacted that the forms of requisitions and certificates given in the schedule should be substituted for those contained in Lord St. Leonards' Act. There are two forms of requisition in the schedule, but they are both negative, and official responsibility is equally attached to each. The first form is confined to a search for judgments and decrees, &c., dated prior to July 1850, and for lis pendens, recognisances, Crown bonds, &c. The stamp duty on this requisition has been reduced to 16s. 6d., to compensate for the abolition of requisitions for common searches.

The second form of requisition in the schedule includes all judgments, &c., viz., as well those which are not charges upon land as those which are, and the duty has not been reduced, but has been left £1, for the purpose of checking the resort to this form. The first form of requisition inlcudes all the registrations which will be made in the book to be entited "The Register of Judgments and Incumbrances affecting real Estates," and is therefore amply sufficient for all the purposes of a purchaser or mortgagee. I am most anxious to call the attention of all professional men to this. It is for this object that I have dwelt to an extent which may have wearied the reader on the marked distinction between the two classes of registrations, viz., those charges which are upon land and those which are not. Unless this first form of requisition comes into general use, the distinction which has been made in the method of registering these two classes will have been to a great extent useless. I therefore respectfully request the attention of all who direct searches in the Registry of Judgments Office with the object of learning the charges on real estate there registered, to the immense advantage which will arise from their so moulding their directions, that it will be this form of requisition which will be made use of to carry them out. I beg leave to suggest for consideration such a form of direction as the following: Search in the registry of judgments for such judgments, revivals, decrees, rules and order as are incumbrances on real estates, and for lis pendens, recognisances, Crown bonds, judgments at the suit of the Crown, statutes, inquisitions, and acceptances of office, registered, re-registered, or redocketed against A. B. for the last five years.""

LADY DOUGHTY'S PROOF AND THE DOCTRINE OF PRIVILEGE.

We have elsewhere briefly adverted to an important question raised in the course of the Tichborne inquiry on Wednesday, as to the right of one side to call upon the attorney on the other side to produce the proofs of a witness's evidence.

There would appear to be two points for discussion. First, is the document one for which counsel is entitled to call at all; and.. secondly, if so, is it protected by privilege? The AttorneyGeneral says that the document cannot even be asked for, as it would be equivalent to handing his brief over to his opponents. Now, if we understand the position, the demand of the plaintiff's counsel does not amount to this. Assuming the Attorney-General to have examined Lady Doughty from his brief its contents are known to the opposite side; but they desire to see that which according to their case is not a part of the brief, but something inconsistent with it, and in effect altogether different from it. Therefore, we are of opinion that the claimant's counsel were perfectly justified in calling upon Mr. Dobinson to produce it.

Then comes the question whether its production could be enforced. We will briefly examine the cases cited on either side; and first, as to Spenceley v. Schulenburgh (7 East, 357). That was an action for usury in a certain agreement. Notice to produce the agreement was served on the defendant's attorney, but the witness who was called at the trial to prove the service of the notice could only speak to having delivered a certain paper to the defendant's attorney, the contents of which he did not know. The production of the papers having been demanded in court and refused, it was proposed on the part of the plaintiff to call the defendant's attorney as a witness to prove the contents of the paper with which he had been served, but Lord Ellenborough would not permit it. On a rule nisi for a new trial on this ground having been obtained, his Lordship, in making it absolute, said that the privilege of attorney only extends to confidential communications from his client, and not to communications from collateral quarters, although made to him in consequence of his character of attorney.

The case of Mackenzie v. Yeo (2 Curtis, 866) is rather stronger, the decision being that information collected by a solicitor to a party opposing a codicil from a subscribed witness to the codicil, is not privileged; the reporter adding a semble that it would be otherwise if collected by the client and communicated to the solicitor. There Sir Herbert Jenner, who delivered judg ment, noticed the case of Desborough v. Rowlins (3 Mylne & Cr. 515),cited by Mr. Giffard; and also Greenhough v. Gaskell (1 Mylne & K. 98), relied on by the Attorney-General. Desborough V. Rawlins was a case where a bill had been filed by the insurers of a life against the insured, and to which the solicitor to the insured was made a defendant; and it stated that on a particular day the insured had been informed that the life in question was bad, and that the solicitor was present at the communication. The Lord Chancellor was of opinion that the solicitor was bound in that case to divulge what had taken place. In Greenhough v. Gaskell the question was whether the privilege extended to communications made before legal proceedings were actually commenced. and Lord Brougham said, that as regards counsel and attorney, it did not appear that the protection is qualified by reference to proceedings pending or in contemplation. And, he added, “If, touching matters that come within the ordinary scope of professional employment, they (counsel and attorney) receive communication in their professional capacity either from a client or on his own account, and for his benefit in the trans

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action of his business, or, which amounts to the same thing, if they commit to paper, in the course of their employment on his behalf, matters which they know only through their professional relation to the client, they are not only justified in withholding such matters, but bound to withhold them, and will not be compelled to disclose the information or produce the papers in any court of law or equity, either as a party or as witness." Noticing the above Sir Herbert Jenner says, "An attorney is not to disclose what has come to his knowledge solely in his professional capacity immediately from his chent, or immediately from his connection with his client. I take that to be the result of all the cases." But further on he says, "The matters communicaied must have come directly or immediately from the client, for if the facts come collaterally from another person the attorney will be bound to answer.”

The case of Woolley v. The North London Railway Company (38 L. J. 317, C. P.) does not seem to us to go very far in favour of the Attorney-General. The Lord Chief Justice himself there said that "reports of information obtained confidentially, with a view to litigation, either actually existing or contemplated, would be privileged," and he relied upon The London Gas Light Company v. Chelsea (28 L. J. 275, C. P.). But in that case discovery of reports made as to the quality and quantity of gas made with reference to the litigation was ordered. But Lord Chief Justice Bovill, in Woolley's case, considered that he was supported by Mr. Justice Willes in the Gas Company's case, in laying down the distinction between reports furnished in the ordinary course and special reports in the nature of evidence to be used in a pending litigation. Woolley's case being an action against a railway company for injuries, it was sought to obtain inspection of the reports of the scientific men employed by the company. His Lordship refused inspection, and said: It is clear that these are documents obtained with a view to the litigation, and if we were to order such documents to be produced it would encourage parties to expect to have the briefs of their opponents for inspection. . . . The documents come within the class of documents obtained confidentially with a view to litigation."

In that case Mr. Justice Byles doubted whether the Common Law Courts were bound to follow the Court of Chancery, as the 50th section of the Common Law Procedure Act of 1854 says that the Judge is to do what is just. Mr. Justice Montague Smith laid down the rule very briefly: "If documents are obtained for the purpose of assisting one party to a litigation, and for informing his legal adviser, they are documents which ought not to be produced."

We do not think it necessary to look beyond the authorities we have cited, and the conclusion is clear. Lady Doughty's case is quite new. No case referred to is distinctly on all fours. The evidence of which a proof was prepared in 1870 was scarcely a "confidential" communication-the expression so pointedly used by the Lord Chief Justice in Woolley's case. Nor was it a communication coming direct from the client. But did it not come, to use the words of Sir Herbert Jenner, immediately from the attorney's connection with the client; or, on the other hand, may it be said to have come "collaterally from another person ?" It is difficult to settle these points satisfactorily without considerable thought, and we shall be very glad to have Mr. Serjeant Ballantine's promise fulfilled, and the matter brought forward for judicial settlement. We are inclined to think that the plea of privilege must prevail, but we cannot admit that the principle is so plain as the Attorney-General supposed.

THE PLEA OF PURCHASE WITHOUT NOTICE. WITH great satisfaction we observe that in accordance with the views advocated (LAW TIMES, vol. 1. p. 154), the rule of equity protecting purchasers without notice has been restored nearly, if not absolutely to its original integrity, by the decision of the Full Court of Appeal in Pilcher v. Rawlins (25 L. T. Rep. N. S. 921), in which the decision of Lord Romilly in the same case (23 L. T. Rep. N. S. 756) was reversed. A purchaser can never be quite sure that he has acquired the legal estate, for deeds or wills may be suppressed (we are not now speaking of land in register counties, or of indefeasible statutory titles), and it is, therefore, of grave importance that additional risks should not be thrown in the way of an honest purchaser, by affecting him with suppressed or latent equities. It is, therefore, also of grave importance that the rule we are considering should not be encroached upon by unmeaning subtleties, rendering it impossible to advise with confidence whether it does or does not apply to any given case. The Lord Chancellor, while admitting that the rule applies to the case of Pilcher v. Rawlins, in which a trustee selling, knowingly and wilfully suppressed the fact of the existence of prior equities, declined to say that there is any broad rule that equity will not interfere unless there be something to affect the conscience of the purchaser.

Such a rule would have invalidated the Lord Chancellor's own decision, when Vice Chancellor, in Carter v. Carter (3 K. & J. 617), as to which the Lord Chancellor said, "I cannot. as at present advised, feel that I should decide Carter v. Carter differently now han when it came before me." The Lord Chancellor considers that in Carter v. Carter the doctrine is not "to be carrel so far as

to apply to a case where neither the purchaser nor the person bargaining with him were aware of the existence of any interest in any other party." With the greatest respect for the Lord Chancellor, we entirely agree in Lord Justice James' straightforward repudiation of Carter v. Carter as an authority. Why is a purchaser to be placed in a worse position because an equity is merely latent, than he would be if the same equity were wilfully suppressed? We commend the Lord Justice James' judgment to the attentive perusal of our readers. Lord Justice Mellish did not think it necessary to give ary opinion whether Carter v. Carter was rightly decided or not, but thought that if it was to be supported, it must be supported on the ground that there were such peculiar circumstances in the case that it would be inequitable that the purchaser should set up and rely on the will under which he acquired the legal estate. We infer from this that, in the opinion of Lord Justice Mellish, a purchaser is not to be deprived of the benefit of the legal estate unless there be something to affect his conscience, and cannot feel much doubt that Carter v. Carter is a case not to be followed. It is, at the same time, satisfactory to find that the present Lords Justices of Appeal are determined to prevent any unreasonable extension of the doctrine of constructive notice, as may be scen by a perusal of their recent decision in the case of Ratcliffe v. Barnard (19 W. R. 764) affirming the decision at the Rolls in the same case (24 L. T. Rep. N. S. 215.)

COUNTY COURTS IN CANADA.

A MEASURE has been introduced into the Legislative Assembly of the Province of Ontario, to consolidate and amend the Acts respecting County Courts.

It provides that except as hereinafter provided, the said County Courts shall not have cognisance of any action: (1.) Where the title to land is brought in question, or in which the validity of any devise, bequest or limitation under any will or settlement is disputed; or (2.) For any libel or slander; or (3.) For criminal conversation or seduction; or (4.) Of any action against a justice of peace, for anything done by him in the execution of his office, if he objects thereto.

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Subject to the exceptions aforesaid, the said County Courts shall have jurisdiction:-(1.) In all personal actions where the debt or damages are unliquidated, and the amount claimed does not exceed the sum of two hundred dollars. (2.) In all causes and suits relating to debt, covenant and contract, to four hundred dollars, where the amount claimed is liquidated, or ascertained by the act or acknowledgment of the parties, or by the signature of the defendant. (3.) To any amount on bail bonds given to a sheriff in any case in a County Court, whatever may be the penalty. (4.) On recognisances of bail taken in a County Court, whatever may be the amount recovered or for which the bail therein may be liable. (5.) Actions of ejectment for the recovery of corporeal hereditaments, when the yearly value of the premises, or the rent payable in respect thereof does not exceed two hundred dollars, in the following cases, namely-(a) Where the term and interest of the tenant of any such coporeal hereditament shall have expired or been determined by the landlord or the tenant by a legal notice to quit; (b) Where the rent of any such corporeal hereditament shall be sixty days in arrear, and the landlord shall have the right by law to re-enter for nonpayment thereof; (c) Where the mortgagor or the owner of the equity of redemption is in arrear for principal or interest, whether the said mortgagor or owner of the equity of redemption, or any tenant of such mortgagor or owner, is in possession of the said property, or any part thereof; provided the mortgage deed entitles the mortgagee to distrain for arrears of interest; (6) Actions of ejectment, when neither the yearly value of the lands, tenements, or hereditaments, nor the rent payable in respect thereof, shall exceed the sum of one hundred dollars by the year. (7.) Actions in which the title to any corporeal or incorporeal hereditaments shall come in question, when neither the value of the lands, tenements, or hereditaments in dispute, nor the rent payable in respect thereof shall exceed the sum of one hundred dollars by the year, or in case of an easement or licence where neither the value nor the reserved rent of the lands, tenements, or hereditaments, in respect of which the easement or licence is claimed, or on, through, over, or under which such easement or licence is claimed, shall exceed the sum of one hundred dollars by the year. (8.) Actions for malicious prosecution, illegal arrest, illegal distress, false imprisonment, assault, libel, slander, seduction, or other action of tort brought in either of the Superior Courts, and in which the said Superior Courts or a judge thereof, upon being satisfied by affidavit or otherwise that the plaintiff has no visible means of paying the costs of the defendant, should a verdict be not found for the plaintiff, makes order that unless the plaintiff shall within a time to be therein mentioned give full security for the defendant's costs to the satisfaction of one of the masters of the said Superior Court, or satisfy the judge that he has a cause of action fit to be prosecuted in the Superior Court, the said cause shall be remitted to the County Court to be tried as if originally commenced in such County Court; and thereupon all proceedings in the said action in such Superior Court shall be stayed, and upon filing such order and the writ and pleadings or copies thereof in the office of the County Court, proceedings shall there

after be carried on in such County Court as if the said action had originally been commenced in such County Court. (9.) In interpleader cases, where any claim is made to any goods or chattels taken or intended to be taken under an attachment against an absconding debtor, or in execution under any process issued out of any County Court, or to the proceeds or value thereof, all the proceedings shall be had or taken in the County Court or before the Judge thereof within the jurisdiction of which the said goods or chattels are so taken or intended to be taken; provided it shall be lawful for such court or Judge, if, upon the return of the rule or order it shall appear more convenient or conducive to the ends of justice to order that the said proceedings be had and taken in the County Court from which such process issued, or any other County Court, as such court or Judge may order.

The Bill then goes on to provide that the defendant in any such action of ejectment, or in which such title to any land or any annual or other rent, easement, licence, duty, or other custom or thing comes in question, or his landlord, may within one month from the day of service of the writ apply to the court or Judge for a summons to the plaintiff to show cause why such action should not be tried in one of the Superior Courts of law, on the ground that the title to lands, tenements, and hereditaments are of greater value than the said County Court has jurisdiction to try, or would be affected by the decision in such action; and on the hearing of such summons the court or Judge, if satisfied as to such value, or that the title to other lands would be affected, may order such action to be tried in one of the Superior Courts to be named in the said order, upon such terms as to costs or security as may seem just; and thereupon all proceedings in such County Court shall be stayed, and upon filing such order and the writ and pleadings or copies thereof in the office of the clerk or deputy-clerk of the Crown of such Superior Court, proceedings shall thereafter be carried on in such Superior Court as if the said action had originally been commenced in such Superior Court.

Power is given to the judges to change the venue in any action, according to the practice now in force in the Superior Courts.

The County Courts are to be empowered to issue writs of execution against the person, lands or goods, writs of subpoena, rules on the sheriff, and all other rules, orders, and proceedings into any other county to be served or executed therein; and judges' summonses and orders may be issued in like manner, and all such writs, rules, summonses, orders and proceedings, shall be of equal force and effect, and as binding as if the same had issued from the court or by the judge of the district, to or into which they may be so issued, and all subsequent proceedings thereupon shall be carried on in the court in which the action has been brought or the judgment entered.

They may also issue writs of fieri facias against goods and against lands, and writs of capias ad satisfaciendum against the person in like cases upon the same terms, and in the same order, as similar writs may be issued in the Superior Courts of common law.

In any case not expressly provided for by law, the practice and proceeding of the several County Courts will be regulated by and conform to the practice of the Superior Courts of common law, and the practice for the time being of such Superior Courts shall in matters not expressly provided for apply and extend to the County Courts and to all actions and proceedings therein.

The several County Courts are to have and exercise the same powers to enforce their rules, regulations, and directions as the Superior Courts of common law possess, and may punish by fine or imprisonment, or by both, for any wilful contempt or resistance to their regular process, rules or orders, but such fine shall in no case exceed one hundred dollars, nor shall such imprisonment exceed six months.

By a subsequent clause, all issues of fact and assessments of damages in the Superior Courts of common law relating to debt, covenant and contract, where the amount is liquidated or ascer tained by the signature of the defendant, may be tried and assessed in the County Court in the county where the venue is laid, if the plaintiff desire it, unless a judge of such Superior Court shall otherwise order, and upon such terms as he may deem meet the postea shall be entered in words, or to the effect of form "B" in the said schedule.

And also, all issues of fact and assessments of damages in in actions in any County Court, may be tried and assessed, at the election of the plaintiff at any sittings of Assize and Nisi Prius for the county in which the venue is laid, without any order for that purpose.

Then as to suits in equity matters it is proposed that in case any equitable plea or equitable replication, other equitable pleading be filed in any cause depending in any of the said County Courts, the plaintiff or the defendant may within one week after the filing and service of a memorandum to the effect hereinafter mentioned on the opposite party or his attorney, obtain an order transferring the trial of such cause to the Court of Chancery, and thereupon such proceedings shall be had, and the cause shall be tried and adjudicated as if the same had been originally brought in the said Court of Chancery. And if at any time before the trial of the said cause, the opposite party objects to the transference of the said cause to the said Court of Chancery, or to the place of trial of the same, his objections shall be brought before the said County Court

or Judge, and the said court or Judge, after hearing the parties, may make such order as to the issue to be tried, or the trial of the said cause in the said County Court or Court of Chancery, or the place of trial of the same, or such other order as to the said court or Judge may seem just, subject however to an appeal to the said Court of Chancery, which appeal shall be brought in the same manner as appeals to the Superior Courts of law.

Concerning appeals, it is provided that in case any party to a cause in any of the said County Courts is dissatisfied with the decision of the said court, upon any point of law arising upon the pleadings, or respecting the reception or rejection of evidence, or with the Judge's charge to the jury or with the decision upon any motion for a nonsuit, or for a new trial, or in arrest of judgment non obstante veredicto, or on a special case, or in interpleader, ejectment or replevin cases; the said court or a Judge thereof, on the application of such party his counsel or attorney shall stay the proceedings for a time, not exceeding ten days, in order to afford such party time to execute and perfect the bond required to enable him to appeal to one of the Superior Courts of law.

NEMO DEBET ESSE JUDEX IN PROPRIA SUA CAUSA. To secure the due administration of justice, the principle contained in the above maxim has been deeply engrafted in our system of jurisprudence. A sounder or a more just principle is not recognised by our law. The law, to be obeyed, must be fairly and impartially administered. This could never be done if every. one were allowed to be the judge in his own cause; and if interested persons were permitted to sit as Judges, there could not be that public confidence in the administration of the law which alone can secure its due and proper observance.

The slightest pecuniary interest in the result of a cause has always been held enough to incapacitate a person from acting as judge, or, at any rate, to render voidable his judgment, and, in many instances, a less direct interest has been held to have the same effect. Between the direct interest and the indirect there is, however, a considerable difference, for while the former is really a common law disqualification, the latter, in most instances, arises from statutory provisions.

In the case of Dimes v. The Proprietors of the Grand Junction Canal (3 H. of L. Cas. 759), which is generally looked upon as the leading case, the doctrine that a pecuniary interest in the result of a cause rendered a judgment voidable was fully decided. The facts of that case were as follows: A bill in Chancery was filed by the Canal Company against a landowner in a matter relating to their interest as copyholders in certain lands. The suit came on for hearing before the Vice-Chancellor, and the company were successful in obtaining the relief sought. This decision was appealed against, and the Lord Chancellor (Lord Cottenham) on such appeal affirmed the order of the court below. But Lord Cottenham was at the time a shareholder in the company; of which fact, however, the plaintiff was not then aware. A further appeal was made to the House of Lords, and the fact of the Lord Chancellor being a shareholder in the company having in the meantime become known to the appellant, it was insisted upon as a ground for setting aside the decision of the Lord Chancellor. And this was done; the court holding that on the ground of interest the decree of the Chancellor was voidable, and should be reversed. 'It is of the last importance," said Lord Chief Justice Campbell, "that the maxim that no man is to be a judge in his own cause' should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest. Since I have had the honour to be Chief Justice of the Court of Queen's Bench, we have again and again set aside proceedings in inferior tribunals because an individual who had an interest in a cause took part in the decision. And it will have a most salutary effect on these tribunals when it is known that this high court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and should be set aside. This will be a lesson to all inferior tribunals to take care not only that in their decisions they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence."

Some remarks on this case were made on the opening of the case The London and North Western Railway Company v. Lindsay (3 Macq. 114), arising from the absence of Lord Wensleydale, on account of his being a shareholder in the company. Lord Chan cellor Cranworth observed, "that in the present state of our social relations, when almost everybody has shares in some one or other of these companies, to suppose that that disqualifies them from discharging judicial functions in cases in which those companies are concerned is a very dangerous doctrine." Sir R. Bethel (then the Attorney-General) concurred with the Lord Chancellor, and added, that in Dimes v. The Grand Junction Canal Company, "the rule was carried to a very great extent that in former times it was not the rule acted upon, for Lord Eldon, who was a holder of Bank stock, never for a moment considered that he was disqualified from adjudicating in a case in which the Bank was concerned." We have not been able to find out Lord Westbury's

authority for this statement. Doubtless inconvenience may be

now and then occasioned by the rule in question; but it can always be avoided. If the other side knew that the Judge was interested and allowed the trial to proceed, such tacit consent would preclude him from obtaining any relief afterwards. In most cases before the superior Judges parties to actions would invariably waive the objection, if the Judge himself felt inclined to proceed with the case. An occasional inconvenience would not justify the abrogation of a safeguard so necessary to the proper administration of justice.

It is not, however, in the Superior Courts that we find many instances of interested judges sitting in judgment. It is at Petty Sessions, Quarter Sessions, and other inferior courts that we principally find infringements of the above rule. And considering the extensive jurisdiction and varied powers which these latter authorities possess, and further, that the justices are invariably untrained men, it becomes very necessary that the rule in question should be clearly laid down, and this has always been done when the matter has been brought before the Queen's Bench on appeal or certiorari. The cases on the point are numerous.

Chief Justice Holt, in an anonymous case (Salk. 396) mentioned the fact that the Mayor of Hereford was laid by the heels for sitting in judgment in a cause where he himself was lessor of the plaintiff in ejectment, though he by charter was the sole judge of the

court.

In Reg. v. The Justices of Hertfordshire (6 Q. B., N. S., 753), it was held that if any one of the magistrates hearing a case at sessions be interested in the result the court is improperly constituted, and an order made in the case will be quashed on certiorari. It is no answer to the objection that there was a majority in favour of the decision, without reckoning the vote of the interested party, nor that the intended party withdrew before the decision, if he appears to have joined in discussing the matter with the other magistrates. But the mere presence of an interested magistrate on the bench during part of the hearing of an appeal, evidence being forthcoming that he took no part in the proceedings, but came there for another purpose and did not in any way influence the decision, was not sufficient ground for setting aside an order of sessions made on such hearing, Reg. v. The Justices of London (18 Q. B. 421, n). Lord Chief Justice Campbell, however, characterised the presence of the magistrate as an indiscretion, and to mark his disapproval of it he discharged the rule without costs.

The disqualification does not arise merely where the justice has a direct pecuniary interest in the result of the case, but is equally applicable to many cases of indirect interest. As in the last-mentioned case, where the only interest of the magistrate arose from his having been the justice whose original decision was appealed against. In Reg. v. The Justices of Surrey, this was very clearly carried out. The justices, exercising their powers under the Licensing Act (9 Geo. 4, c. 61), refused to grant an excisable licence. The case was carried on appeal to quarter sessions, and at the hearing and determination of the appeal, one of the justices, who refused the licence, was present on the bench, and during the hearing conversed with some of the magistrates. His affidavit (when the matter came on before the Court of Queen's Bench) stated that he did not recollect being present at the hearing, nor conversing with any of the magistrates hearing the appeal, and that he did not converse with them on any matter relating to the appeal, nor act in the hearing of the appeal. It was held, nevertheless, that being present he formed part of the court, and therefore the order of sessions was invalid. Mr. Justice Coleridge remarking that it was absolutely essential to the administration of justice that it should be beyond any suspicion (1 Jur. N. S. 1138. Q. B.).

Very analogous to this class of cases is the following—and it is certainly open to very grave objections-but we are not aware that it has as yet been formally objected to. It is where a stipendiary magistrate is also the chairman of Quarter Sessions. As a stipendiary he is called upon to hear cases originally, and in any case to dismiss the summons, deal with it summarily (if it is open to such), or to commit. If he commits, and the offence is such as is within the jurisdiction of the Court of Quarter sessions, the accused again comes before him for trial. Of course it is only reasonable to believe that he had already formed an opinion on the case before he satisfied his mind that it was a case for committal; so that when the case comes before him again he must be something more than human if he does not approach it with a preconceived opinion. This is certainly unfortunate, and is not calculated to sustain the public confidence. It is a practice that cannot be defended, and should, most undoubtedly, be discontinued.

class interest.

In many cases justices of the peace belonging to certain trades or callings are disqualified from sitting as justices in cases arising under statutes affecting such trades or callings; and here the interest need not be a personal and direct interest, but a mere For instance, justices of the peace who are brewers, maltsters, and distillers, are not allowed to sit as magistrates in the granting of licences for the sale of ale or other intoxicating liquors under the 9 Geo. 4, c. 61; and in certain cases those allied in blood or by marriage, or in partnership with them, are also incapacitated. No miller, baker, or mealman, being a justice, can sit to try offences under the Bread and Flour Act

(6 & 7 Will. 4, c. 37). Under the Truck Act (1 & 2 Will. 4, c. 37), those engaged in the trades enumerated in sect. 21 are disqualified. Officers in the Army and Navy, being justices, cannot hear cases arising under the annual Army and Navy Mutiny Acts. Where a justice is the owner of a factory, or is the father, brother, or son of an owner, he cannot try offences under the Factory Acts; nor under the Mines Act can the owner of a mine, or the relation of an owner, act as a justice in cases relating thereto. There are some other instances in which similar statutory disqualifications prevail, but we need not enumerate them here. All these are statutory exceptions, and the reason for them is obvious. Trade or class influence is quite as powerful to bias or prejudice men's minds as a more direct and pecuniary interest. Doubtless no magistrate belonging to any of the above callings, if he were permitted to sit, would wilfully and knowingly allow himself to be biassed, or be guilty of any partiality or unfairness; but there is such a thing as an involuntary prejudice, and nothing being more calculated to warp the judgment more than the feelings engendered by a class interest, it has been deemed necessary by the Legisla ture to make specific provisions by which the administration of justice, at any rate in certain cases, may be beyond the slightest suspicion. But the principle has not been carried far enough, for there are various other cases in which prejudice is as likely to enter as in the above enumerated exceptions. For instance, the law at present requires a property qualification for justices of the peace. This necessitates the ownership of land, and the fact is that almost universally the county magistracy is entirely formed of the landed gentry; and, without exception almost, they are strict game preservers, as might naturally be expected in a country like this, where field sports are as it were indigenous to the soil. They have clearly, therefore, an interest in putting down poaching. Still they are allowed to adjudicate in all cases arising under the Game Laws, save where the trespass is committed on their own land. We admit there is wanting a direct personal interest in the result of the case, except when a justice forgets the maxim heading this article and tries a case where the offence was committed on his own land, as sometimes has happened; but we contend that a strict game preserver has as great an interest in putting down poaching, and is likely to be as biassed in such cases, as a baker would be in adjudicating on matters arising under the Bread and Flour Act. And this the inore especially as the poacher is a local offender and is as likely to have trespassed on the land of the sitting magistrates as on the land on which he was caught. Among the notices of motion for the present session of Parliament given at the close of the last, is one by Mr. Charles Seely, and has for its object an improvement in this respect, by transferring the jurisdiction which justices of the peace now exercise under the Game Laws to Judges of County Courts. This undoubtedly would remove any objection, and we hope that the honourable member will be able to carry his proposal into effect.

To a certain extent analogous to the Game Laws are the Salmon Fishery Laws. The protection of salmon is much like the protection of game, and except in navigable rivers is principally a benefit to the riparian landowners. By sect. 20 of the 24 & 25 Vict. c. 109, such landowners were empowered to form associations for the protection of Salmon Fisheries. On the 23rd Feb. 1861, a person was convicted on an information laid against him by a watcher, appointed by such an association of an offence under the Act. The convicting justices were members of the association, and one of them was a committeeman, and had been present at a meeting of the association which authorised the proceedings to be taken against the accused. It was held that the conviction was bad on the ground of interest in the justices: (Reg. v. Allan, 9 L. T. Rep. N. S. 761; 4 B. & S. 915.) In this case Mellor, J. said, "It is highly desirable that in proceedings under such a statute as this, justice should be administered by persons who cannot be suspected of improper motives. Here one of the convicting justices was not only a member of the association, but was present at a meeting which authorised the proceeding to be taken. It would be mischievous if justices so circumstanced could sit upon the inquiry." And still, in the face of this, which clearly shows how, unobserved, many extraordinary provisions creep into Bills and are allowed to become law, the Legislature enacts by the 28 & 29 Vict c. 121, that no justice shall be disqualified from hearing cases under the Act by reason of his being a member of a board of conservators, except where the offence is one which was committed on his own land. We have known cases where the proceedings have been instituted by a board of conservators, at the hearing of which the prosecution was conducted by the clerk of the board of conservators, and some of the magistrates hearing them were active members of such board. Is it surprising therefore that the decisions arrived at were warmly discussed, and gravely disapproved of by the public, and the good faith of the magistrates impugned. Mr. Seely would do well if he included in his motion the transfer of the jurisdiction of the magistrates under the Salmon Fishery Acts to County Court Judges.

If a person waives his objection, he cannot afterwards take advantage of the ground of interest and try to upset a decision unfavourable to him, "for nothing is better settled than this, that a party aware of the objection of interest, cannot take the chance of a decision in his favour, and afterwards raise the objection:"