THE LAW TIMES, THE JOURNAL OF THE LAW AND THE LAWYERS FROM NOVEMBER 1869 TO APRIL 1870. Portsmouth Borough Police Court-The Petroleum Acts which we desire to notice here, and they are legal education and the amalgamation of the two branches of the Profession. Some time since, opinion was very strongly expressed in favour of 11 amalgamation, and the authority of a Judge 14 legal education to both branches, and make a CAN nothing be done to facilitate the business in the Court of Chancery? A case has come within our personal knowledge where a friendly administration suit, commenced three years ago, is not yet concluded. There was only one 20 doubtful point of law, which was determined by the VICE-CHANCELLOR in six months. The estate was in securities readily convertible into money, and there were no debts to be collected. An accountant would have settled the whole parties entitled under the will have been kept matter in two months. But for three years the out of interest as well as principal, and if they had been poor must have starved while the estate was being slowly wound-up. Delay means costs, and so, besides the being kept out of their money, they find a large share of it swallowed up in costs. Why should not the Court of Chancery appoint official trustees to wind-up estates of testators and intestates, pre- cisely as official liquidators wind-up joint-stock companies. We know of no greater improve- Advertisements specially ordered for the first page are charged one-fourth more than the above scale. In the Queen's Bench on Thursday the LORD ON Thursday the Telegraph published an article on what it calls the opening of the Westminster season, in which it refers to the evils of profes- use in moralising about it. So long as there is wickedness or injustice in the world-so long as there are two sides to a question-so long as communities must be governed by law-so long must we have advocates who will take either one side or the other. Civilised men know this-- Court, that a governess dismissed without proper notice is entitled to salary in lieu of notice, and in addition the payment of her board and lodging during the period of the required notice. "We think," it remarks, "that this is a very just decision, but some persons may not quite comprehend upon what principle of law it rests. A governess is not a menial servant, with regard to the rule as to dismissal: (Todd v. Kerrich, 8 Ex. 151; 22 L. J. 1, Ex.) The menial servant may be dismissed according to the rule which prevails. Those in the position of governesses are outside this rule, and whilst they should do all they can to enter into another service (Hochester v. De la Tour, 2 E. & B. 690; 22 L. J. 458, Q. B.) there would appear to be no doubt that damages would be recoverable in respect of the cost of subsistence during the time in which she ought to have been retained in the service. We are not aware that the point has been expressly decided before. If it has we should be glad to be referred to the case." THE LATE MR. DALY. A CASE has now come before us which illustrates some remarks which we recently made on the want of cohesion amongst the members of the Bar. Mr. DAVID BINGHAM DALY died during the long vacation, and has left his wife and children dependent upon the result of an appeal-an appeal which ought not to be necessary, and would not be necessary if an institution similar to the Solicitors' Benevolent existed amongst the members of the Bar. This appeal, however, we feel in duty bound to bring prominently before the Profession. The circumstances attending Mr. DALY's last days were particularly melancholy. His wife became mentally affected before his death, and his children are now practically orphans. adapted to almost any course which it might ultimately be deemed advisable to adopt, we have no doubt that it represents very nearly the decision of the whole Cabinet, or of the most influential section of it, and, therefore, the plan thus propounded deserves the most attentive consideration. The Times commences, as is usual in ministerial speeches, when submitting a measure to Parliament and the country, with a statement of various ways in which it is proposed to deal with the question, and these it classifies under four heads. Three of these, it says, "embrace the various plans for regulating the conditions of tenancy, while the fourth embraces those for abolishing tenancy, more or less gradually, and substituting proprietorship." like solution," might it not have said the most The Times admits that "the most businessexisting law, with a view to encourage written "honest solution," would be "a revision of the agreements and all other arrangements conducive to good cultivation, on the basis of voluntary contract," guaranteeing compensation to tenants for improvements made with the landlord's consent. But the Times objects to this honest and business like method of dealing with bargains made between two private persons, that it would not give security of tenure. But is that a substantial objection? Does an agreement between B. and C. for the use of an article, land, money, or chattel, for a stated term, give to the borrower any claim whatever, moral or otherwise, to the use of it for a longer period? The security against wanton eviction is the interest the landlord has in keeping a good tenant, and the loss that always more or less attends a removal, especially if he has to pay certain that a landlord would not evict a good for improvements effected by the tenant. It is therefore, that it would not content the people anywhere. It is upon this as the basis that, according to the Times, the Government plan is to start, with modifications which must be deferred for consideration next week. In the meanwhile, Mr. CAIRD, whose authority on such a subject is very high, has published a plan which appears to be eminently sober, sensible, just, and practicable, and we propose to examine it side by side with the plan foreshadowed by the Times, and see which is to be preferred, or if a good measure might not be framed out of both. THE BALLOT IN PRACTICE. THE ballot box is put forward as a panacea for election. Certainly it would cure some; but the acknowledged evils that attend a popular That is the question. would it not beget others and greater ones? If the vote by ballot was an untried novelty, it would be permissible to argue it upon assumptions, probabilities, and conjectures. But inasmuch as it is no novelty, but is in actual operation in many countries, why should it not be argued by reference to the positive experience of its actual working where it has been adopted and had a fair trial? What should we say of a press or a people who debated the question of Parliaments without reference to their operation in the countries that already possess them. Yet is this the course taken by almost all who write and speak on the subject of the ballot. They argue as to what it will do, and what it will not do, in German fashion, from their own inner consciousness, in apparent ignorance that there is an abundance of facts to determine their that in this, as in other cases, a grain of fact is judgments and illustrate their arguments, and "It is earnestly hoped," it is said, "that this tenant, and would it not be intolerable tyranny worth a bushel of conjecture and hypothesis. appeal to the legal profession and to the friends of Mr. DALY may be the means of raising such a sum as, properly invested, will suffice to relieve his family from their present distress, and to provide for the children's being properly educated and placed out in life. Of Mr. DALY's capabilities as an advocate we do not presume to speak. but to his genial manner, his kindliness of heart, his many excellent qualities, whether as husband, father, friend, or member of society, we trust we may refer as constituting strong claims upon the sympathy and assistance of those with whom he was professionally or personally brought in contact. The Right Hon. RUSSELL GURNEY, Recorder of London, Mr. MONTAGUE CHAMBERS, M.P., Q.C., and Mr. THOMAS CHAMBERS, M.P., Q.C., the Common Serjeant, have kindly consented to allow their names to be used as references, and to act, with other subscribers, as a committee. Subscriptions, in the mean time, may be paid to the credit of the " Daly Fund," at the Chancery-lane Branch of the Union Bank of London." We are glad to see that already a handsome response has been made to this appeal, but much more is required for the attainment of the desired end. THE LAND LAW QUESTION. THE Times, in an article manifestly inspired, under the transparent pretext of a prophecy as to what the Government will probably do, manifestly publishes to the world what is intended to be done. Neither the combined Cabinet, nor any member of it, would so far depart from what is perhaps a necessary etiquette, as to write a letter or make a speech indicating the scheme of a measure that is not yet in definite shape, or anticipate the communication which the Parliament expects to be first made to itself. But it is not uncommon for such hints to be conveyed to the journals as will enable them to try the ground before the Ministers commit themselves. Thus they are enabled to ascertain the current of public opinion in time to defer to it; they learn how far they can venture, and what they dare not attempt: debate is provoked, and arguments and suggestions are offered on either side of which the Government may avail itself, and the equal danger of falling short of the general opinion, or going beyond it, is avoided. From the manner in which the Times handles the subject, and the suddenness with which it has arrived at a judgment upon it, after beating about the bush for several weeks with articles to prevent him by law from removing a bad tenant? The next mode, says the Times, is that which would extinguish tenancies at will, and convert the farmers into leaseholders. The objections to this are patent. It invades the rights of property. If landlord and tenant prefer to reserve the privilege of parting at any time desired by themselves, upon what principle of justice are they to be prevented from doing so? That the Irish tenants prefer a holding from year to year to leases, is proved by the fact that there are few leases, the objection always coming from the tenant, and not from the landlord, and the reason is, that tenants do not like to be bound by the covenants of a lease, which would be enforced, and they prefer to rely upon the generosity of the landlords. But the agitators tack to their demand for long leases that the rent should be fixed by valuation. Why should property in land be exempted from the ordinary rule which prevails with all property-the liberty of contract? None can so well judge what land is worth as the parties who want it. If B. is willing to give 57 more than C., why should C. be preferred and B. denied? That question is always argued as if it was between the landlord and tenant only; when it is, in fact, still more a question between rival tenants. Five men want a farm; which shall have it? The one entitled to it is he who is willing to give the most for it. Say that a law should compel a farm to be let at a rent fixed by a valuer, which of the five is to be preferred? And are not the four who have more enterprise and capital wronged by their rejection, they being able, as well as willing, to pay more rent, because, being better farmers, they can make more profit? The third suggested manner of dealing with the question is the adoption throughout Ireland of what is called the Ulster tenant right, a holding of which no definite description has been given by anybody, but which appears to be a vague kind of understanding between landlord and tenant that the tenant shall not be removed so long as he pays his rent, and that he shall be privileged to sell what may be called the good will of his tenancy to an incoming tenant. But this is merely a custom, not always observed, and looks indeed to us very much like the privilege almost permitted by reasonable landlords to the outgoing tenant to make the incoming tenant pay for half dressings, ploughed land, and sown crops. But just now there is springing up in Ulster itself a similar agitation to that which exists elsewhere against the Ulster tenant right as insufficient, and it may be presumed, Wherever the ballot is used, we hear the same complaints of fraud. There is never an election in Australia but the local newspapers teem with indignant assertions that the returns have been procured by some indirect practices. Bribery is an invariable theme of the newspaper critics, and if the unanimous verdict of the countries who have tried the ballot may be accepted as evidence, it does not in the least degree prevent bribery, but rather encourages it, by the facilities it offers, and the impunity it and vote by ballot; yet what do we see daily secures. In France there is universal suffrage thundered by the journals that oppose the Government; is it not one long and loud denunciation of the influence of the local officials exercised on behalf of the Government candidate? But if the ballot really gives the protection that is asserted by its advocates, will they explain how it comes to pass that French electors, voting by ballot, are controlled by the officials? and why the real opinion of France is not elicited at the ballot-protected elections? Turn to America, and what do we see? Precisely the same complaint as in France. The ballot secures neither freedom of voting nor honest returns. Bribery is rife at all elections; only the bribe is not hard cash, but the offices that are in the gift of the Government and facilities for jobbing with private Bills, familiarly known there by the expressive name of Lobbying. But this is not the sum of the vices which flourish under the vote by ballot; there is a worse wrong still than either we have named. The ballot box itself is abused. Detailed narratives of the tricks played with it, are continually coming to us across the Atlantic, reported not by prejudiced strangers but by their own newspapers. In proof of this we take the following from the American correspondent of the Times, published only last week; and we ask if this lesson of actual experience is not of more worth and weight than any number of arguments by those who have not seen it in operation? The autumn elections in Pennsylvania, Ohio, and Iowa, were held on the 12th of October, and resulted in a Republican victory by a reduced majority in each state. The total vote cast was light, being about one-fifth less than that cast last November at the Presidential election, showing that there was considerable apathy among the people. In Iowa, where Grant had 46.359 majority, where Grant had 41,428, the Republican majority the Republicans now get about 30,000; in Ohio, now is from 5000 to 8000; and in Pennsylvania, where Grant had 28,898, the Republicans now have barely 4000. The Republicans explain these reduced majorities by stating that they are a natural consequence of a reduced aggregate vote; but there is evidently more to cause the falling off than this. In Pennsylvania the Democrats allege that the Republican majority is produced by fraud, the Republicans having the entire control and manipulation of the returns. In Ohio the battle was for and against the repudiation question, and the near approach Pendleton and the Repudiationists made to a victory has had a gloomy effect in the bond market, and drooping prices are the result. These elections show, what is really the case in America, that there is wide-spread dissatisfaction with the dominant party, and President Grant's Adminis tration being one of the weakest we have had for years, its control of the General and State Governments are the only things that enabled it to gain a victory at all in Pennsylvania and Ohio. The real test of the Administration will come next year, when a new Congress is chosen, and when the Republicans, if they do not do much better than they are doing, will certainly lose the elections. On the 2nd Nov. 1869, New York, Massachusetts, Illinois, Minnesota, and several other States, hold elections, which will probably tell a further story of popular discontent, and certainly of popular apathy, for the registry of voters in New York and Brooklyn is scarcely one-half what it was last year. I have spoken above of Democratic allegations of fraud against the Republicans. The Republican majority for Governor in Pennsylvania is claimed by the Republicans to be about 4000, and was entirely procured in Philadelphia. Yesterday what is known as the "Board of Return Judges in this city, who count the returns, and who are an organisation controlled by the Republicans, met and declared the Republican majority in Philadelphia to be 4400. There was much excitement, and writs were got out of the courts to stop their proceedings on account of alleged frauds. They barricaded the doors and resisted service, so that the sheriff had to break the doors open. Evidence was given in court of forged returns, and other manipulations, in one case an entire ward of the city having been omitted; but the "Return Judges" carried out their object in spite of the court, and gave the award to their Republican friends. To secure political ends in America the most disreputable means are resorted to. JUDICIAL NONFEASANCE AND THERE is a very broad distinction between the consequences attaching to nonfeasance and misfeasance in judicial proceedings, and it is a distinction which should be kept well in mind. And this is the more important because the decided cases make it abundantly clear that torts are joint and several, and that the individual members of a court or a corporate body are liable for injuries sustained by reason of the nonfeasance of the court or corporation of which they form a part. It is a prominent principle that when a person has an important public duty to perform he is bound to perform that duty; and if he neglects or refuses so to do, and an individual in consequence sustains injury that lays the foundation of an action to recover damages by way of compensation for the injury that he has so sustained. A famous instance of the application of this principle occurred in the case of Ferguson v. Kinnoul, 9 Cl. & Fin. 251. That was an action against the members of a Scotch presbytery for refusing to admit to trial a presentee of a living, and the presentee claimed damages. It was held that the action would lie against the individual members of the presbytery. And here we see the difference between acts merely ministerial and acts which are judicial. It is remarked at p. 281, "If they had admitted that gentleman to his trial, and after taking him upon trial had come to the conclusion that he was not properly qualified, in that case it would have been a judicial decision, and might not have afforded a ground for supporting an action, although the party should have sustained damage in consequence of it." So in the case of justices of the peace. If they do something in the exeercise of their office which causes injury, they are protected. That is a judicial act, and may be an error of judgment. But in a case of non-feasance where for example they do not take an examination, an action lies: (Henley v. Mayor of Lyme Regis, 3 B. & Ad. 77.) A case illustrating the distinction between mere errors of judgment and wilful tort is that of Harman v. Tappenden, 1 East, 555, which decided that an action does not lie against individuals for acts erroneously done by them in a corporate capacity from which detriment happens to the plaintiff-at least not without proof of malice. Therefore we have two classes of cases, first, the failure or refusal to perform a public duty, and, secondly, the wrongful performance of such duty. This latter class may be subdivided into (1) where the act is a mere error of judgment, and (2) where the act is malicious. Now about the first class there can be no doubt, and for a nonfeasance an action lies against every individual member of a corporate body. Lord Brougham remarked in the case of Ferguson v. Kinnonul, "If the law casts any duty upon a person which he refuses or fails to perform, he is answerable in damages to those whom his failure or refusal injures. If several are jointly bound to perform the duty, they are liable jointly and severally for the failure or refusal. If it is a duty which the majority in number is bound to perform, those who by their refusal prevent the greater number from concurring, are liable to the party injured; that is, all those who constitute a majority, such majority committing the nonfeasance, violate the duty imposed, disobey the law, occasion the injury, and are liable for it." A NEW TRIALS AND APPEALS. THE Social Science Congress, amongst its other multifarious proceedings, turned its attention to "certain defects in County Courts." paper on this subject was read by Mr. SHERWOOD SMITH, who took as his text a case which occurred last year, and which we noticed at the time. In that case judgment was given for the plaintiff, on the ground that he was considered_more worthy of credit than the defendant. Immediately after the trial, evidence was tendered to the defendant proving the plaintiff to have sworn falsely, upon which the defendant gave notice of application for a new trial, but found that through taking that course, instead of appealing in the first instance, he had lost the right of appeal, and that although the grievance had increased, all remedy was at an end. This state of things, Mr. SMITH considered, called for reform, and that a suitor if aggrieved with the judgment of any court, ought to have a right of appeal to a higher one, under any circumstances that might arise. This is a point of some importance. If a suitor resorts to his remedy of a new trial, he waives his appeal as a matter of course, showing a preference for two trials in the inferior court to an appeal to the Superior Court. To allow a party two trials, and an appeal on the first, would be an abuse of legal process. As matters at present stand, a notice of appeal is good if given within ten days of the day of trial; and where a new trial was moved for, it was held in Foster v. Green (30 L. J. 263, Ex ; 6 L. T. Rep. N. S. 390; 6 H. & N. 793), that the ten days ran from the day of the motion, and not from the day of the trial. The substantial question is whether the time for appealing should be extended. But in the case noticed by Mr. SMITH, an The appeal would not have lain in any case. new trial was the only remedy, the question being one of fact. Unless, indeed, there had evidence were again improperly rejected on the been improper rejection of evidence, but if new trial, an appeal would lie from the new trial. As we said before it would be absurd to allow a new trial and an appeal from the first trial, and it would seem inexpedient to extend the time for appealing from the first trial to a period beyond the new trial. This might cause much confussion. We conceive, therefore, that what Mr. SMITH complains of is not so palpably a defect as he appears to imagine. The following is the paper of Mr. SMITH, to which we refer above : As to the second class, we will see when actions are barred on the ground that the wrong committed is a mere error of judgment. We have already referred to Harman v. Tuppenden, which was an action on the case to recover damages against the freemen who were jurors at a cerbain water court for causing the disfranchisement of the plaintiff. The plaintiff, it appeared, had broken a bye-law for which he had incurred certain penalties, and, happening to be personally present in the court, he was called upon to show cause why he should not pay the forfeitures; to which, not making any answer, but refusing to pay them, the court proceeded, taking the offence pro confesso, without any proof, to call on him to show cause why he should not be disfranchised, and they accordingly made the order. "This," said Chief Justice Lord Kenyon, was undoubtedly irregular, but it was nothing more than a mistake, and there was no ground to impute any malicious motive to the person making the order." In a note to this case (p. 563), Drewe v. Coulton, Launceston Spring Assizes 1780, is mentioned, and there Mr. Justice Wilson said, "If a justice of peace commit any error within his jurisdiction, I know of no case as if where such an action will lie against him; he convict upon evidence which turns out not to be true, and an action of false imprisonment be brought against him, the conviction is conclusive evidence in his favour. As to the case of a revenue officer he is a mere volunteer, and therefore he is liable for any mistakes he may make." One of the objects of this association being the This is an important point-to what extent is a improvement of the law and its administration, the volunteer liable for an error of judgment or mis- writer avails himself of the opportunity it affords of making known a very serious defect in the law take in the execution of a duty which he assumes of County Courts. In Oct. 1868 an action was to discharge? This question is one which we shall not now discuss, but simply note the law brought in the County Court to recover 401. as to errors of judgment committed by autho- damages alleged to have been sustained by the plaintiff through the defendant falsely representrised persons not acting within their authority. ing the report of a referee as to a tenant's responIn Doswell v. Impey, 1 B. & C. 168, Chief Justice sibility. On the trial the plaintiff denied that the Abbott said, speaking of commissioners of bank- language the defendant alleged he had quoted as rupts, "The general rule of law as to actions of that of the referee, was the language employed, trespass is plain and clear. If they do any act but words totally different. He also denied that beyond the limit of their authority they thereby he had levied a distress on his tenant's goods for subject themselves to an action of trespass; but rent not due, or had authorised a distress. The if the act done be within the limit of their autho-referee, who, up to the time of the trial, had denied ever seeing the defendant in his life, in his evirity, although it may be done through an dence for the plaintiff admitted that the defendant erroneous or mistaken judgment, they are not had called upon him and that he had used with rethereby liable to such action." There it was ference to the tenant, the identical words the plainheld that commissioners of bankrupts were not tiff had denied that the defendant had repeated to liable for imprisoning bankrupts who in their him. The defendant's version was in part corrobojudgment failed to answer satisfactorily the rated by his clerk, who had heard some of the questions put to them. words the plaintiff had denied, and on this point the case hinged. The judge gave a verdict for the plaintiff, on the ground that he believed him in preference to the defendant. Immediately after the trial evidence was tendered to the defendant, proving the plaintiff to have sworn falsely with reference to the distraint, a matter about which he could have had no doubt; and the defendant, considering that this should give the balance of testimony in his favour, acting on the advice of his solicitor, at once gave notice of an application for a new trial. At the hearing thereof the plaintiff's counsel, not denying that the plaintiff had sworn falsely, maintained that it was a point not material to the issue, and the judge, agreeing then determined to appeal, but found that, through therewith, refused a new trial. The defendant moving for a new trial instead of appealing in the first instance, he had now lost the right of appeal, and, although the grievance had increased, all remedy was at an end. The questions raised by this case are very important. It shows an absolute power to be vested in a single judge which is Underlying these questions is one of some moment, namely, what constitutes a Judge. Appointments by statute are of course plain. In other cases, the question must be one of fact. In the case we have cited above, Doswell v. Impey, the commissioners of bankrupts were by statute given a judicial discretion, and so long as they did not exercise that discretion maliciously they were protected. What amounts to a judicial discretion in other cases must be for the court. The subject which we have thus cursorily discussed is becoming daily more important by reason of the increase of corporate bodies, and some day it will have to be decided, more definitely than it has hitherto been, to what extent their fair exercise of their judicial discretion extends, and at what limit it becomes necessary to prove malice in an action on the case against the individual members for a misfeasance. i Court, that a governess dismissed without proper notice is entitled to salary in lieu of notice, and in addition the payment of her board and lodging during the period of the required notice. "We think," it remarks, "that this is a very just decision, but some persons may not quite comprehend upon what principle of law it rests. A governess is not a menial servant, with regard to the rule as to dismissal: (Todd v. Kerrich, 8 Ex. 151; 22 L. J. 1, Ex.) The menial servant may be dismissed according to the rule which prevails. Those in the position of governesses are outside this rule, and whilst they should do all they can to enter into another service (Hochester v. De la Tour, 2 E. & B. 690; 22 L. J. 458, Q. B.) there would appear to be no doubt that damages would be recoverable in respect of the cost of subsistence during the time in which she ought to have been retained in the service. We are not aware that the point has been ex pressly decided before. If it has we should be glad to be referred to the case." THE LATE MR. DALY. A CASE has now come before us which illustrates some remarks which we recently made on the want of cohesion amongst the members of the Bar. Mr. DAVID BINGHAM DALY died during the long vacation, and has left his wife and children dependent upon the result of an appeal-an appeal which ought not to be necessary, and would not be necessary if an institution similar to the Solicitors' Benevolent existed amongst the members of the Bar. This appeal, however, we feel in duty bound to bring prominently before the Profession. The circumstances attending Mr. DALY'S last days were particularly melancholy. His wife became mentally affected before his death, and his children are now practically orphans. "It is earnestly hoped," it is said, "that this appeal to the legal profession and to the friends of Mr. DALY may be the means of raising such a sum as, properly invested, will suffice to relieve his family from their present distress, and to provide for the children's being properly educated and placed out in life. Of Mr. DALY's capabilities as an advocate we do not presume to speak. but to his genial manner, his kindliness of heart, his many excellent qualities, whether as husband, father, friend, or member of society, we trust we may refer as constituting strong claims upon the sympathy and assistance of those with whom he was professionally or personally brought in contact. The Right Hon. RUSSELL GURNEY, Recorder of London, Mr. MONTAGUE CHAMBERS, M.P., Q.C., and Mr. THOMAS CHAMBERS, M.P., Q.C., the Common Serjeant, have kindly consented to allow their names to be used as references, and to act, with other subscribers, as a committee. Subscriptions, in the mean time, may be paid to the credit of the "Daly Fund," at the Chancery-lane Branch of the Union Bank of London." We are glad to see that already a handsome response has been made to this appeal, but much more is required for the attainment of the desired end. THE LAND LAW QUESTION. THE Times, in an article manifestly inspired, under the transparent pretext of a prophecy as to what the Government will probably do, manifestly publishes to the world what is intended to be done. Neither the combined Cabinet, nor any member of it, would so far depart from what is perhaps a necessary etiquette, as to write a letter or make a speech indicating the scheme of a measure that is not yet in definite shape, or anticipate the communication which the Parliament expects to be first made to itself. But it is not uncommon for such hints to be conveyed to the journals as will enable them to try the ground before the Ministers commit themselves. Thus they are enabled to ascertain the current of public opinion in time to defer to it; they learn how far they can venture, and what they dare not attempt: debate is provoked, and arguments and suggestions are offered on either side of which the Government may avail itself, and the equal danger of falling short of the general opinion, or going beyond it, is avoided. From the manner in which the Times handles the subject, and the suddenness with which it has arrived at a judgment upon it, after beating about the bush for several weeks with articles adapted to almost any course which it might The Times commences, as is usual in minis- therefore, that it would not content the people It is upon this as the basis that, according to In the meanwhile, Mr. CAIRD, whose authority on such a subject is very high, has published a plan which appears to be eminently sober, sensible, just, and practicable, and we propose to examine it side by side with the plan foreshadowed by the Times, and see which is to be preferred, or if a good measure might not be framed out of both. THE BALLOT IN PRACTICE. The Times admits that "the most business- The next mode, says the Times, is that which would extinguish tenancies at will, and convert the farmers into leaseholders. The objections to this are patent. It invades the rights of property. If landlord and tenant prefer to reserve the privilege of parting at any time desired by themselves, upon what principle of justice are they to be prevented from doing so? That the Irish tenants prefer a holding from year to year to leases, is proved by the fact that there are few leases, the objection always coming from the tenant, and not from the landlord, and the reason is, that tenants do not like to be bound by the covenants of a lease, which would be enforced, and they prefer to rely upon the generosity of the landlords. valuation. long leases that the rent should be fixed by The third suggested manner of dealing with Wherever the ballot is used, we hear the same complaints of fraud. There is never an election in Australia but the local newspapers teem with indignant assertions that the returns have been procured by some indirect practices. Bribery is an invariable theme of the newspaper critics, and if the unanimous verdict of the countries who have tried the ballot may be accepted as evidence, it does not in the least degree prevent bribery, but rather encourages it, by the facilities it offers, and the impunity it and vote by ballot; yet what do we see daily secures. In France there is universal suffrage thundered by the journals that oppose the Government; is it not one long and loud denunciation of the influence of the local officials exercised on behalf of the Government candidate? But if the ballot really gives the prothey explain how it comes to pass that French tection that is asserted by its advocates, will officials? and why the real opinion of France is electors, voting by ballot, are controlled by the not elicited at the ballot-protected elections? Turn to America, and what do we see? Pre- only the bribe is not hard cash, but the offices The ballot box itself is abused. The autumn elections in Pennsylvania, Ohio, and Iowa, were held on the 12th of October, and resulted in a Republican victory by a reduced majority in each state. The total vote cast was light, being about one-fifth less than that cast last November at the Presidential election, showing that there was considerable apathy among the the Republicans now get about 30,000; in Ohio, people. In Iowa, where Grant had 46,359 majority, where Grant had 41,428, the Republican majority now is from 5000 to 8000; and in Pennsylvania, where Grant had 28,898, the Republicans now have barely 4000. The Republicans explain these reduced majorities by stating that they are a natural without proof of malice. Therefore we have Now about the first class there can be no consequence of a reduced aggregate vote; but friends. To secure political ends in America the JUDICIAL NONFEASANCE AND THERE is a very broad distinction between the As to the second class, we will see when actions It is a prominent principle that when a person has an important public duty to perform he is bound to perform that duty; and if he neglects or refuses so to do, and an individual in consequence sustains injury that lays the foundation of an action to recover damages by way of compensation for the injury that he has so sustained. A famous instance of the application of this principle occurred in the case of Ferguson v. Kinnoul, 9 Cl. & Fin. 251. That was an action against the members of a Scotch presbytery for refusing to admit to trial a presentee of a living, and the presentee claimed damages. It was held that the action would lie against the individual members of the presbytery. And here we see the difference between acts merely ministerial and acts which are judicial. It is remarked at p. 281, "If they had admitted that gentleman to his trial, and after taking him upon trial had come to the conclusion that he was not properly qualified, in that case it would have been a judicial decision, and might not have afforded a ground for supporting an action, although the party should have sustained damage in consequence of it." So in the case of justices of the peace. If they do something in the exeercise of their office which causes injury, they are protected. That is a judicial act, and may be an error of judg. ment. But in a case of non-feasance where for example they do not take an examination, an action lies: (Henley v. Mayor of Lyme Regis, 3 B. & Ad. 77.) A case illustrating the distinction between mere errors of judgment and wilful tort is that of Harman v. Toppenden, 1 East, 555, which decided that an action does not lie against individuals for acts erroneously done by them in a corporate capacity from which detriment happens to the plaintiff—at least not | feasance. There it was Underlying these questions is one of some moment, namely, what constitutes a Judge. Appointments by statute are of course plain. In other cases, the question must be one of fact. In the case we have cited above, Doswell v. Impey, the commissioners of bankrupts were by statute given a judicial discretion, and so long as they did not exercise that discretion maliciously they were protected. What amounts to a judicial discretion in other cases must be for the court. The subject which we have thus cursorily discussed is becoming daily more important by reason of the increase of corporate bodies, and some day it will have to be decided, more definitely than it has hitherto been, to what extent their fair exercise of their judicial discretion extends, and at what limit it becomes necessary to prove malice in an action on the case against the individual members for a mis NEW TRIALS AND APPEALS. A THE Social Science Congress, amongst its other multifarious proceedings, turned its attention to "certain defects in County Courts." paper on this subject was read by Mr. SHERWOOD SMITH, who took as his text a case which occurred last year, and which we noticed at the time. In that case judgment was given for the plaintiff, on the ground that he was considered more worthy of credit than the defendant. Immediately after the trial, evidence was tendered to the defendant proving the plaintiff to have sworn falsely, upon which the defendant gave notice of application for a new trial, but found that through taking that course, instead of appealing in the first instance, he had lost the right of appeal, and that although the grievance had increased, all remedy was at an end. This state of things, Mr. SMITH considered, called for reform, and that a suitor if aggrieved with the judgment of any court, ought to have a right of appeal to a higher one, under any circumstances that might arise. This is a point of some importance. If a suitor resorts to his remedy of a new trial, he waives his appeal as a matter of course, showing a preference for two trials in the inferior court to an appeal to the Superior Court. To allow a party two trials, and an appeal on the first, would be an abuse of legal process. As matters at present stand, a notice of appeal is good if given within ten days of the day of trial; and where a new trial was moved for, it was held in Foster v. Green (30 L. J. 263, Ex; 6 L. T. Rep. N. S. 390; 6 H. & N. 793), that the ten days ran from the day of the motion, and not from the day of the trial. The substantial question is whether the time for appealing should be extended. But in the case noticed by Mr. SMITH, an appeal would not have lain in any case. The new trial was the only remedy, the question being one of fact. Unless, indeed, there had evidence were again improperly rejected on the been improper rejection of evidence, but if new trial, an appeal would lie from the new trial. As we said before it would be absurd to allow a new trial and an appeal from the first trial, and it would seem inexpedient to extend the time for appealing from the first trial to a period beyond the new trial. This might cause much confussion. We conceive, therefore, that what Mr. SMITH complains of is not so palpably a defect as he appears to imagine. The following is the paper of Mr. SMITH, to which we refer above : One of the objects of this association being the improvement of the law and its administration, the writer avails himself of the opportunity it affords of making known a very serious defect in the law of County Courts. In Oct. 1868 an action was brought in the County Court to recover 401. damages alleged to have been sustained by the plaintiff through the defendant falsely representing the report of a referee as to a tenant's responsibility. On the trial the plaintiff denied that the language the defendant alleged he had quoted as that of the referee, was the language employed, but words totally different. He also denied that he had levied a distress on his tenant's goods for rent not due, or had authorised a distress. The referee, who, up to the time of the trial, had denied ever seeing the defendant in his life, in his evidence for the plaintiff admitted that the defendant had called upon him and that he had used with reference to the tenant, the identical words the plaintiff had denied that the defendant had repeated to him. The defendant's version was in part corroborated by his clerk, who had heard some of the words the plaintiff had denied, and on this point the case hinged. The judge gave a verdict for the plaintiff, on the ground that he believed him in the trial evidence was tendered to the defendant, preference to the defendant. Immediately after proving the plaintiff to have sworn falsely with reference to the distraint, a matter about which he could have had no doubt; and the defendant, considering that this should give the balance of testimony in his favour, acting on the advice of his solicitor, at once gave notice of an application for a new trial. At the hearing thereof the plaintiff's counsel, not denying that the plaintiff had sworn falsely, maintained that it was a point not material to the issue, and the judge, agreeing then determined to appeal, but found that, through therewith, refused a new trial. The defendant moving for a new trial instead of appealing in the first instance, he had now lost the right of appeal, and, although the grievance had increased, all remedy was at an end. The questions raised by this case are very important. It shows an absolute power to be vested in a single judge which is |