clerk of appeals, Queen's Bench, belong to, and form part of, the revenue of the Crown. (a)

Sale of Offices.-It would seem that an indictment or information lies at common law for the sale of a public office, on the ground that public policy requires that there should be no money consideration for the appointment to any office in which the public are interested, and that the public will be better served by having persons best qualified to fill offices appointed to them; and if money may be given to those who appoint, or through whom an office may be obtained, it would be a temptation to appoint improper persons. (b)

The office of sheriff is an office concerning the administration or execution of public justice, and the sale of it is illegal. The defendant agreed with R., then sheriff of the county of Norfolk, to give him £500, and an annuity of £300 a year, if he would resign. R. accordingly placed his resignation in defendant's hands. The £500 was paid, and certain lands conveyed to secure the annuity; and it was further agreed that in the event of the resignation being returned, and R continuing to hold the office, the money should be repaid, and the land reconveyed. But R. did not undertake in any way to assist in procuring the appointment for the defendant. The latter having been appointed by the Government in ignorance of the agreement, an information was filed against him :-Held that this was an illegal transaction, as being, in fact, a purchase of the office, within the 5 & 6 Ed. 6, c. 16, and that an information might be sustained under this Act as for a misdemeanor; but, at all events, if not sustainable under this Act, the British Act 49 Geo. 3, c. 126, clearly applied in this Province, and made it a

(a) Reg. v. Holt, 13 L. C. R. 306.

(b) Reg. v. Mercer, 17 U. C. Q. B. 625, per M‘Lean, J.; and see Russ. Cr. 214; Rex v. Vaughan, 4 Burr., 2494; Rex v. Pollman, 2 Camp. 229.

misdemeanor. (a) The ignorance of the Government as to the illegal agreement was immaterial. (b)

In another case, a sheriff agreed with one O. to give the latter all the fees of his office, except for certain services specified, in consideration of which O. was to pay him £300 a year quarterly in advance, not out of the fees, but absolutely and without reference to their amount:— Held that this was a sale of the deputation of the office, and was clearly prohibited by the 5 & 6 Ed. 6, c. 16, and 49 Geo. 3, c. 126, and that the effect of it was to forfeit the office upon conviction under a proceeding by scire facias. (c) But if the defendant in this case had agreed to pay his deputy a certain sum of money annually for acting as his deputy, either in regard to all his ministerial duties, or a part of them, or had agreed to give him a certain portion of the fees, or to take from him a certain portion of the fees, or a certain fixed sum annually out of the fees, he would not have brought himself within the Statute, or done anything illegal. (d)

The 49 Geo. 3, c. 126, expressly extends the 5 & 6 Ed. 6, c. 16, to the Colonies; at least such portions of it as are in their nature applicable. (e) The former Statute expressly extends the 5 & 6 Ed. 6, c. 16, to the office of Sheriff: and any act done in contravention of the latter Statute is indictable, though not expressly made so. (ƒ)

An agreement whereby, after reciting that A. had carried on the business of a law stationer at G., and had also been sub-distributor of stamps, collector of assessed taxes, etc., there, and that he had agreed with B. for the sale of the said business, and of all his goodwill and interest

(a) Reg. v. Mercer, 17 U. C. Q. B. 602.

(b) Ib.

(e) Reg. v. Moodie, 20 U. C. Q. B. 389.

(d) Tb. 402, per Robinson, C. ; see also Foott v. Bullock, 4 U. C. Q. B. 480. () Reg. v. Mercer, 17 U. C. Q. B. 602.

(f) Ib.

therein, to him, for the sum of £300. A., in consideration of the said sum of £300, agreed to sell, and B. agreed to purchase, the said business of a law stationer at G.; and whereby it was further agreed that A. should not, at any time, after the first of March then next, carry on the business of a law stationer at G., or within ten miles thereof, or collect any of the assessed taxes, but would use his utmost endeavours to introduce B. to the said business and offices, is illegal and void, as being a contract for the sale of an office within the 5 & 6 Ed. 6, c. 16, and also within the 49 Geo 3, c. 126, which makes the offences prohibited by the former Statute misdemeanors.(a)

An arrangement by a clerk of the Crown to resign his office in favor of his son, on condition of sharing the revenues and emoluments of the office, is illegal and void. (b)

The Quarter Sessions is a competent tribunal to hear and determine a charge, under 1 W. & M., c. 21, s. 6, against a clerk of the peace for having "misdemeaned himself in the execution of his office." And when the Quarter Sessions have determined the charge, this Court cannot question the propriety of their decision. (c)

A Court of Justice has power to remove its officers, if unfit to be trusted with a professional status and character. If an advocate, for example, were found guilty of crime, there is no doubt the Court would remove him. (d) And a criminal information will lie against an officer who misconducts himself in the execution of his office. But such an information will never be granted against a Judge, unless the Court sees plainly that dishonest op

(a) Hopkins v. Prescott, 4 C. B. 578; and see Reg. v. Charretie, 13 Q. B. 447. (b) Delisle and Delisle, Rob. Dig. 89.

(c) Wildes v. Russell, L. R. 1, C. P. 722.

(d) Re Wallace, L. R. 1, P. C. App. 295, per Lord Westbury.

pressive, vindictive or corrupt motives, influenced the mind, and prompted the act complained against. (a)

On an application to file a criminal information against a Division Court Judge, for his conduct in imposing a fine, for contempt, upon a barrister employed to conduct a case before him :-Held that, even if his conduct were erroneously treated by the Judge as contemptuous, and, consequently, the adjudication of contempt would, on a full and deliberate examination, be found incorrect, this would afford no ground whatever for a criminal information. (b) It has been questioned whether a criminal information is proper in the case of a Judge of an inferior court of civil jurisdiction in relation to a matter over which he has exclusive jurisdiction. (c)

In Reg. v. Ford (d), an application was made for leave to file a qui tam information against a Judge of a Recorder's Court, upon the grounds that he had falsified the records of the Court, and maliciously condemned applicant as guilty of felony, upon the verdict of his peers, when, as alleged, no verdict whatever was found by the jury. The facts to support the application were, that the jury came into Court to render their verdict, and the foreman pronounced a verdict of guilty. The counsel of the accused then personally questioned some of the Jury as to the grounds of their verdict, when one of them said that he did not concur in the verdict. The attention of the Court was not drawn to this dissent, nor did it appear that they were aware of it. A verdict of guilty was recorded by the presiding Judge, and when formally read to the jury by the clerk, no objection was made. The affidavits filed in answer totally denied that

(a) Re Recorder and Judge D. C. Toronto, 23 U. C. Q. B. 376. (b) Ib.

(c) Ib.

(d) 3 U. C. C. P. 209.

the Judge was actuated by any improper motives, and alleged that he was throughout desirous of doing his duty in a fair and impartial manner, without bias or affection for or towards any person or persons whomsoever. The affidavits further shewed that the Judge was not aware of what passed between the counsel of the accused and the jury, nor had he any information that the jury had not agreed, or the least intimation that there was any dissentient among them. The information was refused.

An attachment has been granted against Commissioners of a Court of Requests, for trying a cause in which they were interested. (a) And where a Magistrate acts in his office with a partial, malicious, or corrupt motive, he is guilty of a misdemeanor, and may be proceeded against by indictment or criminal information in the Queen's Bench. (b)

It is a well-established maxim of law that no one shall be a judge in his own cause, and the general rule applicable to judicial proceedings is, that the judgment of an interested judge is voidable, and liable to be set aside by prohibition, error, or appeal, as the case may be. (c) In cases of necessity, however, where all the Judges having exclusive jurisdiction over the subject matter happen to be interested, the objection cannot prevail. And the objection does not apply to a party claiming the protection of an Act of Parliament, though he is a necessary party to its passing, as the Governor of a Colony, there being no analogy between judicial and legislative proceedings in this respect. (d).

A direct pecuniary interest in the matter in dispute disqualifies any person from acting as a Judge in such

(a) Rex v. M'Intyre Taylor, 22.

(b) Burns Jus., vol, iii. 144-5, 13 edn.

(c) Phillips v. Eyre, L. R. 6, Q. B. 22, per Willes, J. (d) Ib. 22, per Willes, J.