V.C. W.] THE DUKE OF BEAUFORT v. CRAWSHAY. culties. He also discovered that the Mr. Morgan referred to as a partner was only a clerk of the deft.'s at a small weekly salary. The following were the exceptions filed: First exception. For that the plt. in the fifth paragraph of the said bill states that during the autumn of 1857 the plt. discovered that the representations made to him by the deft. as to the business therein mentioned were not correct. Second exception. For that the plt. in the fifth paragraph of the said bill states that during the autumn of 1857 the plt. discovered that the deft., instead of making the large profits alleged, had only shortly before commenced business with a capital of 251. Third exception. For that the plt. in the fifth paragraph of the said bill states that during the autumn of 1857 the plt. discovered that the deft., instead of making the large profits alleged, was at the commencement of the partnership therein mentioned without means and in pecuniary difficulties. Fourth exception. For that the plt. in the fifth paragraph of the said bill states that during the autumn of 1857 the plt. also discovered that the Mr. Morgan referred to as a partner was only a clerk of the deft.'s at a small weekly salary. Rolt, Q. C. and J. Lorence Bird, in support of the exceptions, contended that the statements in the fifth paragraph amounted to scandal by imputing fraud to the deft. Whatever was a slur upon another's character was scandal. In this case the statement was not relevant to any issue raised by the plt.'s bill. nor had it any bearing on the question to be decided at the hearing: Ex parte Simpson, 15 Ves. 476. Willcock, Q. C. and J. N. Higgins in support of the bill.-The statement did not amount to an allegation of fraud, it only alleged incorrectness. There was no stain on the deft.'s moral character. Besides the deft. had answered, and it was too late to take exceptions. For a definition of scandal they referred to and cited 1 Dan. Prac. by Field, Dunn, and Biddle, p. 324, 325; Rickards v. The Attorney-General, 12 Cl. & Fin. 38; Anon, 6 Ves. 656. The VICE-CHANCELLOR said, upon the whole, he must consider that the allegations amounted to scandal. It was very faint, but it was a charge of fraudulent conduct and not material to the object of the suit, which was purely for an account. Nor had it any bearing upon the probable costs of the suit. It could not have been the object of the plt. to get rid of an obnoxious partnership, for it had ceased so long ago as Dec. 1857. He should therefore direct that the fifth paragraph of the bill should be expunged as scandalous. The plt. to pay the costs as between party and party. Co. Order accordingly. Solicitors for the deft., Clarke, Woodcock, and Common Law Courts. [C. P. COURT OF COMMON PLEAS. Reported by W. MAYD and W. GRAHAM, Esqrs., Barristers-at-Law. June 7 and 8. THE DUKE OF BEAUFORT v. CRAWSHAY. Deposition of witness unable to attend the trial-Permanent sickness-Power of court to review judge's decision-Affidavit-Admissibility of-1 Will. 4, c. 22, s. 10. By the 1 Will. 4, c. 22, s. 10, it is enacted that no deposition taken by virtue of that statute shall be read in evidence, "unless it shall appear to the satisfaction of the judge that the deponent is unable from permanent sickness or other permanent infirmity to attend the trial." On a deposition being tendered, a witness, who was not a medical man, was called, and stated that he saw the deponent the day before the commission-day, and that he was so ill as to be unable to move. Upon this the Judge decided to admit the deposition, and also received an affidavit made by the medical man attending the deponent: Held, first, that the court had power to review the decision of the judge at Nisi Prius, but that that jurisdiction should not be exercised unless it was clear that injustice would be done if the court did not interfere : Secondly, that "permanent" sickness does not mean sickness which is absolutely incurable, but that there must be such a degree of permanence as to make it morally sure that the witness will not be able to attend at the assizes at which the cause is tried. Semble, per Willes, J., that the judge was justified in receiving the affidavit of the medical man. This was an action to try a right of fishery in the river Usk. At the trial before Blackburn, J., at the last assizes for the county of Brecon, it appeared that a Mr. Hawkins, an important witness for the deft., being ill, had been examined on the 20th Feb. under a commission under the provisions of the 1 Will. 4, c. 22. By sect. 10 of that Act it is enacted that, No examination or deposition to be taken by virtue of this Act shall be received in evidence at any trial without the consent of the party against whom the same may be offered, unless it shall appear to the satisfaction of the judge that the examinant or deponent is beyond the jurisdiction of the court, or dead, or unable from permanent sickness or other permanent infirmity to attend the trial; in all or any of which cases the examinations or depositions, &c., shall be received and read in evidence. 24th March, the managing clerk of the attorney for At the trial, which took place at Brecon on the the deft was called, and stated that in company with Dr. Jos. Buller he saw Mr. Hawkins on Monday, March 19, the day before the commission day. Mr. Hawkins was in bed, and so ill as to be unable to move; his face was drawn up in agony, and he said he was unable to move. In cross-examination the witness stated that he had never studied medicine, and had had no experience to enable him to judge of the state of a person who was ill. No medical man was called, but the counsel for the deft. tendered an affidavit of Dr. Buller, in which he stated that he regularly attended Mr. Hawkins, and had seen him on the 19th March; that he was unable, from permanent sickness, to attend the trial of this action; that the permanent sickness from which he was suffering was chronic gout, and that on the 19th March he was confined to his bed with an acute attack of gout in both feet and knees, and was unable to move. C. P.] [C. P. THE DUKE OF BEAUFORT v. CRAWSHAY. witness would not have been able to attend; and in any case the medical man clearly ought to have been called: Upon this Blackburn, J. stated that he was satisfied, and asked the counsel for the plts. what his objections were. He contended that the evidence of the attorney's clerk was not sufficient to prove permanent sickness, and that the affidavit was not evidence. Blackburn, J. stated that it would have been more satisfactory if the medical man had been called, but he thought that the evidence justified him in admitting the deposition, and that the counsel for the plt. would have a perfect right to complain to the court if he thought that ruling was wrong. A verdict having been found for the deft., Grove, Q. C. subsequently obtained a rule for a new trial on the ground that the evidence of Samuel Hawkins ought not to have been admitted in evidence on the trial of the cause. Manisty, Q. C., Dowdeswell, and H. Allen showed cause. The judge at the trial is the sole judge of whether he is satisfied that a witness cannot attend. He may have seen the witness injured himself, and surely he would be justified in acting on that. The court will not review the decision of a judge at Nisi Prius as to whether there was sufficient evidence to satisfy him, and if they would it is submitted that the affidavit was admissible: Taylor on Evidence, 4th edit. 474; Reg. v. Winsor, 1 L. Rep. 390, Q. B.; 14 L. T. Rep. This is a preliminary question and not one which is to be left to the jury, and very loose evidence is often admitted to satisfy a judge, and he can judge from the circumstances whether it is bona fide or tendered for the purpose of deceiving. A new trial cannot be granted on the ground that a judge has decided against evidence. Stephenson's case, 1 L. & C. 165, rested on the criminal statute 11 & 12 Vict. c. 42, s. 17, where the words" to the satisfaction of the judge" are not used, and therefore it is stronger in my favour. There it was held that the question was for the judge at the trial, and that the court ought not to interfere with his decision. affidavit was clearly sufficient to satisfy the judge, and it is stated in Taylor on Evidence, at p. 474, that Pollock, C. B. received a similar affidavit at the Guildford Assizes in 1848. The Grove, Q. C., H. Giffard, Q. C., and G. B. Hughes in support of the rule.-This is not like a criminal case, as in criminal cases the judge must deliver the gaol; but here the trial might have been put off, and if the judge improperly admitted the depositions the court ought to review his decision. All that the statute means is, that the question is not to be left to the jury. All that a judge does at the trial is subject to review by the court above, unless there is an express statutable provision to the contrary: Taylor on Evidence, 4th ed. 34-36; Doe v. Bamford, 11 A. & E. 786; Boyle v. Wiseman, 11 Ex. 360; Bartlett v. Smith, 11 M. & W. 483; Wright v. Doe, 7 A. & E. 313, 356; Cleave v. Jones, 7 Ex. 421; Harrison v. Blades, 3 Camp. 457. But for the C. L. P. A. 1854, s. 31, the court would review a judge's decision as to stamps: (Sharples v. Rickard, 26 L. J. 302, Ex.) Stephenson's case is not in point, as the Court for the Consideration of Crown Cases Reserved can only consider matters of law Here there was no proof that the illness was peranent, or that if the trial had been postponed the Reg. v. Riley, 3 C. & P. 116. ERLE, C. J.-I am of opinion that this rule should be discharged. It was a motion for a new trial on the ground of the improper reception of the evidence of a man of the name of Hawkins, which had been given on depositions, and the learned judge at the trial admitted the depositions upon oral evidence, from which it appeared to his satisfaction that Hawkins was unable from permanent sickness or permanent infirmity to attend the trial. The messenger who was sent down to see him stated the symptoms on which the learned judge acted, and it is said that the judge acted on evidence that ought not to have satisfied him, and that we therefore ought to grant a new trial. The first point to be determined is, whether we have jurisdiction to review the decision which the learned judge arrived at. The words of the statute are, "if it shall appear to the satisfaction of the judge presiding at the trial that the examinant is unable from permanent sickness to attend the trial. the judge may admit the depositions." It was said with a good deal of force and clearness, that the statute had entrusted the decision of that point entirely to the judge, made him supreme in the matter, and given no other tribunal power to consider what the judge had done. But as to that part of the argument, Mr. Grove and those who are with him have satisfied me that that construction of the statute cannot be main tained. The judge at Nisi Prius sits as a member of the court, and his opinion is subject universally, as far as I know, to review by the court in banco from which the record has come. At the close of the argument I did not feel any doubt that the words of the Act are not sufficient to prevent the words of the statute were that the judge should finally court from having the ordinary jurisdiction. If the decide, and that the court in banco should have no power over his decision, of course the question would be different; but those words appear to me to say that the judge at the trial must satisfy his own to be reviewed by the court from which the record mind, and that the conclusion he comes to is subject issues. Then, having jurisdiction in that general way, we are called on to exercise that jurisdiction by holding that the learned judge made a mistake, that part of the case the argument has failed. The and that a new trial ought to follow. I think upon strong presumption is, that the judge before whom the matter must come for decision has the best his own eyes to see the witnesses, and the evidence means of deciding, because he has the evidence of of his own ears to hear what they say; whereas, we have only the account of what passed before him. Moreover, I am of opinion that we ought not to exercise the jurisdiction which we have as a last resource, unless we are clear that injustice will be done if we do not interfere. If we could see that the judge had been misled by a fraudulent contrivance, as I have known in the course of my experience, when a witness was wanted to be kept from cross-examination, and the parties produced evidence to show that he was bedridden, when upon further inquiry it was ascertained that the man had been up, and about his house and premises every day. If there had been anything like a resort to falsehood on the part of those who had had the deposition read, there would have been an end of the matter, and we ought to interfere, and we should interfere. But I do not see the least ground for thinking that anything of the sort has taken place here. There was nothing like contrivance they left the matter to be inquired into with a great deal of brevity C. P.] THE DUKE OF BEAUFORT v. CRAWSHAY. [C. P. and simplicity, and I do not think there is the least from the opinion of that learned judge, who unground for saying there was any injustice, or fraud, questionably must have very considerable knowor falsehood. Neither do I find any reason for ledge of what was the practice in respect of coming to the conclusion that injustice has been admitting such depositions. And any doubt I done as to a mistake of the facts. I cannot see for might feel in overruling the decision of the Lord certain that Mr. Hawkins could have attended the Chief Baron would be fortified by what took place trial, and if he could not have attended the trial in the case of Reg. v. Ryle, 9 M. & W. 227, which there is very great progress made towards the was a commission to inquire as to the existence of decision that he is within the section. He would be certain Crown debts for the purpose of putting the clearly within the section if the words had been fact on the record; and on the trial before a jury "unable to attend the trial." The words are "un- an affidavit of debt was the only evidence that was able from permanent sickness or disability;' and given. The court was applied to to quash the comthe great stress of the argument has been, was he mission on the ground of the admission of illegal unable from permanent sickness or permanent dis- evidence. There it was said by Lord Wensleydale ability to attend? Then the question is, what is the that the rule as to not admitting an affidavit as meaning of permanent sickness? I have known a evidence had grown up as a matter of practice, not large class of human beings who are incurable; as a matter of common law, and that decision was those who are taken into hospitals dedicated to such held to be valid and the evidence receivable. I refer as have been ascertained to be absolutely incurable. to this for the purpose of showing that it is quite a I do not think it meant that; neither do I think it mistake to suppose, as has been sometimes sugmeant anything approaching in degree to that, gested, that at a trial at Nisi Prius you necessarily looking at the whole of the context. You shall not have the witness to cross-examine. I am far from have the examination read for a casual, passing, saying that the Lord Chief Baron ruled wrongly transient failure of health: there must be a good when he said that the judge must satisfy himself by deal more than that. That is all that the statute any means which ought to satisfy his conscience; an intended to insist on, because the examination is to affidavit, though it might lead to a mistake in one be read if it appear to the satisfaction of the judge instance, might prevent in many instances a useless that the examinant is beyond the jurisdiction of and ruinous expense. What weighed most on my the court. If the examinant was just across mind was the suggestion of Mr. Grove that the Tweed, or had taken his passage to Dublin evidence of this kind might be easily fabricated— or to Calais, he would be beyond the jurisdiction that people without consideration might sign of the court, and it is clear that the judge what was put down on paper for them to would be bound to receive the depositions, sign, when they would not like to state it in open though, for aught that appears, an hour after court if they were subject to cross-examination. It the trial the man might be in England walking is very true that evidence of that kind is more open about the town of Brecon. I agree with Mr. Grove to fabrication than evidence which is given vivâ that the great thing is to prevent a witness from voce. On the other hand, evidence of that kind is being exempted from cross-examination; but they for the same reason open also to easy exposure if it have not made such a stringent provision as, accord-be false, and it is quite open to a person who coming to Mr. Grove's argument, would be required. plains of false suggestions made for the purpose of The words of the statute are, "if he is unable from inducing the judge to admit evidence by depositions permanent sickness or permanent disability." That to make inquiry and to inform the court of the must mean such a degree of permanence as must falsehood, upon doing which he would obtain the make it morally sure that there is no chance of redress of a new trial, and if it should appear to his being able to attend at those assizes. I would the court that the evidence tendered has been not attempt the impossible task of defining the improperly received, he would also obtain an indemdegree where there is nothing to compare it with, nification for all the expenses to which he had been but it ought to be a disease of a serious or grave unjustly put. The next question is, with regard to extent. So far as I can ascertain, there was good the meaning of "permanent" illness in the statute. evidence here of disease to a grave extent. To say I entirely agree with my Lord and do not propose nothing of his being beyond threescore years and to add a word to what he has said on that. I think ten, he had carried chronic gout about with him for he has laid his finger on the true point in the use of some time, and at that particular season an acute the word "incurable." If it were intended that attack of gout had supervened. Then the witness permanent" should have the sense of "incurable," says, "I swear that I believe he was unable to the word incurable would have been introduced into attend." Is that an exaggerated account of the the statute. It must mean serious illness; to what state of this witness? It was open to inquiry by extent it is not necessary, if it were possible, to the other side, and they did send a man down who define. Then comes the question, in answering had seen him some short time before; and we are now which, we may dispose of the rule, what is the called on to say that the judge who presided made meaning of "proved to the satisfaction of the a mistake, and that justice requires there should be judge." Apart from the considerations which I a new trial, because these depositions were impro- have already discussed as to the media of proof perly put in. For anything I can see Mr. Haw- that the judge ought to have before him, I kins may be afflicted with chronic gout and other apprehend that the slightest effect that can be disease at this moment; at all events, I cannot say given to the words "proved to the satisfacthat the learned judge was wrong, and unless I tion of the judge" is this, that if there is evidence could clearly see that he was, I should not feel upon which the person acting might honestly come myself authorised to overrule the conclusion at to the conclusion that the evidence was receivable, which he arrived. the court ought not to interfere simply because it is not proved to their satisfaction that the circumstances existed under which the evidence is by the statute to be received. That would be to contradict the statute; to substitute the satisfaction of the court for the satisfaction of the Judge at the trial. I think this can be well illustrated, and that the intention of the Legislature is clearly established by considering what would be the effect if the judge were not satisfied at the trial. Suppose that a WILLES, J.-I am of the same opinion. Although my mind has fluctuated on the subject, as at present advised I am far from agreeing with the learned editor of Taylor on Evidence, that the ruling of the Lord Chief Baron in the case at Guildford as to the admissibility of evidence was an erroneous conclusion or ruling; and I should require very great consideration before I could bring myself to differ 66 C. P.] THE DUKE OF BEAUFORT v. CRAWSHAY. number of witnesses who were interested, or who from what had passed in the course of their crossexamination in the previous part of the trial before the judge were witnesses whose evidence he did not believe and thought ought not to be acted upon by the jury, and suppose for that or for any of the lesser grounds upon which a judge in his discretion may think proper not to act on the evidence (though it is admissible) because he does not think it sufficient, the judge were to reject the depositions, would it be competent to the court to say, though they had not seen the witnesses, were not present at the time, and had not the same means of knowing what weight should be given to the evidence, that they were not satisfied, and therefore there ought to be a new trial? It is impossible that that notion can be sustained. Like any other fiction of law that must not be pressed too far. Therefore the court are driven to this: that if we were dealing simply with the language of the statute we should have no means of interfering. But the court is not therefore powerless to prevent injustice, because there is a general jurisdiction by which we may prevent an abuse of our process of any kind whatever, and in this jurisdiction is included the power of setting aside a verdict in cases in which it appears to the court that justice has not been done at the trial. The true result to my mind therefore appears to be, that unless this was the proper subject matter of a bill of exceptions the jurisdiction of the court in granting a new trial, even if we were dissatisfied with what satisfied the judge, ought not to be exercised unless it is made out that injustice has been done. Now this may sound vague, but in practice it has been found precise enough, and it has abundance of authority and illustration in its favour. First of all, there is the case which has been referred to of a judge at the trial ruling who was the proper party to begin. It may, no doubt, in some cases produce very serious inconvenience, resulting in what may properly be called injustice in dealing with who has the right to begin, and it may be said that the judge has decided contrary to right. It has been settled that the court will not in such a case interfere by granting a new trial, unless it appear that substantial injustice has resulted from a mistake of the judge. That was laid down in Brandford v. Freeman, 5 Ex. 734; and in Black v. Jones, 6 Ex. 213; and in the latter case the learned judge, in addressing the jury, cited a case which he meant to be an illustration of the doctrine in question. That was a motion for a new trial, and the Court of Ex., consisting of the present Lord Chief Baron (Pollock), and Parke and Alderson, BB., stated that no bill of exceptions would lie to the ruling of a judge upon a collateral point; it must be an exception to his ruling upon some point directly connected with the issue which the jury had to try; but the Court went on to observe that if at any time the court should feel that great injustice had been done by an erroneous statement upon a point, though purely collateral, it would, in the exercise of its sound discretion, give relief. I need not pursue the authorities further, because I could not do so without getting upon ground which might be questionable. I have stated enough to show that the court does nothing unprecedented, and that, with respect to a ruling of this description, which is to be to the satisfaction of the judge, there is abundant authority for saying that the court ought not to interfere unless injustice has been done. If that is the rule, who is to prove that injustice has been done? Of course, the party who seeks to set the discretionary jurisdiction of the court in motion. Then, what is the injustice that should be proved to have een done, and is to be proved here? I as at first struck by Mr. Grove's manner of [C. P. putting it that injustice is necessarily done by putting in the evidence of a witness who might peradventure be produced in court for cross-examination. Upon consideration with reference to this particular proceeding, I think that argument must be treated as a fallacy, because the Legislature has overruled that objection by allowing the witness, under circumstances to be made out to the satisfaction of the judge, to be examined without being exposed to cross-examination. Therefore it really is begging the question to say that that is sufficient injustice to induce the court to interfere. The injustice, if it existed in point of fact, might have been made out by inquiries since the trial as to the real state and condition of the old man, whose depositions were put it, to prove that the judge acted on an untrue suggestion; the untruth of the suggestion on which the judge acted is the only injustice that I can make out at present which should induce the court to interfere. If there be any which the facts of the case have not suggested, I guard myself against saying that the court would not deal with that. But no such case has been presented to the court. It is the bare case of a suggestion, that the judge upon what was before him came to an erroneous conclusion; there is not any attempt to show that that conclusion was an unjust one, or that the same conclusion would not have been arrived at upon more full information if a new trial were to take place. Upon this latter ground I own I think that the court are bound not to interfere, and that the rule ought to be discharged. BYLES, J.-I am of the same opinion. I certainly did entertain some doubt as to the question whether or not the decision of the judge was not final, until I heard the argument of Mr. Grove; but he has abundantly satisfied me that the court has power to supervise what has been done, on the general principle that there is in this court, as well as in every other Superior Court, a jurisdiction to supervise all proceedings before the judges in actions in this court, as well as the proceedings of inferior officers, judicial and ministerial, sheriffs, masters, and others, as well as judges. The observation of the learned counsel for the plt. was very strong, that if the statute had meant to exclude that, they might very easily have added the words "whose decision shall be final." I conceive that what has been done is capable of review by this court; but still the onus probandi is now shifted; it lies upon those who impeach the decision of the judge intrusted by the statute with the decision of this question, to satisfy us that the judge was wrong, and possibly to go further and show that some injustice would be done. At all events, one or the other must be done. We ought either to see that he was wrong in point of law-as, for example, that he had no materials, or that there was fraud, or that some injustice will be done. I do not think one of those three matters is made out on the present occasion. That being so, the decision of the judge must stand. I cannot help observing upon this, though not at all dissenting from what my brother Willes said on the subject of the affidavit, that the matter is in this position-that the judge decided to admit the examination of the witness before the affidavit was read. That being so, he decided upon the testimony of the person who was examined and cross-examined on oath, and whatever interpretation is put upon the word "permanent," there was some evidence from the testimony of this person, looking at the age of the individual as well as at the nature of his infirmity, that he was not able to be present. I agree with what has been said by my Lord and my brother Willes, as to the meaning of the word "permanent," that it is not necessary [Ex. to define it, and that it would be exceedingly diffi- | words may be applied to different circumstances in cult to define it; possibly the word "permanent different ways, but they certainly appear to me to may receive different meanings under different mean some sickness of an enduring character circumstances. Suppose, for instance, that a wit- which may last beyond the then impending trial. ness was examined at the coming sittings at It is unnecessary to decide whether the judge could Nisi Prius in a special jury cause, and there have received an affidavit, because I understand from are no more sittings at Nisi Prius until next the report that he had decided to admit the December, if it be shown that he will not be depositions before the affidavit was tendered alive, or that he will be unable to attend next to him, and he received the affidavit and added it to December, is not his examination to be read? his note, that in case a motion was made here and Suppose the same cause to be tried before the we undertook to review his decision, he might have sheriff of London who sits every fortnight, does the benefit of the affidavit if we thought it was "permanent" there mean the same thing? It is admissible. I think it is unnecessary in this case to not necessary to decide that question. The word consider the affidavit. I think the rule should be "permanent may possibly receive different con- discharged independently of the question whether structions, according to the circumstances of the the affidavit was admissible or not. I am also very particular case. I have only one other observation. far from saying that the Lord Chief Baron was not Speaking for myself, it must not be considered that quite right in the decision he is reported to have I am putting any construction whatever on the given in the case referred to. This is a matter which statute of the 11 & 12 Vict. c. 42, which is in very does not concern the jury; it is a matter where different language, relative to criminal proceedings, evidence is wanting to satisfy the mind of the where the words are: "If it shall be proved by the court if it were a trial at bar, or the mind of the oath or affirmation of a credible witness that a presiding judge in a trial at Nisi Prius. I am by no person is so ill," and so on. Nothing, so far as I means satisfied that an affidavit is not perfectly am concerned, in the opinion I have given on this legitimate evidence for that purpose. Upon the case, has any application whatever to the other whole I agree with the rest of the court that the rule statute. should be discharged. Rule discharged. WILLES, J.-I entirely agree with my brother Byles in that observation, and would wish to guard myself in the same way. M. SMITH, J.-I am of the same opinion. I agree in the observations with reference to the general jurisdiction of the court as to the trial of issues out of its own court, and as to the conduct of the presiding judge, but I think the court ought not to review his decision under the statute in the sense of substituting their discretion for his, and allowing their decision to prevail. The statute enacts that no deposition shall be read unless it appear to the satisfaction of the judge that the deponent is unable to attend. It is the mind of the judge that is to be satisfied; and I think the court ought not on light grounds to assume to themselves the power of putting their mind in the place of his, and saying they are not satisfied upon that evidence which satisfied him. If it was proved that there was perversity, or mistake, or fraud on the part of those who put forward the depositions, then the power of the court exists to look into the conduct of the trial and say that it is not to their minds satisfactory. In this case I can find nothing which the judge has done which he was not perfectly entitled to do. He had oral evidence upon the question whether or not the witness was affected with permanent sickness so as to be unable to attend the trial; and the evidence which was given before him satisfied his mind that the witness was suffering from permanent sickness and unable to attend the trial. Therefore his mind was satisfied. It was not a case where he acted on his own judgment alone; he acted upon the testimony of a witness. The utmost that can be said is, that two views may be taken of the evidence of the witness; his testimony might not have satisfied some minds that the deponent was suffering from permanent sickness, while other minds it might have satisfied. Certainly the judge who heard the witness is much better able to decide on the effect of the testimony than any one can be who merely reads a report of the evidence, which, however faithful it may be, does not often give full effect to the bearing of the evidence. Then, upon the construction of the statute the words "permanent sickness" certainly appear to me to imply something more than sickness which would prevent his attending that particular trial. I agree with my brother Byles that those COURT OF EXCHEQUER. Saturday, June 2. BAINES AND OTHERS v. EWING. Assumpsit-Marine insurance policy-UnderwritersBroker signing policy for his principal-Broker exceeding his authority. Custom at Liverpool — Principal and agent-Private instructions-Indivisibility of contract. Deft., in writing, authorised his brokers at Liverpool to underwrite policies of marine insurance in his name and on his behalf, "not exceeding 1007. on any one vessel." The custom at Liverpool is for the broker to sign his principal's name to the policy, but it is well known there that in almost every case the broker's authority is limited to a certain sum, though the amount of such limit is only known to the broker and his principal. The brokers, without deft.'s knowledge, underwrote a policy in his name for 150l. for the plts., who were ignorant of the limit imposed: and in an action by the latter thereon it was Held, that the deft. was not liable for all or any part of the 1501., as the brokers had exceeded their authority, and the contract was one entire and indivisible contract. This was an action brought on a policy of marine insurance to recover from deft., as an underwriter, the sum of 150l, the amount for which the plts. alleged the deft. had underwritten the said policy. The declaration was in the usual form, and the deft. pleaded that he did not subscribe the said policy, and did not become an insurer as alleged, on which plea issue was joined. At the trial before Lush, J. and a special jury, at the last spring assizes at Liverpool, a verdict was taken for plts. by consent for 1501., with leave to deft. to move to enter a verdict for him, or to reduce the damages. No witnesses were called by either party, but the facts as stated verbally at the trial by the respective counsel, and as they appear on the shorthand writer's notes, were admitted and agreed to by both sides, and were materially as follows:-The plts. are shipowners in Liverpool, trading under the firm of James Baines and Co., and deft. is a gentleman of property living in London. In July 1861 deft. authorised Messrs. North |