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111 H,L,c., 760 DIMES WAND JUNCTION CANAL (PROPRIETORS OF) 11852)

su i ti* The cause1 was heard before the: ViceCliancellolr, whol granted the. relief The: Lord Chancellor, cm appeal> affirmed the order sought by the1 company.

o f the Vice-Chancellor : Held, bhat the Lord Chanceilor was disqualified, o n tihe ground o f in tereat , from

sitting asl a judge in the camusem? and that his decree was therefore voidable.; and must coinmquent.ly be reveraed.

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Held allsol, thatl the Vice-Chancellor is, u1ide.r the 53 Gee, 3 , c+ 24, a judge sub- ordinate to, bu t nott dependent on, the Lord Chancellor, and that, consequentllv, d the disqualification of the Lord Chancellor did not affect. him; but that4 h i a decree mighti be ma.deb tlhe subject of appeal to this. House:.

Before a decree made by the Vice-Chance!llcw can ben appealed against, it i s rep quired to bei enrdled. Th,el enrolmenti is thel act of the: Lord Chancellor :

Held, that thel twt of enrolmentl, though performed by a Lord Chancellor dis- qualified by inter& from adjudicating in the cause, was not affected by his disqualification, but was v d i d f o r tmlm purpow of bringing up t.lzel appeal to this Ho.use,

The respoudenta were cre.at.ed a corporration by the Actl 33 Gee. 3, c+ lssrr,

Joseph Skidmore!, sirice decease.d, wasl then the: owner in fee of a copvllold farin called Frogmore, and a copyhold field called Eound Mead, hollden of thk manor of Rick-[7601-mansworth, in the county of Herta. Round Mead and three fields, partl of Frogmore Farm, were all in the line of the Grand Junction Canal, mid were so described in the plansl and books of relference. A small part o f each of these four- fielda was, in 1796, set outl a8 necessarv for making the canal and towiug-path: four small angles or CornelrS of trhem were t 1 L cut off from the rest of Skidmorek lands.

The. relspondentls, by agreement wi th Skidmore, the: cnoPpyhorlder, purchased these 1- -,ie.ces of land, containing together 3s. 3r. 17p., for g308 lOs+, mThich bhey paid him, and he then executed al deed, datled 13th March, 1797, in the form prescribed by the Act, for conveying these pieces to the: respondentas, and undertook to indemnify !.hem against all quibrents, herichs, customsj and selrvicee, tor be claimed by t.lze. lord in respecth of the landa 80 purchased. The respondents, w i t h the, concurreme of Edward Fotherley Whitfield, Estl., the then Lord o f the Manor of Riekmmsworth, took possessian of tihe strips and mlrnem o f land, made the canal and tolwirig-path along them, and sold 80 much. of them aIs was not wanted for the purposes of the canal to Mr. Boodle, in trustl f o r Earl Grosvenor, and Mr. Boodle was admitkid on tlh e. rolls as tenant*

From that time until the commencement of tlhe appellants proceedings, the. respondent8 and their assigns had had uninterrupted possession of these pieces of landm

Whitfield died in 1813, and in 1831 khe appellant became the. purchaser o i the manor*

In May, 1835, Joseph Skidmore died intestate asl to lands vested in him a8 a trustee f o r the respondents, leaving Thomas Eninlett, Skidmore3 then a minor., his

Proclamations were then made in the Manor Cour t for thel person entitlend to admittance to come in and be ad-C761]-mitted in respect ol the lands forming partl of the canal, but no one appeared in pursuance o f such proclamations. The: appel- lant, as Lord of the Manor of Rickmansworth, bhen issued a warrantl to the1 bailiff t.o seize the land, and brought an action of ejectrmentl against thel respo.ndentls ; but on the trial before the late Lord Chief Baron Abinger, at the Summer Assizes, in 1536, f o r elrtbfsrdshire, he was nonsuited, on the1 ground that the statutory amurance of the 13th March, 1797, operated to vest the freehold and inheritance in fee of the 3a. 3r. 17p. in the resnpoIndents. Liberty was, however, given to the appellant. t o move tlhe Court of Kings Bench to set! aside the nonwit, and enter a verdict! in his favour. He accordingly obtained al rule. n i s i f o r t h i s l purpose: in November, 1836, and, on urgunleilt, this rule was made abso1ut.e on the 7th. June., 1838, on the; h mrouild

Skidmore continued on the; rolla as tenant of the other landls. The l canal was completed and opened for public traffic early in 1797.

customary heir. I

+

that the: rwpondents had acquired an equit.able estate o n l y in the land as colpy%old. The appellant having obtained po.ssession under a wr i t olf pos8ewiorl, placed a

bar across thel canal, and thre!w a large quztntitv. of bricks into the canal to prevent the pasaage of harps; and on the 14th June, u1838, threatened wholly trio stop the

302

The bill. was amended in .t;l.re year 1840, and again in April, 1841 ; befalre which latter amendrwiantI, Buharn had given notics that) the appellant+ wag a mortgagee in

Act of Parliament, 1 Wm. 4, c1 65* This Act having rmeiveld EL different canstruetiun

I11 HeLeCm3 765 DIMES va. G.RAND JUNCTION CANAL (PROPRIETORS OF) [ 18523

December, 1838, s.hou1d be; made perpetluall; and any of the parties were to be at .F .r, 1 L maf

The appellantl then. presented a petition of rehearing, The cause wag set down fo r rehearing beifore the late Lord Chancellor Cottenham, who, on the; 27th Jnnuary,

U

1848, after1 argument, and time taken to consider, affirnwd the decree of the. Vice- Chancel1o.r of England (17 Law Jourm., Ch. 206)b

8

Shortly sfter&k order, the dwxee-was carried in belfore the Master, together with states of facts as to the cus tom of the1 manor, and the1 amount of the fine and feels to becornel due. on Skidniores admitltbance. The1 Master, on the 9t.h July, 1850, reported thatl the fine and femes payable on the admission of Skidmore would amoIuntl to $397 1 2 1 ~ 4d., and appointed a time and place: fori the payment thereof. The, appel- lant: failed to attend a t the time: and place appointed tol receive the fine and fees thus ordered t o bel paid.

a

The appellant, as he allegpd, :had then discovered that. thel Lord Chancellor, Lord L A H W

Coltltlenham, was, and fori more than ten years had been, a holder, partly in his. own riwhti, t3 and partly a trustee for other peraona, of ninetyntwo4 shares in the1 company ; and thereforel, on the: 24th February, 1849, gave the respondents notl ice: of a motion on his behalf to discharge the order1 of the: 27th January9 1848, and f o r an order - on Some minor points,, including liberty to amend his petition of rehelaring, nnd that. his. petition, when amended, might be: restmeld t-o the Lord Chancellors paper of rehearings and appeals, and that proper directions might bel given- bv U tlhe Court

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- o f Chancery by issuing a cornmimion, or otlhemvise- as niightl be necessary, for the hearing and determination of his petition belforel the; Master olf the! [7&] RolTs, assisted by two judges of her Maje.st;ysI Courts olf Common Lnaw atl 1Ve:strrninst.e.r.

This motion was, by desire, of the late! Lord Chancellor, he!ard before the. then Master of the, Rolls, who, after taking time. for consideration, on the 23rd Mav, 1849, statled that. his advice t.01 the Lord Chancellor was to refuse the1 motion witYh cuSt.s, and, at.: the same time J b wavel his reamms at large for this advice, (13 Beav. 63).

The appellantl tihen gavel notices to the. respondentis, and to bargemen navigatliw e9 the partL of the. canal through the copyhold land in quelstion, thati he. should treatl all persons engaged in the! navigation a.s tres.passers.; and on the 26th May, 1849, he commenced fifteen actions of tnrlespass+ These proceedings were met, o n tlhe partl of the re:spondentsl, by a notice: of motion, dated the1 28th May, 1549, to coninzit the appellant for a breach of the injunction issued cm the; 6th July, 1839, and made - - perpetual by the1 decree of the 16th November, 1846 ; and f o r ar fresh. injunction to issue, relstrsining the a.ppe;llant., his attorneye and agents, f rorn all proceedings in his fifteen actionsl of trespass, o r any 0.f them, and from commencing or1 p r m e c u t i n ~ z3 any other action o r actions or proceeldings atl law against the proprietors, or any other person o r persons, in relatbn to the1 copyhold premisean mentioned in thel decree. O n &e 3OOh May, 1849, the appellant gave1 a cromss-notIice of motion t.01 take. the1 co(mpanys bill off the file. These. motions were. made: (in accordance with the1 notices given to the respective: parties) before the1 late ViceXhancellorI of England on the 2nd June, 1849, when his Honour refused t he appellants motr im, and likewise. declined to commitl the appedlant, buti granted the in j unction soughtv by tihe companysl motion (17 S i n 38).

On the: 30th November9 1849, the: alppeTlant placed al [766] chain across the1 canal, This injunction :issued on the 5th June*, 1849.

and dug a deep trench across the1 towingpath, and impeded the navigation, and wrote1 twol lehters to the solicitors of the proprietors, explaining hia conduct a6 an exercise olf his. legal right8, and asserting his determination to, continue tol irnpe.de the navigation of whatl he: called hia own cana-1. On the 10th December, 1849, the late Vic&Chancellor of England, on tlhe motion of tihe company (of which notice! had been given on t.he1 3rd December), ordered the appellant to stand commi,tted to the cuatodv J of the keeper of ~ the Queens Prison till further1 order, for his contemptl in disobeying the wr i t of injunction of the 6th July, 1839.

In purauance of this. order, the usual warrant was? on the 11th Jnnuary, c. 1550, made o u t by the1 officer of the Court, and signed by the then Lord Chancellor, authoriz- ing t he tipstaff of thhe Court to arr.est the appellant, and convey him to the Queens Prison, there to remain till further order ; the tipstaff accordingly arrested the ap- pellant, and conveyeld him to, the! Q.ueens Primn.

The appellant, OP the; 28th January, 1850, gave notice o f a motion to discharge -9 304

305

IIZ H,L,c., 770 DIMES v+ GRAND JUNCTION CANAL (PROPRIETORS OF) [I 8 521 I

for refusing the remedy. Here, too? tlhe Lord Chancehr had heard the case before ~ -

the objection to his deciding i t w a ~ known ; and all that hi8 signature ton the enrol- ment can be said to amount to, is a formal declaration thatl what he signed was. a final decree and judgmentl.

[Lord Brougham.--You admit, o course, that he must sign t.he enrolment; but if he was an interested party, he nnight be interesteld in preventing the appeal, and he might refuse to enrol the! decree.]

That he might act wrongfully, even in the discharge of thatl formal duty, i s not a reason tu show that. he has any actual jurisdiction in the case. The int.ere:& of the

7 - Lord Chamelllor in the company wa8 very considerable, and in his j udpen t+ delivered in December, 1838, he stated t.hat i f he. gave a judgment for the plaintiff, the. coni- pany mustl be entirely at t.he mercy of the lord of the manor. Of the company placed in that aituation he was atr that, moment a large shareholder. The Magter of

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the Rolls (12 Beav. 77), however, putl the who10 case on the ground of expediency ; he

but that "cases mu$ arise in which it must give way to circumstances and to the necessity of avoiding a failure of justice. Admitting tlhat observation to be correct in some cases, itl is. inapplicable herbe. There [77()] need not. have been a failure of justice herel, f o r the Master of the Rolls himself pointed out (12 Beav. 78) a c o w s e that

says tha t there is no question aa to the validity and importance of t.he general rule, ? 7

might htwe been pursued, by which the. interference of the-Lord Chancellor wi th the case might: have been wholly avoided. There might have been a bill of complaint addressed to the Sovereign in the High Court of Chancery, and it would have been relferred to the Master of the Rolls, a i d the judgmentl e n d l e d as the decree of t.he Sovereign in Chancery.

[The Lord Chancekw+-Would you have said thatp in the actions arising o u t of Fauntleroys forgeries, a Judge who held Bank shares ought not to have sat?]

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Certainly. The illustratli& given in the court below of officers of the -British M u ~ e u m does not apply ; for , a8 such, they have no personal interest+ But in questions relating to Bank of England shares and Emt-India stock, a Judge who holds such stock, and has a pecuniary intere.st in the matter in issue, ought not t u sit. This principle lzaa been applied in The Q u e e n v. The Commksioners fo r t h e Pavzlrzg of Cheltediam,

..

(1 Q.B. Rep. 46T), though there ths Coxnrniasioners were only rated torn the: amount of LL few shillings.

[T1- le Lord C~lancello.r.-Suppo,se a Judge was a holder of stock in the: Three per Cents, and he was called on tol decide a question which might, affect. the funds from which the Three per Cents were paid, would you say that he could notl s i t ? ]

It i s difficlultl tqo suppose a cam where he could have1 any meaaurablei interest. in such a quelstion. direct and a conaiderable intere& in t.lie result of it.

But here the Lord Chancellor was a party to the wit , and had a

[Lord Brougham.-Suppose he had been a trustee alone?] As such he would not have hrbd any intereat whatever. Them Master of the Roll8

a88umed tlhroughout his judgment [771] tha t no intermt would disqualify a Judge unless he was a part$ tu the record, That doctrine i s erroneous, and would lead to abaurd and mischievoua consequencela, .- exist as to courts of law+

If it exist.& agI to coiurts of equity, it must Take the! case What would be. the consequence of it t.here!

of an action of ejectment which might be broughtl f o r the whole estate o f the Judge, and vet r, he might. not ben a party to thel record. If the rule st.ated by the. Master o f the Rolls was true, the Judge really interested might, in consequence of not being named, t ry the: action which involved his whole fortune. It is utterly impossible. to maintain such a propolsitlion. The samel remark may apply to a auit in equity* Suppose a Lord Chancerlor t-o be the only remaining member of an incorporated company, all

~

the others having died,--suppose him to file a bill, his name would notl appear as plaintiff, the incorporated company would be the plaintiff, and according tn.o the doctrine stated in the court below, he might. s i t to decide thel cause on the verv bill which he himself had filed. Before Lord Dgnmans Act he1 would have been disquilified as a witness; even now he could not4 s i t as al juryman, and yet; he is supposed to be entitled t u make this decreei as a Judge. It is clear that no principle of l aw o r of

U A A

reason c.an be citle.d in support o auch a doctrine. Some

of the text-books suggest the: very mode o f proceeding which ought to. have been Nor do the1 authorities, &her of text-booka or of dwided caseHl, justify ita

306

Y

DIMES ?L GRAND JUNCTION CANAL (PROPRIETORS OF) [I8521 111 E;L+C., 772

adopted in this caae, and which was also referred to in the iudment . of the! Master of the Rolls. Y U

In Mitford on Pleading, the jurisdiction of th.e Court of Chancery is spuken of ~

V k

ala one of the means of securing the. due administration of justice. It is said that (p. 6. 4 edit.) a su i t to tihen extraordinary jurisdiction of the: Court of Chancery, on

behalf of a subjwt merely? is commenced by prelferring a bill in the. nature of a petition to the Lord Chancellor, Lard Ekeper, or Lorda Commissionem for, the cuatodv

L

of the Great S e d , or t o the King himself in his Court of Chancerv, in caw the persoh L , - A

holding t he Seal is a party, o r Clhe seal is in the Kings hands; and various authori- tiema arel quoted for. thi8 proposition (4 Vin. Abr. 385). Praxis Angliae Cancellariae (p. 461) is to the same. effect; and in Viners Abridgment (Chancwy, Lm} it i s said tlhat the Chancellor hinlself (16 Edw, 4, 4 b.) may have. relief therel, but he cannot make a decree in his own cause; and the case. o f Szr John Egerton v, Lord. Derby (12 Co. Remp. 114) is cited. There. a proceeding took place in Chancery between Sir John Egerton, plaintiff, and IVilliam, Earl of Derby, chamberlain of Che&ebr, and otnhelrsl, defendants, for the trust. and interest. of a farm, and itl was resolved bv U the Lord Chancellor, thel Chief Justicel o f England, and the; Master of the Rolls, Dodderidge and Winch, Jwtices, Thatl the Chamberlain of Chester, being sole Judge of equity,

~

cannot decree anything wherein himself is party, for he cannot be. a judge in propria c a u ~ a 9 butl in such case where he is party, the sui t shall be heard in the Chancery coram Dom1i.lzo Rege. In an anonymous work ol:f great authorit.y,* the same rule is laid down.

The same rule wa8 likewise declared in the Mayor of Herefords case, (I Salk. 396), U r o o k e s v, The Ear2 of Rivers (Hardr. 503), [773] Bridgwmfi. v. Holt (Show. P. C+ 11 I), The I i i ng v, Paspole (4 T. R, U), Great Charte.v. Kepalzimgton (2 Str. 1173), The King v. Th.e Jugtices of Essex (5 Maulem and S. 513), and in Rolles Abridgment (2 Rnoll. Abr. 92 ; tit- Judges, A., pl. 11). So stlrongIy is it a settled principle of constitutional law that a man cannot bel judge in his o.wn cause, that in Day v+ Savadgc (Hob. 85, 87), it w m said tha t even an Act of Parliamentl made againsti natural equity, as to imk0 a man a judge in his own case, is void in itself; for juru naturae s u n t iirzZ- nzu~tnbi7~u, and they are leges legum. The1 rule haa been declared in Bonharns case (8 Co. Rep, 118), and was also held in thatl of the City of &ondon v, Wood (12 Mod. 669, 686, e t fwq*; see 2 B r a P.C. 409), whe:re the proceeding was an action of debtl for a fine brought in the, Lord Mayors Court, for refusing to wrve tlhe office. of sheriff, and there, though tlhe Lord Mayors interestl in the fine was indefinitely small, it, w a ~ held that the. action could notl be maintained in the court of which he was even nomintllly the chief Judge. It was proved them that the Lord Mayor did not in fact s i t in the court, but that t:he sittings were held before the Recorder ; butl because he was c d e d the Judge of the court, it: was held that bia courtl had no. jurisdiction in the case ; the. deputy could not ac t where; the principal waBl disqualified ; and that rule i s as applica,ble tnu the Lord Chancellor's deputy the VicecChancello.r, as it i s to the Lord Mayorg deputy the Rnecordelr. In an anonymous c m e J Lord Holtr said thatt the Mayor of Hereford was laid by tmhe heels f o r aitting in judgment in a case1 in which he was himself 1e:saor of the plaintiff o n ejectIment., though by the1 charter he was sole Judgel of the court- (1 Salk. 396. Lord Halt also. referred to tnhel ingtance. of a proceeding againstl the Mayor of Hereford, for acting as judge in hia own cause., in an anonymous case in I Salk. 2OX, and likewise in a case of Wright v. Crz~mp (2 Lord Rayin. 4 766), where alone t.he circumstances of the Mayor onf Hemf ordk case1 are- stated. And Holt, C.J., upon this motion cited a case tol have. been adjudged in 5. R., when Hyde ivas Chief Justice, which was thus. The Mayor of Hereford claimed an title! to a house in Hereford, and in order to recover itl he! inlade: a lease of it to J, S., t.0 the. end tlhat he should sue an ejectment, which J. S. did accordingly in the. Mayor% Courtl in Hereford, and so the Mayor in elffect w a ~ judo@ b in his own cause., and he gave judg- rnentn fo r his lemw, and execution was sued there by hini; and upon complaint, of this

* Legal Judicature, in Chancery, 44, 255, 258. (The author of the. book here ref erre.d -to states that, in caws where the Lord Chancellor himself i s a party, tiha decree mustl ben signed by the King himself ; and t h e e.nrolment conclude; thua: It is ordered and adjudged by the. Kings most exceUent Majesty in his High Court of Chancerv, t 8 tnhat-, 3 - ? J -pp 256, 257.)

307

I11 H L C , 774 DIMES U GRAND JWNCTION CANAL (PROPRIETORS OF) 11 852j matter in EL R* the, Court. herel granted an attachment, and committed the Mayor fo r these proceedings. See! alsom tAhe caw of Foxhani Tithing (2 Salk. 607), where mi order of Semionsr w.as*yua&ed because. onel of the. I justices wins $urveyor of the highway,

P - and he joined in making tnhe order, and his name was put in thel caption).

approval of mme of the mostl distinguished foreign jurists. [774] These: cas=, and the declaratlions made in thelm, havel met with the warm

.Thus Mr. Chancellor Kent, in his. Comrnentariw (Vol. i. p. 420) After &atling tlha.t it) is a principle of the English law that the will of the Legislature is- the: supremel law of the land, and dernands proper obedience, hel says : But while we adniit- this conclusion of the Engligh- law, we. cannot but admire the. intrepidity and poIwerful sense of justice which led Lord Coke, when Chief Justice of the Kings Bench, tol declare, a8 he did in Dr, BonhamB case (8 Co. Rep. 118), J that the common law doth control Acts of ParlitL- merit., and adjudges then1 void when. against common right and reason. The same sense of justice and freedom oIf opinion led Lord Chief Justice Hobart., in Day v. Savadge (Hobm 87), to insist that an Act. of Parliament made against natural equity9 as to make a man a judge in his own cam, was void; and induced Lord Chief Justice Holt t-o my, in the case of the City of 2;on.don v, Wood [775] (12 Mod. 687), that the observation of Lord Coke was not extravagant-, but was a. very reasonable. and true saying.

The principle. thus stated mu& themfore be considered t.o be fully established, and its application cannot be doubted, But.. should it. be said tmhat in Borne of the cases now yuotbed the decision appears to have ta.keln place withoutl ar-urnent, thel case of T h e Q u e e n v. The CheZterdiarn Cornzwk&mers (1 Q. B. Rep, 467) furnishels an answer to tlhst observation. In that case a local Actl empornwed commissioners to lay rat.es, a i d gave to parties grieved an appeal to the Quarter Semiom., who^ order was to be fin~kl, -

and no c l e r t i o r a ~ i was to bel allowed. On an appeal, the magist\ratea atl Sessions admitlted, by a majority of eleven. t o eight, certain evidence. which t4hel respondents had objected to; tbhree of tlhe eleven magistrates werel partners in a con-pany to which belonged premises assessed to the. rate in the name of the occupier. The ratel was quashed, but the Court of Quwms Bench held that a question in thel cause having been decided by a Court inipropelrly constituted, on accountl of the! interel& of the! three rnagistratepl, the clause prohibitting the c e h o r w i did notl operate, and the order was brought upJ and although thel affidavits did notl satisfy the Court t4hat the rna@tratea had acted partially, the order of Sesaions was quashed. The King V, The Inhabifiants - of R i d ~ t o n (Id. 479, n+) is to the same effect, and so is The Q u e e n v, The Just ices of H e r t f o r d s h i r e (6 Q.B. Relpm 753), where the Court distIinctly ref useid t o enter i n to the question as to t-he exten t of influence exercised by the1 interested party. The

d .-

principle thus applicable in the; ca8e of a Judge, has been actend on by the Court of Ex- chequer in a civil case with regard to jurymen. In Esdaik v, Lurtd (12 Meem and FV* 734). the plaintiffs represented the London and We&rninat.er. Bank, and in tin action

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broight on a j udgment [776] agrxinst t.he denfendantL3 the: Court of Exchequer corn- ~ pelled the: plaintliffs to undertake tol &rike out of the list of special jurymen any who - mightl be shareholders in tlhe banking coxnpany, The reason for the rule: is stbronger in Fhel case of a single judge tlhan of an individual juryman. acted on in Chancery.

It has like!wise been In Lord *iMostyn v. Spencer (6 Belav. 135) depositions were -

suppressed a.fter publication, on tlhe ground that one: of the; cornmissioners was the nephew and agent of the plaintiff, and i t was held that the1 fact uf . t he l publicat.ion having passed, or t>he death of the, witness, would notl prevent the supprelssion of t.be depositions, That i s a very strong case; for under such circumstances thel elvidencel g iven in that deposition could never be supplied.

The codes of other nations, ancient and modern, have! adopted the same principle. In Justinians Institutes (Book 4, tit.. 5, law 1) the rule is laid down, and it has beLen embodied in tlhe French Code de Procedure Civilel (Partl I, book 2, tit. 21, art+ 378), and in the code of New York, promulgated in January, 1850 (C. 16, art. 3, s+ 188). NO escelption i a made in any of these laws on the ground of any supposed necessity - f o r the Judges s i t h g because he i s the only Judge of the Court. So that, i f there had been any such necessity, which there was notm, tmhel rule would still have been applicable.

The proceedings here are altogether void, and the1 decree must on that ground be reversed.

308

DIMES 23. GRAXD J'UXCTIOK CANAL (PROPRIETORS OF) [ 18 521 111 EL.C,, 777

Mr. St7unrt and Mr. Bethell, for thO relspolndents.-It. is aasumed on the l other side that the bill in thia case was improperly addreased to the Lord Chancellor, and that being so, that all the subsequent proceedings werel void. [777] But that argumentl t? w e n s much too far. It cannotr be pretended, that if Lord Cottenham had ceased to hold the great Selal belfore the hearinm w the fact of the bill being addressed to1 hini would have affected the validity of trhe decision of his 8uccessor. The. mode of addressing the bill has therefore. nothing to, do with the question. Butl perhaps it will be aaid that that argument i s advanced as applicable, not to. tlhe. succelssor of thel Lord Chan- cellor, but to his deputly while he shall hold the. office,-and it will be: contended that the Vice-Chancellor i s his deputy. Even thatl, however, invo1ve.s a cansequence: which defeata this appeal, f o r if nullity runs through the whole proceeding, t.he decree, and the enrolment of it must be affectled witlh tlhatq nullity, and tlhen t h i s appeal cannot be sustained. But supposing tlhe Lord Chanceh- to be incoxnpetlent, his incompetencen does not disqualify the other Judges of the court- any mor0 than the address of the; bill could of helf affect the proceedings, so as to make tliern void. T he Tr i c e- C 11 a nc ell o r is notl t h e 1mr0 deputy of t he Lord Chancellor, but. :is, by virtue of them stathutel 53 Geo. 3, c+ 24, s. 2, an independent, though subordinate, Judge of the Court, and his decision is n o t affected by any objection applicable personally to. the Lord Chancellor. At most, therefore, there can only have been an irregularity he.re, and an irregularity may be waiveld,

The general doctrine for which Rolle's Abridgment has b e n quoted (2 Roll. Abr., tit+ '' Judges," 1 l), that a mari cannot be a judge in hip, own cause, inay be. adrnitlteld ; and further, it may even be admitted, for the sake of argument, that trhat general doctrine applim, whether he i s named or not on the record; but all the case&quotIed are those of inferior jurisdictions, whence there was ELR appeal, or of Courts where thexe were many melmbemrg coniposing them, 80 tlhat it was not a rnatte.r of necelsaity to remrt to the decision of the individual who niight happen ['778] to have an intereat in the question discussed. Bu t where suck a necessity exists, it i s above all ru1e.s olf proceeding; aud that was the opinion of Lord Langdale, whose judgment wag founded o n a ful l consideration 0.f all the authorities. In The li ' img v, The J.ustices of Essex (5 Made and $. 513), this rule of necelssity was recognized and acted o n ; and as corporatiou jus t ices were few in number, it wa8 held that, where they consisted of imre than four, an appeal lay to them at sessions against a poor-rate, a-Ithough there might beless than four who were devoid of inter& in thO question. In like inanneq in. n/iarkukA vm The CiQ/ oif' L ~ m h m (2 Bra P. C. 409. This is evident\ly a cont.iriuatiOn of th0 case of tlhe City of London v. Wood, 12 Mod. 669) 3 it wa8 held that an appeal properly lay from the Slieriffs' Court in London to the Court of Hastings, though the Lord Mayor was th0 chief judge of the Court, and the action was brought on a bond g iven to the Lord Mayor, who was plaintiff in the original cause,

The difficulty of entertaining the objection here raiseid is great, for it cannot be e:nt!artztined without discussing whatl amount- of in.teire& is. sufficientl to disqualify a. j udge. Taker an instlahnce+ The sdar iehs o f the Judges are payable out! of the1 Consolidatqed Fund. Suppose a. very lanrg.e sum has long ren-mined in Co.nsola unclaimed by any one!> and $0 &uprieInting tlhe funds of the country ; but suppose, aha, an individual slhould alppear and clailxi tlo have thatl gum transferred to hirn+ould any of the: Judges try his riglit I3 tlhe

Such a question could hardly kl sahisf actorlily s&led+

Nor do in-

XrT XL+C+, 785 DIMES v4 GRAND JUNCTION CANAL (PROPRIETORS OF) [I 8521

Was b i s a caw in which the. order and decree of t h e Lord Chancellor. were void on a&ountI of his interest, and of his having decided in his. own caw82

'' A public company estnalbiished f o r comtructing a canal waH incorpo.rated, and boughtl solme land for ths purpose of making al canal ; a permson claiming andversnely an interelat in such land recovered the property by ej ectIrnelnt~+ The corporation then filed .a bill a~al ins l tp D the claimant, and to have their M e comnfirmedm

'' The TTiceChancellor, whose authority i s derived under 53 Geo.. 3, cap, 24, granted an injunction, and the relief paved ; and the; Lord Chancellor, who had an interenst as a shareholder in the cornpany tab4 the amount of se.veral thousand pounds, which was unknown to the defendant, upon an appeal by the defendant, affirmed the orders made by the Vic.e-Chancle:llor. The orders were then enrolled, wxne! upon the a.pplication of the defendant, and others. upon the application of the plaintiff, by the! order of the Lo r d C h a n c.ell o r

I+ '' JVelre the! orders of the TTice-Chancenllor void on account. of then interestl of the1 Lord Chancellor 'E

2. '' Were the orders of the Lord Chancellor void on [7=] accountl of his interest, and of his having decided in his own cause?"

ML Baron Farke.-In answer to the first question proposed by your LordBhips, I have tro st at.e the. unanimous o.pinion of the Judges, thab, in the caw suggested, the1 order o r decree of the Lord Chancellor was not absolutely void, on accountl of his intlere:st, but. tmidable onlv.

If this hid been a proweding in an inferior court, one to which a prohibition might go from a court in Westminster Hall, such a prohibition would b granted, pending tho proceedings, upon an allegation that the pregiding Judge o the court was int:er- mted in the s u i t : whether a prohibition could go to the Courtl of Chancery, it ia un- necessary to consider,

If no prohibition should be applied for, and in cases where it could not be granted, the proper mode of baking the objectionl to tlhe interest of the Judge. would be:, in courts o f common law, by bringing a writl of error, f o r error in fact, and awigning that interest asi c:auso of error.

The fomer course was stlatled to be proper in the. caw of Brooks v, Eurl of R.iz:ers (Hardr. 503), it being suggested thatl t h e Earl of Derby, who, was Chamberlain of Chester, had an intlsre& in the wit; and the Court held thatl, where th0 Judge had an interest? neither he n o r h i s deputy c m determine a cause o r sit in court; and if he does, a prohibition lies,

The lahter course wag adopted in the czwe of The Compurzg of Merce rs and 1mn- mongers of C h e s t e r v+ Bowker (1 Stra, 639), where it w'ats a-wiped for error in fact, on the record of al judgment for the Cobmpany of Melrcem in the Mayork Court at Chester, that alfter verdictl, and before judgment, [786] one of the Company of Mercers. became rnayor; and for thati reason the j u d p e n t l was rammeld in the Court of Qua.rter Selwions, and t4hat judgment of reversal affirmed in the King's Bench,

T'iU pro- hibition had been granted in one cans@, o r judgment reversed in the otiher, we: think that the procee,dings were valid, and tlhe pe.rsom acting undelr the1 authority of the Court

The many cam8 in which the Court of King's Bench ha$ interfered (and may have gone to a great lmgth), where; inter1este.d partlie& have acted asm magistratm, and quashed the ordem made. by the Court of which they formed partl, afford a n anallogym

Nons of thaw orders is ablsolutdy void; it would crFe1at.e great confusio.n and in- convenience i f it was, The objection might be one of which the partie;sl acting under tlhelse ordersl niight be totally ionomnt! 47 till the moment of the trial of an. action of tses- pass f o r the1 act done (see, with relation to1 this pointb? the ob.servaticms: of the Lord Chancellor in the case o f Scadding c V. Lorant, ante, p. 447); but thew orders. may be quashed after being removed by cel-t iorari , and the Court ahall do complete ju8tic.e: in tthaltl reispect..

We think that the order of the Chancellor is notl void ; but we are of opinioln, that

he was disqualified as a Judge; thatl it w m al voidable! order, and mightl b qu&ioned a.nd setl aside by alppeal or some application to the1 Courtl of Chancery, if 8: p . 0 - hibition would not lie-

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In neither of these case8 was. the judgment d held to be nbsollutdy void,

would notl be liable to bo treated as tlreispassel-sl. #

as he had such an inferelst. which wodd ham disqualified ab witness un&r tlhel old law f

I

DIMES ?I, GRAND JUNCTION CANAL (PROPRIETORS OF) (2) [I 8 521 III H.L.c., 793

learned friend Lord Cranworth, who i a not no-w here, entertained, during the argu- ment, a very atrong opinion. ThO learned Judges consulted, have come to a clear opinion upon that subject., thati the decree i8 not void, but only voidable; neverthe less, that i t i a to be, avoided when brought under revieiw, and upon objection taken. But with respect to the second point submitted to them, whether o r not then Vice Chancellora j udgment i s void, in reHpect of the Lord Chancellors authority being null from the beginning of the whole proceedings in the Court onf Chancery, I must say that I never from the beginning had the. lea& doubt, and was therefore very 1itt.h surprised to find the learned Judgels. declare that the ViceChancdlor haa an entirely independent jurisdict.ion, and i a not in any respect dependent upon the Lord Chan- cellor, from whom he only receives directions ~ E I to what cages he shall entertain and dispose of. That by the Act i s the only connection which subsists between the two branches of the Court onf Chancery, w i t h the e.xception o f the final enrolment., which requires t he previous signature of the Lord Chancellor; but, as plainly as+ an enacb ment can speak, the ViceXhancellor has a aubatantive and an independent jurisdic-

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t ion conferred upon him by the very words of the statute; and it is expressly at-ttted in that statute that his decrees ahall be decree.8 of the Court of Chancery, and shall have execution as such. And then follows the only connection established between his proceedings and those of the1 Lord Chance.llor, tha t there shall be no enrolment of a decree, with the view [793] -to further proceedings, without the previous signa- ture of the Lord Chance.llor; but the! giving of that signature cannot affect, the validity of the Vice-Chancelloia decree. Therefore, my Lords, we have now in the first place tob declare, agreeing in opiniun with the learned Judgesl, that the. interest of the Lord Chancellor rendered his decree voidable, and. to declare that thatl decree is revemed, and we have then to denal with. the decree of the ViceChanceUor (see post, p. 808).

Lord Campbell.--I take exactly the mme; view of this cam a8 do. my noble and learned friends, and I have very little to add to the i r observations. With respect to the point upon which tihe learned Judges were1 consultsd, I must say that I entirely concur in the advice which they have given to your Lordships. No one can suppose that Lord Cottenham could be, in the. remotest degree!, influenced by tlhe int.eregt that he had in this concern; but, my h r d e , it i s of the :last importlance that the maxiin t h a t no man is to1 be a judge in his own cause should be held sacred. And that i~ not to be confined to a cause in which he i s a panrty7 but applies to al cause in which he has a n interest. Since I have had the honour tom be: Chief Justice of the Court of Quwn8 Bench, we have again and again set aside proceedings in inferior triburmls because an individual, who. had an interest in a catlsel, tooAk a part in the decision. And itl will have a most s.alutlalry influence! on thhe&e t-ribun-ah when it is known thah tlhis high Courti o f last resort, in a. cnalsel in which the h l r d Chancellor of England had an. intersst, considered that his decree was on that account a decree not accord- ing to law, and was set aside. This will be a leslmn. to1 all inferior tribunals; to take care not only that in their decrees they arel not influenced by their personal interest, but to [794] avoid the appearance of labouring under such an influence. It is quite clear, likewise, I believe, that t h O orders of the Vice-Chancellor cannot be in the slight-est degree affected by what the Lord Chancellor has. done,, nor can i t be main+ tained that tihe ViceChancelZor was acting merely a s the Lord Chancellors delputy when these order8 and dame!@ were pronounceld (post, p. 809, and see the next case).

WILLIAM D I M E S , - A ~ ~ e Z h ~ t ; the PROPRIETORS o f the GRAND JUKCTION CANALJ T. E. SEIDMORE, and Others, Respondents [June 29, 18521.

A n Act of Parliament incorporated certain permm as a conipany f o r the purpose of making a canal, and gave them powers to purchase and hold lands for the purposes of the Act; it authorized peraona to contract for? sell, and convey their lands, gave a f o m of conveyance of d l the estate!, right, tiitllel, and interest of the person conveying, and enacted that a.ll such contracts ? agree

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