that it was the duty of the Lord Chancellor to enable the defendant to inrol the decree made on the appeal, and also the order to be made on this motion, and the Master of the Rolls advised the Lord Chancellor that the present motion ought to be dismissed, with

costs.

A motion in this case was presented to the Lord Chancellor, who requested the Master of the Rolls to hear it and state

his opinion. It asked that an order made by the Lord Chancellor on the petition of appeal and rehearing of the defendant, Mr. Dimes, might be discharged; that the plaintiffs might replace in the hands of the Registrar the sum of 201. deposited by the defendant on presenting his petition of rehearing, and repay to Mr. Dimes the amount of the taxed costs of the petition incurred by the plaintiffs, which had been paid by Mr. Dimes; that the title of the petition might be amended by adding the names of Messrs. Bohan & Martin; and then that the petition might be restored to the Lord Chancellor's paper of rehearings and appeals, and that proper directions might be given by issuing a commission, or otherwise as might be necessary, for the rehearing and determining such petition of rehearing and appeal before the Master of the Rolls, assisted by two Judges of the courts of common law at Westminster.

The circumstances arose as follows: William Dimes was the lord of the manor of Rickmansworth, in the county of Hertford, and as such he claimed to be entitled to certain copyhold lands, which the company, under their acts of parliament for making the canal, had purchased of the copyholder without reference to the interest of the lord of the manor, and through which the canal passed for about half a mile. Upon the death of Joseph Skidmore, the copyhold tenant, the usual proclamations were made, and as no person came to be admitted, Mr. Dimes seized the lands, which the company had purchased, and succeeded in establishing his right to the possession at law against the company-Dimes v. the Grand Junction Canal Company (1). The Grand Junction

(1) 9 Q.B. Rep. 469; s. c. 16 Law J. Rep. (N.S.) Q.B. 107.

Canal Company in the mean time filed their bill for relief in this court; and the Vice Chancellor, by his decree at the hearing, declared that the heir according to the custom of the manor of Joseph Skidmore, the last tenant, ought to be admitted as tenant upon the court roll, and that when he had been admitted he must be held to be a trustee for the Grand Junction Canal Company; that the company must pay the fines and fees on his admission; and he referred it to the Master to settle the amount of the fine; and the injunction which had been granted upon the filing the bill was made perpetual-The Grand Junction Canal Company v. Dimes (2). Mr. Dimes appealed against this decision, and the Lord Chancellor affirmed the decree, and dismissed the appeal with costs―The Grand Junction Canal Company v. Dimes (3). It was subsequently discovered by Mr. Dimes that the Lord Chancellor was the holder of ninety-two shares in the Grand Junction Canal Company; some of these he held in his own right, and the others he held in a representative character, and in consequence Mr. Dimes gave the present notice of motion.

Mr. Daniel, Mr. Peacock, and Mr. Smythies, for Mr. Dimes. The appeal had been heard no doubt through inadvertence, but the Lord Chancellor being a holder of shares in the company was not a fact within the knowledge of the defendant, but it must necessarily have been within the knowledge of the Judge, when he affirmed the decree of the Court below. The interest of a shareholder was not merely nominal; it was such a beneficial interest as made the Lord Chancellor virtually one of the plaintiffs in the suit, and the effect in law was to deprive him of all authority to make any decree or order; the case, therefore, was coram non judice, and no conclusion which a Judge under such circumstances might arrive at could affect the interest of the defendant, and the decree which had been made was wholly void. These principles were supported by authority. In 2 Roll. Abr. tit. Judges,' A, pl. 11, and 14 Vin. Abr. tit. 'Judges,' A, pl. 11, it is stated that "if the

(2) 15 Sim. 402; s. c. 16 Law J. Rep. (N.S.) Chanc. 148.

(3) 17 Law J. Rep. (N.S.) Chanc. 206.

Lord Chancellor makes a decree between two strangers in a thing which concerns himself in interest, and for himself, it is void; because he cannot be a Judge in his own cause"; and The Earl of Derby's case (4) was cited, in which it was resolved "that the Chamberlain of Chester, being sole Judge of equity, cannot decree any thing wherein himself is party, for he cannot be a Judge in propria causá." Since that time no case had arisen in the superior courts, in which the rule of law, so properly and justly established, had ever been called in question, but there had been some cases in inferior jurisdictions-The City of London v. Wood (5), Brookes v. the Earl of Rivers (6), Great Charte v. Kennington (7). In this case two Justices of the Peace made an order of removal, which was quashed at the sessions, because one of the Justices was an inhabitant of the parish whence the pauper was removed, and the King's Bench confirmed the order of Sessions, observing "the practice could not overturn so fundamental a rule of justice as that a party interested could not be a Judge." In consequence of this the 16 Geo. 2. c. 18. was passed to empower Justices of the Peace to act in certain cases relating to parishes and places, to the rates and taxes of which they were rated or chargeable. It was therefore apparent that no Judge could by law be permitted to adjudicate in any proceeding in which he was even remotely interested, and that it was for the legislature alone to say whether in any case there should be a deviation from the established rule of law; and even the statute which was passed limited the power given to the cases specified in the act, and declared that nothing therein contained should authorize or empower any Justice or Justices of the Peace to act in the determination of any appeal to the Quarter Sessions from any order, matter, or thing relating to any such parish where such Justice or Justices were charged, taxed, or chargeable The King v. the Inhabitants of Yarpole (8), The King v. Gudridge (9),

(4) 12 Rep. 114. (5) 12 Mod. 669, 687. (6) Hardr. 503. (7) 2 Str. 1173.

(8) 4 Term Rep. 71.

(9) 5 B. & C. 459.

The Queen v. the Commissioners for Paving, &c. the Town of Cheltenham (10), The Queen v. the Justices of Hertfordshire (11). These cases were instances of the principle that no man could be a Judge in his own cause; and though they arose in inferior jurisdictions, they applied equally to the highest tribunals in the kingdom. It was a principle of the greatest practical importance to the subject, who reposed an unbounded confidence in the integrity of the Bench. The great tendency of modern legislation was to vest the administration of justice in the hands of individuals; and assuming that such persons had a pecuniary

or other interest in the matter to be deter

mined, and that they were to be left to their discretion whether they would act or not, would the confidence now existing continue? If they had a pecuniary interest, and were to be allowed a discretion, what was there to prevent a Master in ordinary from winding up a joint-stock company in which he was interested as a shareholder? What also was there to prevent a taxing Master from taxing a bill of costs which he might be liable to pay? And what observations might not a Recorder give rise to if he, who is now by virtue of the Municipal Corporation Act the sole judge of his own court, in a question relating, for instance, to a dock company, in which he might happen to have shares, were to adjudicate upon the rights of parties without reference to the fact of his having an interest? What also would be thought of a Judge of a county court or a stipendiary magistrate who should act in matters in which he was interested? It was fortunate that this case had arisen in the Court of the Lord Chancellor, on whom no imputation could rest; but the question was, could he sit as Judge, or was it discretionary with him to do so in cases in which he had an interest? It was of the greatest consequence that these things should be known. Appeals to the House of Lords were expensive, and in the present case Mr. Dimes, by appealing there, could not get full relief in consequence of the injunction which had been granted,

(10) 1 Q.B. Rep. 467; s. c. 10 Law J. Rep. (N.s.) M.C. 99.

(11) 6 Q.B. Rep. 753; s. c. 14 Law J. Rep. (N.s.) M.C. 73.

and which would prejudice him in the mean time. If the defendant had appealed directly to the House of Lords from the Vice Chancellor, the Lord Chancellor would have signed it, and the order would have been his. To that there could have been no objection. The complaint was that he had exercised his mind judicially upon the question before the Court. The mere signature differed materially from adjudication: the one was only ministerial, the other judicial; and the complaint was of the exercise of that judicial authority under circumstances which gave a personal interest.

[The MASTER OF THE ROLLS.-By the notice of motion you ask for a commission or otherwise. Suppose the decree was set aside, who in this country has a right to issue a commission as asked? The Crown may take away the great seal and give it to any one: why therefore do you ask for a commission when you may now go to the House of Lords?]

The Crown had the power, and it might be petitioned to grant a commission.

Mr. Stuart, Mr. Turner, Mr. J. Parker, and Mr. Busk, for the Grand Junction Canal Company.-In consequence of the Lord Chancellor's decision being adverse, Mr. Dimes now asks to have his case heard before an extraordinary commission to be especially appointed; but if the Lord Chancellor could not make the decree complained of, how could he discharge it, or make any order in the matter? There was no distinction between ministerial and judicial decrees; both were inrolled, and the one was a judicial act of the Lord Chancellor equally with the other. The defendant in this case had partially succeeded at common law; he therefore desired to have the equity disposed of by a commonlaw Judge. The cases cited did not refer to corporations where there were but two Justices, but in the case of Great Charte v. Kennington, the instance of corporations was referred to; and though it was held that a party interested could not act as Justice, yet it was said "that if it appeared there were no other Justices, it might be allowed, if to prevent a failure of justice"; and in the cases of corporations, there were cases enough invalid if a Justice who was a member of the corporation was

disqualified from adjudicating in matters in which it was concerned. There were also cases decided by Lord Eldon in reference to Bank stock, of which he was a proprietor; but on that account no objection had ever been taken. It was not every partial interest that incapacitated a Judge from acting. It was stated in Bac. Abr. tit. 'Execution,' B, 1, note a, as to recognizances to be taken in Chancery to avoid execution, that "if a person enters into a recognizance to the Chancellor for a debt due to himself, it is a void recognizance, for the law will not trust him with the exercise of his power in his own case; but if one enters into a recognizance to the Chancellor and a stranger, it is a good recognizance as to the stranger; for, so far as his interest is concerned, the Chancellor is a proper person to take it, and cannot be said to be a Judge in his own cause." If, therefore, the rule of law was without exception, there were many judgments which might be questioned.

Mr. Randell appeared for Messrs. Bohan and Martin, who had been made parties as claiming an interest in the manor, but who had disclaimed all interest by their

answer.

Mr. G. L. Russell appeared for Thomas Emmott Skidmore, the heir according to the custom of the manor of the last tenant.

May 23.-The MASTER OF THE ROLLS. -The Lord Chancellor has requested me to hear this motion, and to state my opinion in this place. The order sought to be discharged was made by the Lord Chancellor on a petition of rehearing of a decree made by the Vice Chancellor of England; his Lordship thereby affirmed the decree made by his Honour. If his Lordship's order were discharged, the decree of his Honour would remain in full force, and the position of the parties would not be in any material degree altered. It has been stated at the bar, by the counsel of Mr. Dimes, that at present the only object of Mr. Dimes in making the application is to be placed in the same situation in which he was before the Lord Chancellor's order was pronounced. The application is not made on the ground of any alleged error in his Lordship's judgment; counsel on both

But

sides have abstained from making any observations on the merits of the matter in litigation between the parties in the cause, but as Mr. Dimes desires his petition of rehearing to be restored to the Lord Chancellor's paper, I must presume that he still alleges error in the decree of the Vice Chancellor of England, and by consequence that the Lord Chancellor's order, affirming that decree, is erroneous. except in that way, and inferentially, no imputation has been made before me against the order which Mr. Dimes seeks to discharge. It was made after full argument, and may be perfectly just; but it is contended that the plaintiffs are not entitled to the benefit of the judgment which they have obtained, and that the order ought to be discharged on motion, without a rehearing, or any regard being had to the merits of the case as between the parties.

The ground of the application is, that the Lord Chancellor at and before the time of the order was and still is concerned in interest in the matters in question in the cause. The suit relates to certain property, to which the plaintiffs and the defendant respectively claim to be entitled. The plaintiffs are an incorporated joint-stock company, possessing property and effects, to which the proprietors are entitled in shares; and the Lord Chancellor having been long before and at the date of the order proprietor of certain shares in the company, it is alleged by Mr. Dimes that there is such an interest in the concerns and general property of the company attached to these shares, that the Lord Chancellor, as owner of them, was, and is thereby incapacitated to act as Judge in any cause to which the company is a party. It seems scarcely worth while to consider the nature or amount of the interest attached to such shares in a joint-stock company, the value depending on the market price, on sale, or on the result of the windingup of the affairs of the company. He has

a strange notion of things who supposes such an interest to be capable of producing any bias in the mind of a Judge administering justice in public, and subject to appeal, in a matter having no direct or special relation to the value of such shares. But on the present occasion, it seems to me more satisfactory to assume that the NEW SERIES, XVIII.-CHANC.

interest is such as to make it undesirable at least, if not objectionable, to bring a litigated matter, affecting the company, before a Judge who has any such interest.

The fact of his Lordship being the owner of such shares in the Grand Junction Canal Company was, upon the inquiry of Mr. Dimes subsequent to the hearing, communicated to him by the direction of his Lordship. Mr. Dimes says that he was not aware of it at the time he presented his petition of rehearing or at the time the order was made; and it is not alleged that at the same time the Lord Chancellor was aware, or in any degree conscious that he had, or could be supposed to have any interest in the matters in question in the cause. Mr. Dimes has not stated any special reason, or made any special appli cation for a second rehearing, upon which, waiving any objection on the ground of alleged incapacity, the cause might have been reheard for the Lord Chancellor by other Judges; but he insists on a very important principle, from which he says there ought to be no deviation or exception. The application itself is made on grounds which, as they are brought forward, must be considered as purely technical, and in a form applicable merely to a technical objection. He alleges no error in the order of which he complains; but he says that the Judge was by his interest incapacitated from acting as a Judge in the case, and consequently any act done, or any order made by him, as Judge, is merely void. Nullity of the order is the sole ground of the application, which must be dealt with in the manner in which Mr. Dimes himself has thought fit to make it. There is no question as to the validity and importance of the general rule, that no ought to be a Judge in his own cause, and that no Judge ought, by himself or his deputy, to hear and determine any cause, or make any order, or do any judicial act in a case in which he has a personal interest. This is a fundamental and most important rule, which is not disputed, and which is not to be departed from without necessity. And in all cases where there are several courts of concurrent jurisdiction, or one Court composed of several co-ordinate Judges capable of being held without the presence of any who may happen to be

зв

one

concerned in interest, there is no difficulty in acting on the rule.

But general and important as the rule is, cases may arise in which it must give way to circumstances, and to the necessity of avoiding a denial of justice. In the case of Great Charte v. Kennington the Judges said "the practice could not overturn so fundamental a rule of justice as that a party interested could not be a Judge." But as to the case of corporations, which had been referred to in the arguments, they said "that if it appeared there were no other Justices, it might be allowed to prevent a failure of justice"; a failure of justice was therefore in this dictum considered to be a greater evil than the departure from that fundamental rule, that a party interested cannot be a Judge: and where the whole jurisdiction over the matter in question is vested in one Judge, where there are no co-ordinate Judges, where the subordinate Judges are in substance and effect deputies whose orders are not complete or final till they are formally sanctioned and adopted by the one only chief Judge, cases must arise, in which it may be difficult, if not impossible, to act in strict conformity with the rule, without denying justice. Now, the Lord Chancellor, whatever may be the judicial assistance provided for him by law, is virtually the sole Judge of the Court of Chancery upon bills of complaint addressed to him, and, notwithstanding his position, he cannot be so entirely withdrawn from the affairs, business, and duties of ordinary life as to be altogether exempted from the necessity of suing or being sued in the Court of Chancery, or exempted from all personal interest in matters which may be litigated in the Court of Chancery. The cases, in which the Lord Chancellor is a party to the suit are provided for by the established practice of addressing the bill of complaint, upon which relief is sought, not to the Lord Chancellor, as in the usual course, but to the King in his High Court of Chancery. In such cases the cause may and ought to be heard before the Master of the Rolls, with or without assistance. The order or decree is made personally, indeed, by the Master of the Rolls, with his assistance if any, but it is formally and technically com

pleted, made final, and inrolled as the decree of the King. Such, I conceive, to be the regular course of proceeding in such cases, although some variances and discrepancies in the form are to be found on the records of the Court. But cases in which the Lord Chancellor is a necessary or proper party do not assist in the determination of the present case, in which the Lord Chancellor is not so interested as to be a party either necessary or proper to the suit. The bill is not, and I apprehend could not properly have been, addressed to the Queen in her Court of Chancery. It is addressed to the Lord Chancellor himself. Any order made in the cause by the Master of the Rolls or any Vice Chancellor must be subject to be reheard, discharged, or altered by the Lord Chancellor, and by the Lord Chancellor alone, and must be adopted and sanctioned by him before it can be, or be deemed to be, a complete and final order of the Court of Chancery; and, consequently, if the Lord Chancellor cannot, in such a case, lawfully make any judicial order, or do any judicial act, there must of necessity be a failure of justice in the Court of Chancery, and many inconveniences would happen or might happen.

The rule, if strictly applied to the extent now contended for, would make it unlawful for the Lord Chancellor being a proprietor of Bank of England or East India Stock, or being a trustee of the British Museum, which he is officially, having in that character very important duties to perform, to make any order or do any act in a case in which the Bank of England, the East India Company, or the British Museum might happen to be parties. Many other analogous cases might very easily be stated; and the objection would not be less although the subject of the immediate litigation did not directly relate to anything in which the Lord Chancellor might be personally concerned or interested, or to any duty which it might be incumbent on him personally to perform. Because the general assets, or the general conduct of such a corporation or society as I am alluding to, may be more or less affected by the result of any litigation whatever, in which the corporation or the society may be engaged: