and the general assets, or the general conduct of the corporation or society being affected, the value of shares, the interest of proprietors, and the particular duties of trustees may be remotely, and consequentially indeed, but in some degree affected. But interests of this kind do not make it necessary or proper that all persons possessing them should be made parties to a cause, and in cases where the Court of Chancery, or in other words, where the Lord Chancellor has the sole jurisdiction in the matters brought into litigation, it may be well asked, whether the Lord Chancellor, even if he wished to do so, could lawfully refuse to hear and adjudicate in such a case of indirect and remote interest. The question does not seem to be so much whether the Lord Chancellor can lawfully make an order, as whether he can lawfully refuse to do so when the purposes of justice require it.

But, for the purpose of considering how the matter stands in the present case, let it be supposed that the interest imputed to the Lord Chancellor had been known when the decree of the Vice Chancellor of England was pronounced against Mr. Dimes, and that Mr. Dimes, being dissatisfied, had desired to appeal. The Lord Chancellor being, as Mr. Dimes now alleges, incapable of hearing the case, and deciding upon it, Mr. Dimes must have desired to appeal from the decree of the Vice Chancellor of England to the House of Lords; and surely he had a right to do so, and ought to have had the means allowed him-ought to have been thereby enabled to bring any error of which he complained before a perfectly competent and disinterested tribunal. But he could not take his appeal to the House of Lords until he had inrolled his decree; and the decree of the Vice Chancellor of England could not be inrolled till it had received the signature of the Lord Chancellor. According to the legitimate effect of the argument addressed to me, this signature could not have been lawfully affixed; for though it was alleged that the act of signature to the docket of the decree was an act merely ministerial, and might therefore have been lawfully affixed, though the Lord Chancellor could not do any judicial act, yet I am of opinion that the signature of the Lord Chancellor to the

decree made by a subordinate Judge of his court is not a mere ministerial act.

The Lord Chancellor having confidence in the decree of his subordinate Judge, and in the officer who certifies to him that the proceedings are regular, may, if he thinks fit, in aid of justice, and in order to give parties the means of appealing to the House of Lords at once, sign the docket of the decree made by the Master of the Rolls, or the Vice Chancellor, without applying his mind to the consideration of the merits of the case, or himself investigating the agreement between the docket and proceedings, or orders of the Court. But in truth the act is judicial. The Lord Chancellor may, if he thinks fit, refuse to sign the docket without first personally satisfying himself that it is right for him to do so. In this stage of the cause, therefore, by the direct argument of Mr. Dimes, the Lord Chancellor could not have lawfully heard the cause, and by a necessary consequence of his argument, the Lord Chancellor could not have lawfully affixed his signature to the docket of the Vice Chancellor's decree. The decree could not have been lawfully inrolled; the House of Lords could not have lawfully heard the appeal -every step would, according to the argument used in this case, have been a nullity. The Lord Chancellor, being incapacitated to make any order, could neither reverse the decree of the Vice Chancellor, nor affix his signature to the docket of the decree, so as to enable Mr. Dimes to appeal to, and procure its reversal in, the House of Lords; and supposing the decree of the Vice Chancellor to have been erroneous, as Mr. Dimes alleges it to be, there must have been, and must now be, by force of his argument, a complete failure of justice in the Court of Chancery. Nothing less than an act of parliament would have afforded, or could now afford Mr. Dimes any relief. I am, however, of opinion that the argument of Mr. Dimes is fallacious, and that the Lord Chancellor could not have lawfully or properly held himself to be incapacitated to make any order in the cause. I consider the signing a decree of a subordinate Judge by the Lord Chancellor to be a judicial act; but I am, nevertheless, of opinion, that if Mr. Dimes had desired it, the Lord Chancellor not only

might, but in the discharge of his duty must have signed the docket, and thereby enabled Mr. Dimes to go at once to the House of Lords, where complete justice might have been satisfactorily done. But Mr. Dimes, in ignorance of the interest, which he has since discovered, presented to the Lord Chancellor an ordinary petition to rehear the cause on the ground of alleged error in the decree of the Vice Chancellor. I will now suppose that at the time of the cause being called on for hearing before the Lord Chancellor the interest had been discovered, and stated, and the objection taken, and not waived, and I ask, what could or ought to have been done?

The motion, in a part of it, which was abandoned at the hearing before me, asked that, on the restoration of Mr. Dimes's petition to the Lord Chancellor's paper of rehearings and appeals, proper directions might be given, by issuing a commission, or otherwise as might be necessary, for the hearing and determination of the said petition of rehearing and appeal before the Master of the Rolls, assisted by two Judges of the courts of common law at Westminster. I think that this part of the motion was very properly abandoned, first, because I am of opinion that the Lord Chancellor has no legal authority to issue any such commission as is suggested; and secondly, because the undoubted authority of the Lord Chancellor to require the assistance of the Master of the Rolls in any judicial matters pending in the Court of Chancery does not enable him to depute to or to vest in the Master of the Rolls that authority, which by law is vested in the Lord Chancellor alone, to reverse, discharge, or alter any decree or order of the Vice Chancellor of England. It is plain, therefore, that Mr. Dimes has not well considered the nature of his case, nor his course of proceeding. If he had any just ground of complaint, (the course at first suggested by him being now properly abandoned) the question remains what could, or ought to have been done if the interest had been discovered, and stated, and the objection taken, and not waived at the hearing? And this is in effect precisely the same question as would arise if the present application, to the extent to which it is nów pressed, were complied with, namely,

could the Lord Chancellor have lawfully refused to make an order, or to interfere in any way? It is clear that no order could be made on the petition, but by the Lord Chancellor. No extraneous, or foreign assistance, no hearing by other Judges, nor any judgment pronounced by them could make the order anything but the order of the Lord Chancellor. In this respect it would be like the case of The City of London v. Wood, in which an action had been brought in the name of the mayor and commonalty of London, in the court of the mayor and aldermen. The trial took place before the Recorder in the absence of the Mayor; but it was held that though the Mayor absents himself, and the Recorder sits for him, it alters not the case, for though the Recorder sits personally, and it is personally his judgment, yet it is legally and virtually the act of the Mayor: the Recorder is his deputy, and his act is the act of his superior: the style of the court is "Before the Mayor," and a man cannot sue either before himself or his deputy. So, if the Lord Chancellor were to absent himself, and ask the Master of the Rolls, with or without assistance, to hear the cause, the order made on such hearing, whatever it might be, would legally and virtually be the order of the Lord Chancellor, and, according to the argument in support of this motion, would be an illegal act and order, and therefore absolutely void.

Now, no party can have a right to call on a Judge to make, and no Judge certainly can be obliged to make, an illegal order; and it is, I think, an inevitable consequence and result of the argument of Mr. Dimes, if it were held to be valid, that the Lord Chancellor ought to refuse to make any order in this cause, though the consequence -the direct and necessary consequence should be a failure of justice, or rather a denial of justice to Mr. Dimes himself. What Mr. Dimes now asks would not in the least degree relieve him from the difficulty in which he imagines himself to be involved. What he asks, is in effect this, that the order made to affirm the decree of the Vice Chancellor of England may be treated as a nullity for the purpose of restoring the cause to a situation in which there must be either a refusal to make any order, and thereby a denial of justice; or

some other order must be made, which, on the same ground as the order already made, ought to be treated as a nullity, again producing to Mr. Dimes a denial of justice. The absurdity of this course of proceeding is manifest, and there is no excuse for it. There need be no denial or failure of justice in this or any like case. It may be admitted that, in all cases, where a strict application of the rule would not lead to a failure of justice, the Judge ought not to make an order in a cause in which he is interested.

This being so, and it being of the utmost importance to avoid everything tending to throw even a breath of suspicion on the purity of the administration of justice, I am, nevertheless, of opinion, that, even in a case of imputed interest, the Judge is not incapacitated from making the order, if, by refusing to do so, justice would be denied. If the interest had been suggested at the time of the hearing, I presume that the Lord Chancellor, acting as any other Judge would do on the like occasion, would have proposed to the parties to have the case heard before some other Judge or Judges, by whose opinion or advice his Lordship could make such order as should appear right. If both parties had consented to this, all might have been well. No order could indeed have been made free from the objection which Mr. Dimes now insists upon, but there might have been a hearing for the Lord Chancellor before other Judges. An order might have been made in his Lordship's name, and with his Lordship's sanction, by those other Judges, and an inrolment of the order, under the Lord Chancellor's signature, might have enabled either party to appeal ultimately to the House of Lords. But though perfect justice would in this way have been done, and all real and substantial objections entirely obviated, it would, according to the argument of Mr. Dimes, have been all entirely wrong, and the whole proceedings would have consisted of a series of nullities. If either party had insisted, as Mr. Dimes now insists, that the Lord Chancellor was incapacitated from making any order, his Lordship would then have had to consider that objection, and to determine what was necessary to be done to prevent a

failure of justice. And bearing in mind. that the only object of the present application is to place the cause in the situation I have last supposed, I think that the only real or substantial question to be now considered is, what is required to be done to prevent a failure or denial of justice? It does not appear to me to be necessary to make any remark upon the strange and unqualified assertions sometimes made, even by high authority, upon the incapacity, not only of Judges and of Courts, but even of parliament itself to do certain supposed acts in certain supposed cases, and upon the alleged nullity of such supposed acts. I do not concur in the truth of the broad and unqualified assertions which have sometimes been made on these subjects, and which appear to me highly calculated to mislead the unwary; and it is my duty on this occasion to express my own opinion that there is not, and cannot, in any case be an incapacity of the Judge to make any order or do any act in a matter within the proper, peculiar, and exclusive jurisdiction of his office, if such order or act be necessary to prevent a failure of justice. I think that whatever his interest may be, if justice cannot be had without an act or order of his, he cannot lawfully refuse to do the act or make the order required. It appears to me that, in cases where questions of this kind arise, the Judge must have and exercise a certain degree of discretion; and that having the capacity, his duty does not extend further than the necessity of the case requires. If there are other Judges having co-ordinate jurisdiction, and sufficient in number to make a Court without his attendance, he may and ought to retire, and refuse to act at all; but if he, like the Lord Chancellor, should be the sole and exclusive Judge having jurisdiction in the case, it is otherwise; he must do what is incumbent on him to prevent a failure of justice. He is not to disregard the objection to a cause being heard and decided by a Judge who has, or is even suspected to have, an interest in the subject in litigation; neither is he to disregard his first duty to prevent a failure of justice: and applying these principles to the present case, that of a petition to rehear a cause in which the Vice Chancellor of England has made a decree, I think that notwithstanding

ficate, and for a reference back to him to review his report :-Held, upon a general certificate of all the Taxing Masters, that those payments only which are made in performance of professional duties and in a professional character, ought to be allowed as disbursements in a bill of costs, and that the 641. 18s. 6d. was not paid in a professional character, and was not properly introduced into the bill of costsand; the petition was dismissed, but, under the circumstances, without costs.

James Taylor, who was the sole executor of his brother John Taylor, employed Mr. Remnant, from 1845 to February 1848, as his solicitor in all business connected with the executorship, except one debt, which was due to the estate of the testator from Richard Johnson, and in that he employed Mr. Smallpiece, another solicitor.

Mr. Smallpiece brought an action against Richard Johnson in the name of James Taylor, and obtained a judgment against him for 501., and execution was issued, under which various effects were seized, but they were claimed by Elizabeth Johnson and Richard Johnson, as the executrix and executor under the will of Richard Johnson the elder, and they succeeded in establishing their claim in an action, brought, under the Interpleader Act, by the direction of a Judge of the court in which the original action had been brought, and obtained a verdict against James Taylor.

In January 1847, after the verdict had been given against James Taylor, Mr. Remnant, who, previous to the action, had applied to Richard Johnson for payment of the debt, again interfered as the attorney of James Taylor, and endeavoured to make arrangements in respect of the debt and the litigation concerning it; but Elizabeth Johnson and Richard Johnson claimed a debt as due to them in their representative character against James Taylor, as the executor of his brother, and they also required him to pay the costs of the issue, which had been taxed at 64l. 18s. 6d.

No arrangement could be effected; and as James Taylor was unable to pay the costs, Mr. Remnant, under a written authority, and as the solicitor of James Taylor, though he had no cash account with him,

first gave his undertaking, and subsequently paid the 647. 18s. 6d. costs.

Mr. Remnant had previously paid 281. 18s., the proctor's charges for proving the will of John Taylor, and on the 1st of June 1848 he delivered his bill of costs, which included the 287. 18s. and the 647. 18s. 6d.

On the 1st of July 1848, James Taylor obtained the common order to tax the bill of costs, and, among other things, it directed that Mr. Remnant should be at liberty to charge all sums of money paid by him to, or on account of James Taylor.

The Taxing Master allowed the 287. 18s. as a proper item and disbursement to be included, but he struck out from the amount of the bill, among other items, the 647. 18s. 6d., on the ground that it was not a professional payment properly introduced into a professional bill, though he retained in the bill numerous items relative to the business, and to the claim in respect of which it was made, including an item for attending to pay the 647. 18s. 6d.

In the result the Taxing Master certified that he had taxed off more than one-sixth, and charged Mr. Remnant with the costs of the taxation, which he taxed at 12l. 6s. 2d. It was, therefore, now prayed that Mr. Remnant might be allowed to except to the certificate of the Taxing Master in respect of the 647. 18s. 6d., and the taxation of the costs of the reference and taxation, and for a reference back to the Taxing Master to review his certificate.

Mr. Turner and Mr. Greene, for the petitioner. The 647. 18s. 6d. being costs of the action, were paid by Mr. Remnant, as the solicitor of James Taylor, in respect of the business connected with the executorship. The amount was properly included as an item in the bill of costs, instead of being entered as a payment in a cash account-In re Bedson (1); the Taxing Master had disallowed the item as improperly included in a bill of costs; but, on the other hand, he had allowed all the other items connected with the charge and with the negotiations for a compromise. It became material to consider whether this

(1) 9 Beav. 5; s. c. 15 Law J. Rep. (N.s.) Chanc. 153.