----A

111 H,L,c., 760

WAND JUNCTION CANAL (PROPRIETORS OF)

DIMES

11852)

su iti* The cause1 was heard before the: ViceCliancellolr, whol granted the. relief
m appeal> affirmed the order
sought by the1 company. The: Lord Chancellor, c
of the Vice-Chancellor :
Held, bhat the Lord Chanceilor was disqualified, o n tihe ground o f intereat, from
sitting asl a judge in the camusem?and t h a t his decree was therefore voidable.;
and must coinmquent.lybe reveraed.
Held allsol, thatl the Vice-Chancellor is, u1ide.r the 53 Gee, 3 , c+ 24, a judge subordinate to, b u t nott dependent on, the Lord Chancellor, and that, consequentllv,
the disqualification of the Lord Chancellor did not affect. h i m ; but that4h i a
decree mighti be ma.debtlhe subject of appeal to this. House:.
Before a decree made by the Vice-Chance!llcw can ben appealed against, it i s rep
quired t o bei enrdled. Th,el enrolmenti is thel act of the: Lord Chancellor :
Held, that thel twt of enrolmentl, though performed by a Lord Chancellor disqualified by inter& from adjudicating in the cause, was not affected by his
disqualification, but was v d i d f o r tmlmpurpow of bringing u p t.lzel appeal to
this Ho.use,
The respoudenta were cre.at.eda corporrationby the Actl 33 Gee. 3, c+lssrr,
-

Joseph Skidmore!, sirice decease.d, wasl then the: o w n e r 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 o f the Grand Junction Canal, mid were so
described in the plansl and books of relference. A small part o f each of these fourfielda was, in 1796, set outl a8 necessarv for making the canal and towiug-path: f o u r
small angles o r CornelrS of trhem were t 1 Lcut off from the rest of Skidmorek lands.
The. relspondentls,by agreement w i t h Skidmore, the: cnoPpyhorlder,
purchased t h e s e
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
tlhe. rolls as tenant* Skidmore continued on the; rolla as tenant of the other landls.
Thel canal was completed and opened for public traffic early in 1797. From that
time until the commencement of tlhe appellants proceedings, the. respondent8 and
their assigns had had uninterrupted possession o f 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
customary heir.
Proclamations were then made i n the Manor C o u r 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: appellant, as Lord of the Manor of Rickmansworth, bhen issued a warrantl to the1 bailiff
t.o seize the land, and brought an action of ejectrmentlagainst 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 t o 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 C o u r t 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
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 w r i t olf pos8ewiorl, placed a
bar across thel canal, a n d 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 t h e
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

DIMES

I11 HeLeCm3
765

va.G.RAND JUNCTION CANAL

(PROPRIETORS OF)

[18523

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

1 L

.F

maf

The appellantl then. presented a petition o f rehearing, The cause wag set down
f o r rehearing beifore the late Lord Chancellor Cottenham, who, on the; 27th Jnnuary,
1848, after1 argument, and time taken to consider, affirnwd the decree of the. ViceChancel1o.r of England (17 Law Jourm., Ch. 206)b
Shortly sfter&k order, the dwxee-was carried in belfore the Master, together with
states of facts as to the c u s t o m of the1 manor, and the1 amount of the fine and feels t o
becornel due. on Skidniores admitltbance. The1 Master, o n the 9t.h July, 1850, reported
thatl the fine and femes payable on the admission of Skidmore would amoIuntl t o
$397 1 2 14d.,
~ and appointed a time and place: fori the payment thereof. The, appellant: failed to attend a t the time: and place appointed tol receive the fine and fees
thus ordered t o bel paid.
The appellant, as he allegpd, :had then discovered that. thel Lord Chancellor, Lord
Coltltlenham,was, and fori more than ten years had been, a holder, partly in his. own
and partly
a trustee for other peraona, of ninetyntwo4shares in the1 company ;
riwhti,
t
3
and thereforel, on the: 24th February, 1849, gave the respondents notlice: 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 tlhe Court
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 t w o judges of her Maje.st;ysICourts 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 t o refuse the1 motion witYh cuSt.s,
and, at.:the same timeJ wavel
b
his reamms at large for this advice, (13 Beav. 63).
The appellantl tihen gavel notices t o the. respondentis, and to bargemen navigatliw
e9
the partLof 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 nz3 ~
any other action o r actions orproceeldings atl law against the proprietors, o r any other
person o r persons, in relatbn to the1 copyhold premiseanmentioned in thel decree. O n
&e 3OOh May, 1849, the appellant gave1 a cromss-notIice
of motion t.01take. 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 h e appellants m o t r i m , and likewise. declined to
commitl the appedlant, buti granted the in j unction soughtvby tihe companysl motion
(17 S i n 38). This injunction :issued on t h e 5th June*, 1849.
On the: 30th November9 1849, the: alppeTlantplaced al [766] chain across the1 canal,
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 of the keeper of the Queens Prison till further1 order, for his contemptl in
disobeying the w r i t of injunction of the 6th July, 1839.
I n purauance of this. order, the usual warrant was? on the 11th Jnnuary, 1550,
made o u t by the1 officer of the Court, and signed by the then Lord Chancellor, authorizing t h e tipstaff of thheCourt to arr.est the appellant, and convey him to the Queens
Prison, there to remain till further order ; the tipstaff accordingly arrested the appellant, and conveyeld him to, the! Q.ueens Primn.
The appellant, OP the; 28th January, 1850, gave notice o f a motion to discharge
304
U

c.

-9

305

DIMES

IIZ H,L,c., 770

v+ GRAND JUNCTION CANAL (PROPRIETORS OF) [I 8 521

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 tonthe enrolment 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 t h e case. The int.ere:& of the
Lord Chamelllorin the company wa8 very considerable, and in his j u d p e n t + delivered
i n December, 1838, he stated t.hat if he. gave a judgment for the plaintiff, the. conipany 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
the Rolls (12 Beav. 77), however, putl the who10 case on the ground of expediency ; he
says t h a t there is no question aa to the validity and importance o f t.he general rule,
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 o f the Rolls himself pointed out (12 Beav. 78) a c o w s e that
might htwe been pursued, by which the. interference of the-LordChancellor w i t h 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?]
Certainly. The illustratli& given in t h e court below of officers of the -British
M u ~ e u mdoes not apply ;for, a8 such, they have no personal interest+ But in questions
relating t o 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 f o r t h e Pavzlrzg of Cheltediam,
(1 Q.B. Rep. 46T), though there t h s Coxnrniasioners were only rated torn
the: amount of
LL few shillings.
[T1-le Lord C~lancello.r.-Suppo,sea 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 tqosuppose a cam where he could have1 any meaaurablei interest. in
such a quelstion. But here the Lord Chancellor was a party to the wit, and had a
direct and a conaiderable intere& in t.lie result of it.
[Lord Brougham.-Suppose he had been a trustee alone?]
As such he would not have hrbd any intereat whatever. ThemMaster of the Roll8
a88umed tlhroughout his judgment [771] t h a t no intermt would disqualify a Judge
unless he w a s a part$ tu the record, That doctrine i s erroneous, and would lead to
abaurd and mischievoua consequencela, If it exist.&a g I to coiurts of equity, it must
exist as to courts of law+ What would be. the consequence of it t.here! Take the! case
of an action of ejectment which might be broughtl f o r the whole estate o f the Judge,
and vet he might. not bena 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 o f not being named,
t r y 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.ot h e
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 not4s 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 o f l a w o r of
reason c.an be citle.d in support o auch a doctrine.
Nor do the1 authorities, &her of text-booka o r of dwided caseHl, justify ita Some
of the text-books suggest the: very mode o f proceeding which ought to. have been
306
-

?7

..

.-

r,

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 i u d m e n t . o f the! Master of
Y

the Rolls.
In Mitford on Pleading, the jurisdiction of th.e Court of Chancery is spuken of
ala one o f the means of securing the. due administration of justice. It is said that
(p. 6. 4 edit.) a s u i t to tihenextraordinary 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
of the Great S e d , or t o the King himself in his Court of Chancerv, in c a w the persoh
holding t h e Seal is a party, o r Clhe seal is in the Kings hands; and various authoritiemaarel 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 J o h n 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 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 butl in such case where he is party, the suit shall be heard in the Chancery
c o r a m 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+ 11I),
The I i i n g v, Paspole (4 T. R, U),Great Charte.v. Kepalzimgton (2 Str. 1173), The King
v. Th.e Jugtices of Essex (5 Maulemand 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 t h a 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 iirzZnzu~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 o f which he was even
nomintllly the chief Judge. It was proved them that the Lord Mayor did not in
fact sit i n the court, but that t:he sittings were held before the Recorder ; butl because
he was c d e d the Judge of t h e court, it: was held that bia courtl had no. jurisdiction in
the case ; the. deputy could not a c t where; the principal waBl disqualified ; and that rule
i s as applica,bletnuthe 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 tmheheels 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 tnhelingtance. 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. 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 antitle! to a house
in Hereford, and in order to recover itl he! inlade: a lease o f it t o 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 judgrnentnf o r his lemw, and execution was sued there by hini; and upon complaint, o f this
~

L , -

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, tnhat-,
3
-pp 256, 257.)
307
t 8

-?J

I11 H L C ,

774

DIMES U GRAND JWNCTIONCANAL (PROPRIETORS OF)

11852j

matter in EL R* the, Court. herel granted an attachment, and committed the Mayor f o r
these proceedings. See! alsomtAhecaw of Foxhani Tithing (2 Salk. 607), where mi
order of Semionsr w.as*yua&edbecause. onel of the. justices wins$urveyor
of the highway,
and he joined in making tnheorder, and his name was put in thel caption).
[774] These: cas=, and the declaratlions made in thelm, havel met with the warm
approval of mme of the mostl distinguished foreign jurists. .Thus Mr. Chancellor
Kent, in his. Comrnentariw (Vol. i. p. 420) After &atlingtlha.tit)is a principle of the
English l a w that the will of the Legislature is- the: supremel law of the land, and
dernands proper obedience, hel says : B u t 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), that the common law doth control Acts of ParlitLmerit., 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 (Hobm87), 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 t h e
observation of Lord Coke was not extravagant-, but was a. very reasonable. and true
I
P

saying.
The principle. thus stated mu& themfore be considered t.o be fully established, and
its application cannot be doubted, But..should it.be s a i d tmhat
in Borne of the cases n o w
yuotbedthe decision appears to have ta.kelnplace 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 t o 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 ~ iwas to bel allowed. On an appeal, the magist\ratea atl Sessions
admitlted, by a majority of eleven. t o eight, certain evidence. which t4helrespondents
had objected t o ; tbhreeof tlhe eleven magistrates werel partners in a con-panyt o which
belonged premises assessed t o the. rate in the name of the occupier. The ratel was
quashed, b u t 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 t4hatthe rna@tratea
had acted partially,
the order o f 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 J u s t i c e s of
H e r t f o r d s h i r e (6 Q.B. Relpm753), where the Court distIinctly ref useid t o enter i n t o
the question as to t-he e x t e n t of influence exercised by the1 interested party. The
principle thus applicable in the;ca8e of a Judge, has been actendon by the Court of Exchequer in a civil case with regard to jurymen. In Esdaik v, Lurtd (12 Meemand FV*
734). the plaintiffs represented the London and We&rninat.er.Bank, and in tin action
broight on a j udgment [776] agrxinst t.he denfendantL3
the: Court of Exchequer cornpelled
the: plaintliffst o undertake tol &rike out of the list of special jurymen any w h o
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. It has like!wise been
acted on in Chancery. In Lord *iMostyn v. S p e n c e r (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 h e l publicat.ion
having passed, o r t>hedeath of t h e , witness, would notl prevent the supprelssion of t.be
depositions, That i s a very strong case; for under such circumstances thel elvidencel
given 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, if 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)

[18521

111 EL.C,, 777

Mr. St7unrtand Mr. Bethell, for thO relspolndents.-It. is aasumed on thel 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 smuch too far. It cannotr be pretended, that if Lord Cottenham had ceased to
hold the great Selal belforethe hearinm
w the fact of the bill being addressed
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 Chancellor, 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 tlhatqnullity, and tlhen t h i s appeal cannot
be sustained. But supposing tlheLord C h a n c e h - 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. The Trice-C11ancello r
is notl t h e 1mr0 deputy of t h e Lord Chancellor, but. :is, by virtue of themstathutel53 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 f o r which Rolle's Abridgment has b e n quoted (2 Roll. Abr.,
tit+'' Judges," 1l), that a mari cannot be a judge in hip, o w n 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 o r not on the record; but all the case&quotIed
are those of inferior jurisdictions, whence there was ELRappeal, or of Courts where
thexe were many melmbemrg
coniposing them, 80 tlhat it was not a rnatte.r of necelsaity
to remrt to t h e decision of t h e individual who niight happen ['778]to have an intereat
in the question discussed. B u 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 full consideration 0.f all the authorities. In The li'img v, The J.ustices of
Essex (5 M a d e and $. 513), this rule of necelssity was recognized and acted o n ; and
as corporatiou justices 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 vmThe CiQ/ oif' L ~ m h m(2 B r a P. C. 409. This is evident\ly a cont.iriuatiOn
of th0 case of tlhe C i t y of L o n d o n 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
given t o 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!artztinedwithout discussing whatl amount- of in.teire& is. sufficientlto disqualify a.
l sahisf actorlily s&led+ Taker an instlahnce+
j udge. Such a question could hardly k
The s d a r i e h so f the Judges are payable out!of the1 ConsolidatqedFund. Suppose a. very
lanrg.esum has long ren-mined in Co.nsola unclaimed by any one!>and $0 &uprieInting
tlhe funds of the country ; but suppose, aha, a n individual slhould alppear and clailxi
tlo have thatl g u m transferred to hirn+ould
any of the: Judges try his riglit tlhe
t
o
1

I3

Nor do in-

XrT XL+C+, 785

DIMES

v4 GRAND

JUNCTION CANAL (PROPRIETORS OF)

[I 8521

Was b i s a c a w 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. o w n caw82
'' A public company estnalbiishedf o r comtructing a canal waH incorpo.rated, and
boughtlsolme 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 aD~ a l i n s lthe
t p claimant, and to have their M e comnfirmedm
'' The TTiceChancellor, whose authority i s derived under 53 Geo.. 3, cap, 24, granted
a n injunction, and the relief p a v e d ; and the; Lord Chancellor, who had an interenst
as a shareholder in the cornpany tab4
the amount of se.veralthousand pounds, which was
unknown to t h e defendant, upon a n appeal by the defendant, affirmed t h e 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
Lord Ch a nc.ello r
I + '' JVelre the! orders of the TTice-Chancenllorvoid 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 trost at.ethe. 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 accountlof his intlere:st,but.
tmidable onlv.
If this h i d 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:ermted in the s u i t : whether a prohibition could go to the Courtl of Chancery, it ia unnecessary 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 f o m e r course was stlatledto be proper in the. c a w of B r o o k s 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 o f The Compurzg of M e r c e r s and 1mnm o n g e r s 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 Cobmpanyof Melrcem in the Mayork Court at
Chester, that alfterverdictl, 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 w a s rammeld in the Court of
Qua.rter Selwions, and t4hatjudgment of reversal affirmed in the King's Bench,
In neither of these case8 was. the judgment held t o be nbsollutdy void, T'iU prohibition 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
would notl be liable to bo treated as tlreispassel-sl.
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 asmmagistratm, 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 inconvenience i f it was, The objection might be one of which the partie;sl acting under
tlhelse ordersl niight be totally ionomnt!
4
7
till the moment of the trial of an. action of tsespass 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 V. Lorant, ante, p. 447); but thew orders. may be
quashed after being removed by cel-tiorari, and the Court ahall do complete ju8tic.e:in
tthaltlreispect..
We think that the order of the Chancellor is notlvoid ; but we are of opinioln,that
as he had such an inferelst. which w o d d h a m disqualified abwitness un&r tlhel old law
he was disqualified as a Judge; thatl i t w m al voidable! order, and mightlb qu&ioned
a.nd setl aside by alppeal o r some application to the1 Courtl of Chancery, if 8: p . 0 hibition would not lie312
d

DIMES

?I,

GRAND JUNCTION CANAL (PROPRIETORS OF)

(2) [I 8521

III H.L.c., 793

learned friend Lord Cranworth, who ia not no-w here, entertained, during the argument, 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, t h a t 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 Chancellor, from whom he only receives directions ~ E to
I what cages he shall entertain and
dispose of. That by the Act i s the only connection which subsists between the t w o
branches of the Court onfChancery, w i t h the e.xception o f the final enrolment., which
requires t h e previous signature of the Lord Chancellor; but, as plainly as+an enacb
ment can speak, the ViceXhancellor has a aubatantive and an independent jurisdiction 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 o f 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, t h a t there shall be no enrolment
of a decree, with the view [793] -to further proceedings, without the previous signature o f the Lord Chance.llor; but the! giving of t h a t signature cannot affect, the
validity of the Vice-Chancelloia decree. Therefore, my Lords, we have now in the
first place tobdeclare, 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 denalwith. 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 t o t h e 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 panrty7but applies to al cause in which he
has a n interest. Since I have had t h e honour otm 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, tooAka part in the decision.
And itl will have a most s.alutlalryinfluence! o n thhe&et-ribun-ahwhen it is known thah
tlhis high Courti o f last resort, in a. cnalselin which the h l r d Chancellor of England
had an. intersst, considered that his decree was on t h a t account a decree not according 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 t o [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? a g r e e

315