from the defendant's attorney. As these questions had been put to the plaintiff's counsel, he asked questions about Herring, and at last the defendant was asked whether he would consent to allow Herring to appear for him, which, under the circumstances in the case, he consented to do. The judge again and again pressed that the defendant's wish should be agreed to, and that the matter should go to a reference; and, on one of these occasions, used the expression, Perhaps the plaintiff will find it better to agree to the defendant's proposition." It appeared, in fact, that it was the custom at the court for the clerk of the court to sit as arbitrator, and to receive fees for trying what the judge was appointed and paid to try.

Lord CAMPBELL, C.J.-We have no jurisdiction here over the judge, except on the ground that he has acted corruptly.

Carter said that corruption was not restricted to money influence, and that a man might act corruptly, though he did not receive money, if, in order to save himself trouble, he neglected to perform his duties. That had been settled so clearly, that where two men took their master's oats, and gave them to their master's horses, a conviction against them for the larceny of the oats had been maintained, on the ground that what they did, being done to give the horses a good coat, without their having the same trouble in cleaning them, was, in law, done lucri causa, and could sustain a charge of larceny. Lord CAMPBELL, C.J.-The most convenient way will be, that you should have a rule to show cause, so that the facts may be fully before us.

Rule to show cause.

Bovill now showed cause against the rule.-The charge was that of corrupt and oppressive conduct in the discharge of the duties of his office. A graver charge could hardly be made; but, in proceeding to show how unfounded it was, even so far as the affidavits were concerned, he must observe that one charge had been made in the speech of the learned counsel for the applicant which was not to be found in the affidavits of the applicant himself. He should, however, pass by this additional and unwarranted charge, and proceed to the others. The first of these was, that Mr. Amos had, by a series of adjournments of a case brought before him in the County Court, endeavoured to force the plaintiff into a reference. This general charge branched itself into several minor ones, but this was the chief. The plaintiff had brought an action for a balance of wages, and the case came before Mr. Amos on the 11th of January. The defence was a matter which involved many and complicated accounts. On the first day the defendant complained that he had no particulars of the demand. This proved to be the case, and, therefore, according to the settled practice of the court, the case was adjourned. No just complaint could be made as to that adjournment, for it was the fault of the plaintiff himself. The case came on again on the 14th of February, and the plaintiff then complained that, though he was willing and anxious to try the case, the judge again adjourned it: and he insinuated that this adjournment was made with the view of forcing him into agreeing to a reference, to which he was opposed. That, however, was not the fact. Mr. Amos's affidavit stated that on that occasion the defendant's attorney suggested that there should be a reference, as there were long accounts between the parties, who had been acting together on terms of great intimacy for a series of years, whereon the plaintiff's attorney expressed his concurrence in the proposal, as most conducive to the plaintiff's interests, but said that his client objected to the reference. A conversation between the parties followed, during which the business of the court was suspended, and then the deponent (Mr. Amos) suggested that there should be an adjournment of the cause, for the purpose of enabling the parties to consider

whether they could agree to any settlement. Mr. Amos distinctly declared that he did not hear, understand, or believe that any objection was then made. He was ready and willing to hear the cause, and would have heard the same but for this conversation, and he did not adjourn it for the purpose of forcing a reference, or for any other cause than as before mentioned. It was clear that it was adjourned with the assent of the plaintiff's attorney, a fact which was proved in the plaintiff's own affidavit, for there it was stated that, being dissatisfied with his attor ney for not resisting the adjournment, the plaintiff had dismissed him and retained another. The case then again came on upon the 14th of March, when the plaintiff, for the first time, attended with counsel, and the plaintiff complained that an attempt was again made to force a reference: he did not say by whom, but left it to be inferred that the attempt was made by the judge, which was wholly untrue. The reference spoken of was objected to, and the judge said that the plaintiff was entitled to have his cause tried if he insisted on it. The cause was begun, and it went on till a quarter past one o'clock, when the judge, in order to proceed with the causes of hundreds of working people, who were in waiting, and whose causes were capable of being decided in a very short time, and who, of course, complained of being needlessly kept waiting, again adjourned the cause. The cause was conducted in a very prolix manner, and, having occupied so much of the time of the court, the judge, for public reasons, was compelled to exercise the powers given him by the 81st section of the County Courts Act, and to adjourn it. There were at that time several witnesses to be examined, and besides them there was on the table of the court a file of books and papers, sixty-five weekly pay-sheets being among them, which the judge understood would be produced in evidence, and which could not be examined in any but a considerable space of time. The fact was that the defendant had been engaged largely in the building business, and the plaintiff was his confidential clerk, and the accounts between them spread over several years. Mr. Amos proposed, however, that the cause should be adjourned only from the 14th to the 17th of March, when he could devote his time to it, and could finish it, for on that day there were but three causes entered for trial, whereas on the 14th there were nearly 200. Under such circumstances, the judges of the Superior Courts had often adjourned causes of great length rather than keep the great body of suitors waiting and losing both time and money. It certainly was not for his personal convenience that he broke off the cause on the 14th, for on that day he sat till seven o'clock in the evening to dispose of his list. The question was not whether the judge was right in the exercise of his discretion, but whether he had corruptly exercised it, for that was the point which this applicant had to make. There was not a pretence for imputing corruption to him in what he had done; and, on a review of all the cir cumstances, this court would no doubt say that he had acted wisely and properly. Well, then, he proposed to adjourn the case to the 17th of March, but that proposal was objected to, because it was not convenient for the plaintiff's counsel then to attend. The judge yielded to this objection, and now was censured both_by the plaintiff and his counsel for having done so. The adjournment was finally fixed, as the plaintiff's counsel wished to go the circuit for the 9th of May. That was the real reason for that long adjournment, but the insinuation was now thrown in that it was for the pur pose of corruptly forcing a reference—an insinuation which every fact in the case contradicted. The case was again in court on the 9th of May. Counsel again appeared for the plaintiff, but the defendant's attorney took an objection, under the 91st section of the act, that counsel was not instructed by an attorney. Mr. Amos

heard the objection, and required some proof that the counsel was so instructed. The plaintiff's attorney was not present, and Mr. Amos offered to adjourn the cause to enable him to appear, but added that if it should turn out that there was an attorney who had instructed counsel he would make the defendant pay all the costs of the adjournment. Nothing could be fairer than that. He did adjourn the case accordingly, and then the plaintiff's counsel handed up to the judge a written application, which was now lost, for a subpoena to compel his own attorney to appear. What was the meaning of thatPATTESON, J.-That objection about the instructions to counsel had been taken before on the 14th of March, when Mr. Carter said that he was instructed, and the cause went on. The doubt was not whether he had been duly instructed, but whether the person who had instructed him was really an attorney-whether, in fact, he had not been imposed on.

Porill said that might be so, but at all events the objection was taken, and Mr. Amos's affidavit showed what had happened upon it. Mr. Amos, finding what sort of disputes arose, and how long this case was likely to occupy the time of the court, offered to sit half-anhour earlier to hear it. When the parties came before him on the 10th of May, and the question of the instructions was renewed, he questioned the attorney as to preparing the brief, and was answered that the attorney had not prepared it, and he was not satisfied that the attorney knew the contents of it. Then the plaintiff's counsel objected to Mr. Herring acting as the defendant's attorney, and it appeared that Fisher was the defendant's attorney, and as he was to be called as a witness, he had instructed Herring, on which the judge asked the defendant whether he was willing Herring should appear as his attorney, and the defendant said he was, and the cause was then ordered to proceed.

Lord CAMPBELL, C. J.-What progress had been made in the cause on the 14th of March?

Bovill, answered, to the end of the plaintiff's case, and through the examination of the defendant, on his own case. The parties did not attend on May 10 at the halfhour earlier than the usual sitting of the court, otherwise the case might have been got through, and when they did attend the judge was compelled again to adjourn it to the 10th of June. In the meantime the present application was made to this court. The only other charge against Mr. Amos was, that on the 10th of May he required the parties again to go through the case, on the ground that he did not recollect the circumstances, and it was charged as an offence in him that he did not take notes of the case, and an observation of his, that he knew what use would be made of his notes, had been referred to. The meaning of that observation was not that which had been attributed to it, but that the judge desired the parties, if they intended criminal proceedings against each other, to employ persons to take notes for them, for that he objected to have his notes called for to sustain a prosecution for perjury. And there was no judge whatever who would not feel the force of this objection, for none ever took such verbally accurate notes as to make him feel justified in swearing to the particular expressions of a witness through a long examination and cross-examination. He had now gone through all the charges. He thought they were all completely answered, and that the court would feel that Mr. Amos had most unjustly been subjected to the pain of this complaint being made against him, and that the rule ought to be discharged.

Carter, in support of the rule, said that much stress had been laid on the point of the counsel for the plaintiff; but he could assure the court, that in what he had done in this case he had been actuated by no personal feelings against Mr. Amos; for, though he thought Mr. Amos had needlessly listened to the objection about the

sufficiency of the instructions, he was willing at once to say that he had no complaint whatever to make of Mr. Amos's treatment of himself personally. He might here mention, that Mr. Amos was wholly mistaken in his assertion that an application had been made by the plaintiff's counsel for a subpæna to compel the attendance of the plaintiff's attorney. The paper was nothing more than a request to know whether Mr. Amos thought that, in order to secure his attendance, as there was no legal necessity for him to attend, he should be served with a subpoena as a witness. As to the other parts of the case, it appeared to him that the complaint was not answered. The case ought not to have been adjourned when it was part heard. The pile of books and papers had in reality nothing to do with the case-they were not called for by the plaintiff, and they were not used by the defendant. The case had proceeded so far that it might easily have been finished, and the adjournment was a needless, a wrongful, and a vexatious proceeding. It was entirely an unfit thing to press for a reference in such a case, where the demand was a simple demand for eight weeks' wages, and for the price of two maps, and where there was no notice of set-off, and consequently where no cross demand could be taken into consideration. The judge might easily have determined the case, and was bound to do so. But he allowed all kinds of objections when raised by the defendant's attorney; and there could be no doubt that in these courts there was a kind of understanding between the judges and the attorneys, or at least such of them as, sitting constantly in the court, were ready to conform in all things to the judge's. opinions, and to flatter his pride and self-esteem. The objection about the instructions was made, and appeared to have been disposed of, yet it was allowed to be renewed, and then proof of counsel having received instructions was required with as much strictness as if it was a fact in the cause itself. On the other hand, every facility was afforded to the person who appeared as the attorney for the defendant, though it was proved that he was not the defendant's attorney, but was an attorney who was practising in the court as a barrister, and receiving instructions from other attorneys.

PATTESON, J.-The case here was that the defendant's real attorney was to be a witness; but in ordinary cases one attorney cannot lawfully instruct another attorney to appear for him.

Carter. It certainly behoved this court to watch such proceedings with jealousy. These attorneys who thus practised in the County Courts, were not the most unexceptionable characters in the profession. Respectable attorneys would not attend these courts if they could avoid doing so, and when, in obedience to the wishes of a

particular client, they did so, they conducted the particular case in which they were engaged, and then left court. The judge was said to have exercised his discretion on these matters of adjournment; but discretion did not mean tyranny, but judgment applied according to just and well-known rules. And what was the consequence of a practice of the judge in not taking notes? It was this, that the case was all heard over again, and the time which had been at first employed upon it was thoroughly wasted. The learned counsel went through the other parts of the case, and contended that the judge of the County Court had vexatiously imposed great expense and trouble on the plaintiff; that corruption might exist quite independently of pecuniary advantage; and that the judge here had shown such a readiness to consult his own ease, at the cost of the suitor, as to justify this application against him.

Lord CAMPBELL, C. J.-This is an application for a criminal information against Mr. Amos, the judge of the Marylebone County Court, on the ground of corruption in the discharge of his duties. It is only on the ground of corruption that we have any criminal jurisdiction; and

if it had been established that he had been guilty of corruption in his office, this would undoubtedly be the proper tribunal to which the application should be made, and the only tribunal to put the case in a proper form of inquiry, so that the guilty party might be punished. There is no doubt that there may be corruption without a bribe, and there may be a misdemeanor committed by a judge, though he does not act with premeditated malice towards an individual, and though he does not seek a pecuniary advantage. If he does that which is wrong with a bad motive, he is guilty of corruption. But we must consider first whether he has done what is wrong, and secondly, did he do so malo animo. In this case it is not made out to my satisfaction that he did what was wrong, and I am clearly of opinion that in whatever he did he was free from all bad motive. The charge against him is, that he, with a view of escaping from the personal trouble of trying the cause as a judge, oppressively used his power, by postponing the cause from time to time, to endeavour to force the parties to a reference. Let us see how this charge is substantiated by the facts. The case comes on first before Mr. Amos on the 11th of January. On that occasion he most properly adjourned the hearing of the cause, because the particulars were clearly defecive. The defendant had not been fully informed of what was the nature of the demand against him, nor had he been put in a state to meet it. The particulars were merely in these words, "Balance of eight weeks' wages, 147. 17s., maps 37., making together 171. 17s." These particulars were without dates, and did not furnish to the defendant any information by which he might be able to meet the claim on him. The judge, therefore, most properly yielded to this application for further particulars, and on that ground adjourned the case. On the 14th of February the case again came before the court, when it was suggested that this case, from the nature of it, might be fit for a reference, for not only would it lead into long matters of account, but might be followed by cross-demands and fresh actions. I differ from the learned gentleman who has just addressed us in thinking that it was necessarily a fit thing to discourage a proposal for a reference, because there had not been a notice of a set-of. If there had been such a notice, and the judge could have settled the whole demand, it was his duty to do so. And in such matters the judge of the County Court has an advantage over a judge who sits in the Superior Courts with a jury, for complicated accounts cannot be taken by a judge with a jury; but the County Court judge may by himself, with patient investigation, come to a right conclusion. But it was not in the power of Mr. Amos to do so in this case, for there was no notice of set-off before him. It might therefore have been for the advantage of the plaintiff, as well as for that of the defendant, that there should be a reference by which an end might be put to all litigation; for though the plaintiff might obtain a victory for his 177. 17s., what would that avail him if he was afterwards liable to a cross action for that, or even a larger amount, which would make him refund what he had got with costs? It was therefore no breach of duty on the part of the judge not only to express his approbation of a reference, but to encourage the suggestion of one. He did not insist on it as a judge by merely giving his sanction and approbation to the suggestion. Then the adjournment took place on the 14th of February, with the entire approbation of the plaintiff's attorney, the attorney who then represented him, and who then said that the case was a fit case for a reference. We now come to the 14th of March, when the case was again called on, and when Mr. Carter appeared as counsel. On that day the case began and lasted several hours, and at one o'clock, the case being expected still to last a long time, the judge, in the exercise of his discretion, thought it would be fit, with a view to the interests of the other suitors of the court, that it should again be adjourned,

there being a great many other cases standing for trial and a great many parties and witnesses in attendance. I must express my regret that more frequent meetings of the County Court should not be held, if more frequent meetings are necessary. It only meets once a month, but I cannot say, for I am not in a condition to judge, whether another practice might not be more reasonable; it is not in my province to say anything on the subject. I may, however, observe that if fewer cases were appointed for one day, one that was very long might more certainly be disposed of. But nothing has been put before me to show that there was any breach of duty in respect of anything done in this case on the 14th of March, for, when one o'clock arrived, and it was likely that the case would still last a long time, it was reasonable that the judge should exercise the power given him by the 81st section of the first County Court Act, which enables him to adjourn any court, or the further hearing of any cause in the court, in such manner as to him (the judge) may seem fit. He has by the statute the most ample discretion to adjourn the hearing, or the further hearing of a cause, a provision which seems to contemplate any case between its commencement and its final judgment. Then what did the judge do? This was on the Friday: he said, he would hear it on Monday-that that Monday he would dedicate to the hearing of this cause. Why did he not hear it on that day? Because Mr. Carter was gone on the western circuit, and it was not convenient for him then to attend. I do not say that there is any blame to be attached to Mr. Carter for wishing at that time for a longer adjournment; but I do think that it is rather too much, after the delay granted to a learned gentleman of the bar, that that learned gentleman should taunt the judge with the delay, and with having, by that delay, forgotten what was due to justice. Well, then, the judge was willing to adjourn the cause from the Friday to the Monday. It was not so adjourned, for it would have been inconvenient to the plaintiff's counsel, but it was adjourned to the 9th of May. There was nothing wrong in all this. Then we come to the 9th of May. On that day Mr. Carter appeared as counsel for the plaintiff. It was objected by the defendant's counsel that Mr. Carter was not instructed in the cause by an attorney. The question, whether he was so instructed required to be decided. The Legislature wisely requires that no barrister should appear in such a court, without being instructed by an attorney; for, without that, I think that the order to which I belong, and to which I am most affectionately attached, would lose much of its dignity and usefulness. At the same time, I entirely concur with what fell from my brother Patteson, that, for an attorney to practise in those courts as an advocate, and to take briefs from other attorneys, is wholly contrary to law, and such a practice ought not to be allowed. Well, then, what was done on the 9th of May? Mr. Amos swears, and what he states seems to be most highly probable, that, the objection being made, he required evidence of Mr. Carter being instructed, and that, this evidence not being satisfactory, he adjourned the case, that fresh evidence might be produced. I do not know whether this was ever done before, but I think that this, was the right course. Now, then, we come to the 10th of May. On that day the hearing of the case was resumed. The judge had agreed to sit half an hour earlier to take it, but the parties did not appear. The case was called on, and proceeded till one o'clock; there was then a prospect of its lasting many hours-it is so sworn in the affidavits, and such appears to have been the probability of the case. There were many witnesses and parties, and the cases which then stood in the paper required to be disposed of. Many of these were not such as are tried at Nisi Prius, but were mere demands without dispute as to amount, and in which time of payment only was to be settled. It was most desirable that these should be dis

posed of, and Mr. Amos did that which cannot be complained of, when he said he would not go on with this case, but, having first disposed of the others, would sit till night to hear this. Then it was stated that it was inconvenient to keep counsel waiting. He offered to put off the hearing to a fixed hour; but the plaintiff's counsel declined that offer, and said he could not attend that night. The blame of that delay is not owing to Mr. Amos. There was another ground on which this rule was applied for-that, being requested to take down the evidence, he declined to do so. That has been fully explained. He took what was material, but he wished to guard against its being supposed that he took down the evidence in such a way that it could be used in an indictment for perjury; he wished to discourage a proceeding which is highly reprehensible-that of summoning a judge to prove a case of that sort. On these grounds are we to grant this criminal information? I think we are not. Mr. Amos says that he was ready and willing to try this case at such times as were consistent with a just regard to the rights and interests of the other suitors of the court, and that no judgment was made by him for the purpose of relieving him from the trouble of hearing and disposing of the case, or for that of compelling the plaintiff to agree to a reference, or from any improper motive whatever, but solely for the benefit of the suitors of the court, and for the proper discharge of the public trust reposed in him. Having attentively and carefully listened to what has been sworn on both sides, I think that what Mr. Amos has thus declared is true. I have no reason to suppose that he wished to get rid of the trouble of hearing the cause, and I think that the complaint is answered, and that the rule must be discharged, and with costs.

PATTESON, J., entirely agreed with Lord Campbell. It was not necessary for him to go into the particulars of the case. There was no pretence whatever for this charge -none for saying that the judge had done wrong-certainly none for saying that he had acted with a wrong motive.

COLERIDGE, J.-I am of the same opinion, and think that it is hardly necessary for me to do more than declare my concurrence. Yet, at the same time, from the importance of the case, and, I am glad to say, from the rareness of these complaints, it may be proper that each member of the court should state the reasons for his opinions. The substance of the charge is that Mr. Amos, being a judge, and being desirous of getting rid of a long cause, and to avoid the trouble and irksomeness of trying it, adjourned it improperly and oppressively, because the plaintiff refused to accede to suggestions of a reference; and, in addition, that he was guilty of ill-treatment of the counsel of the plaintiff, and showed undue favour to the defendant, whose attorney was willing to refer. If that charge was made out, or if the denial of it was imperfect and unsatisfactory, that would justify calling on this court for a grave interference. It appears to me that it has entirely failed-failed substantially as to any misconduct, or any undue or unwise exercise of discretion; and not only has it substantially failed, but it has wholly, entirely, and without a shadow of exception, failed. It is probable that the judge was desirous that the case should go to a reference, and this might be most honestly and wisely his wish, in order to prevent future litigation. I use the word "substantially" when speaking of the conduct of Mr. Amos with regard to the case itself, but I have some doubt whether he did behave with exact equity in the manner in which he dealt with the question of the retainer of the counsel for the plaintiff, and of the attorney who appeared for another attorney, who was attorney for the defendant. But, though I do express this doubt, yet a great deal of explanation of the matter has been offered, and I believe that he acted as an honest and discreet judge would do. I speak now

only of my impressions, but my mind might be open to a different conclusion if I knew all the circumstances, all the collateral matters, more fully than the affidavits enable me to know them. There are other matters which have been urged with a great deal of force by Mr. Carter, but on the whole I am clearly of opinion that there is not the slightest foundation for the charge of want of integrity which has been brought against Mr. Amos. Mr. Justice ERLE concurred. Rule discharged, with costs.

June 5, 1851.

COGLAN v. DIXON and OTHERS.-Hawkins moved for a rule to show cause why the plaintiff should not have his costs, notwithstanding the 13 & 14 Vict. c. 61, s. 11, upon affidavits tending to show that none of the defendants resided, or carried on business, within the jurisdiction of the County Court in which the cause of action arose. The court, however, said, that at all events this was not a case in which they would exercise the discretion given to them by s. 13 in favour of the plaintiff. Rule refused.

COURT OF COMMON BENCH.

May 13, 1851.

CHARLWOOD v. ELLIOTT.

County Court-9 & 10 Viet. c. 95, ss. 128 & 129-
Practice-Ruling suggestion.

An affidavit for a suggestion to deprive a plaintiff of
costs under sections 128 & 129 of the County Courts
Act, 9 & 10 Vict. c. 95, stated "that the plaintiff at
the time dwelt, resided, and carried on his business at
T., in the county of Middlesex, and within the jurisdic-
tion of the County Court of Middlesex, and that during
the period within which the goods were sold, and before
the commencement of the suit, the defendant dwelt and
carried on his business at B. in the county of Middlesex,
and within the jurisdiction of the County Court of
Middlesex; and that at the time of the commencement
of the action, the defendant dwelt and carried on
business within the Brompton district of the County
Court of Middlesex, and that the greater part of the
goods were sold and delivered to him at his dwelling-
house, within the Brompton district of the County
Held, sufficient to entitle the defendant to a suggestion to
Court of Middlesex."
deprive the plaintiff of costs.

This was an action of debt for goods sold and delivered, commenced on the 28th June, 1850, and tried before the Secondary of the city of London, on the 25th April, 1851: verdict for the plaintiff for the full sum claimed, 81. 3s. 4d. Judgment was signed the next day, and Maule, J., ordered stay of proceedings for one week, in order that defendant might apply for a suggestion.

T. Jones, on a former day, obtained a rule calling on the plaintiff to show cause why the judgment should not be set aside, and why the Roll should not be carried in and a suggestion entered thereon to deprive the plaintiff of his costs. The affidavit of the defendant, on which the rule nisi was obtained, stated, "That the Secondary of the city of London, being the judge who tried the action, had not certified that it was fit to be brought in that court; that the plaintiff is a seedsman, and at the time of the sale of the goods, and the time of the commencement of the action, dwelt, resided, and carried on his business, and still does dwell, reside, and carry on his business, at No. 14, Tavistock-row, Covent Garden, in the county of Middlesex, and within the jurisdiction of the County Court of Middlesex; and that during the period within which the said goods were sold, and at the time of the commencement of the suit, the said