vate Bill was to repeal a most material | had sanctioned it as being for the public provision of a Public Act, introduced by interest. This being a private agreethe Board of Trade, for the protection ment between two parties it could only of the consumer. Under the Act there be dealt with by a Private Bill. He rewere clauses which provided for the re-gretted that it should have come up to vision of the price of gas as the increase their Lordships so late, but it had had of its consumption enabled it to be re- to pass through a Select Committee of duced; but it was now proposed by this the other House. He admitted the right Bill to substitute for those clauses a of their Lordships to deal with every line sliding scale by which they would divide of every Bill that was brought before between the consumer and the producer them, but he entreated the House to the advantage of the continually accru- consider whether in the position at which ing reduction of price. The Companies the question involved in the Bill had had their 10 per cent secured to them; arrived, it would be wise by adopting the that was all they were entitled by law clause of the noble Earl to leave the gas to obtain, and yet those who wished to consumers of London in such a position protect the just interests of the consumer as that they might be called upon to pay were now compared to Bashi-Bazouks. 58. per 1,000 feet for gas instead of a Under the Acts of both 1847 and 1860 maximum of 38. 9d. as provided by the the London Gas Companies had had ad- Bill. vantages conferred upon them which were not accorded to provincial gas companies, for they obtained a minimum as well as a maximum of 10 per cent, and if the present measure were passed they would be placed in a still better position, for they would obtain a share of the profit which ought to go to the benefit of the consumer. He objected to this partiality being shown towards them in a Bill which was promoted by a Government Department, and which was brought under the consideration of that House on the 27th of July, when their Lordships were told that if they made the slightest alteration in the Bill it could not pass into law during the present Session. He did not believe that the introduction of this clause would destroy the Bill; but he would rather it did, than see the Bill passed without the clause under such circumstances. THE LORD CHANCELLOR explained that, as the Bill embodied a compromise which had received the sanction of 8,000 shareholders, of the Corporation of the City of London, and of the Metropolitan Board of Works, as the representatives of the public interest, it would be impossible to materially alter the Bill without again submitting it to the consideration of the shareholders, and that was tantamount to throwing it over for the present Session. The Bill had been passed through a Select Committee of the House of Commons and had met with its approval. He denied that the measure was promoted by Her Majesty's Government, as was said, further than that the Board of Trade LORD CARLINGFORD felt compelled to assume that if the clause of his noble Friend (the Earl of Camperdown) was adopted there would be an end of the Bill for the present Session, and therefore the question, as it appeared to him, was, whether the fact that, under the Bill the shareholders in the Companies might now possibly obtain somewhat higher dividends and at some future time sell their properties for a larger sum than would be paid in other circumstances, that disadvantage to the consumer was not counterbalanced by the settlement that would be brought about by the provisions of the Bill. He thought, on the whole, that the advantages that would flow from the Bill were greater than the disadvantages that might be feared from it. EARL NELSON said, he was a Member of the Committee which had been alluded to, and the Bodies which had been appointed the legal protectors of the gas consumers made no objection to the proposals which had been embodied in the Bill under consideration. The public had received advantage from the amalgamation of Companies that had been made, and he therefore doubted the wisdom of interfering with the grounds on which the Companies were induced to amalgamate. THE EARL OF CAMPERDOWN, having said a few words in reply, On Question? The Committee divided: Contents 24; Not - Contents 27: Majority 3. Resolved in the Negative. Bill reported without Amendment, THE JUDICATURE ACTS-CAVE v. MACKENZIE. OBSERVATIONS. QUESTION. LORD SELBORNE rose to call attention to certain proceedings which were reported to have occurred at the recent Chelmsford Assizes, in a case of Cave v. Mackenzie, and to proceedings in the Chancery Division, in the High Court of Justice, and in the Court of Appeal in the same case. The noble and learned Lord said that as this subject had been much discussed in the public journals, he deemed it necessary to advert to it, and to put to his noble and learned Friend the Questions of which he had given Notice. It appeared that on the 18th of June last the Master of the Rolls directed certain issues of fact, arising out of the case of Cave v. Mackenzie, to be tried at the present Chelmsford Assizes. From the Law Reports in The Times he learnt that at those Assizes there were nine causes entered for trial before Baron Huddleston, one of them being the case of Cave v. Mackenzie. It appeared from The Times report that on the 17th of July "When the case was called on, his Lordship left the Court to consult the Lord Chief Justice of England as to whether, since the passing of the Judicature Act, the Master of the Rolls ought not to have tried the case himself. His Lordship returned into Court, and announced that, having consulted the Lord Chief Justice, he should decline to try the cause, and the parties must go back to the Master of the Rolls." If the matter had gone no further he should have assumed that there was some error in this Report. But, from the same channel of public information, it appeared that on the 19th of July the matter was brought before the Master of the Rolls on the same representation as to what had occurred at Chelmsford. The Master of the Rolls, after referring to Order 36, Rule 29, and the Judicature Act, 1873, sect. 29, declined to alter the order he had previously made, and in the execution of which considerable expense was said to have been already incurred; and he suggested that there should be an appeal from the order or decision of the Judge of Assize. In accordance with this suggestion an application was stated to have been made to the Lords Justices of Appeal, who thought they had no power as Judges of Appeal to deal with the matter, and who suggested that if any remedy existed at all it was to petition Parliament or to bring the matter before the Lord Chancellor or the Attorney General. Such being the state of things, he thought that it probably would not be unacceptable to the learned Judges, and that it would enable suitors to understand their rights in this respect, if he called their Lordships' attention to the matter. He would not go into the subject at any length as far as the law was concerned, but for his part he had understood that the general principal of the Judicature Acts was that all the Courts which had previously been divided should be brought together into one High Court of Justice, and that although for convenience in the distribution and transaction of business the Court was subdivided into certain Divisions, in which the old names were retained, yet all those Divisions had the like powers and the same jurisdiction. In particular, the 29th clause of the Act of 1873 provided that Her Majesty might assign to any Judge or Judges of the High Court of Justice the duty of trying at the Assize towns any questions or issues of law, or partly of fact and partly of law, in any cause or matter pending in the High Court of Justice. This applied to the Chancery Division as much as it did to any other Division of the Court. the other Divisions of the Court were in the daily practice of sending for trial at the Assizes or at the sittings in London or Middlesex all actions which were to be tried by juries, and he was at a loss to understand why the Chancery Division should not have the same power of sending issues to be tried in the same manner. It seemed that under the Judicature Act every Court and every Judge had ample power to direct a trial to be held at any particular place, and when any order had been so made for the trial of a cause at the Assizes, the Judge of Assize could not constitute himself a Judge of Appeal to decide upon the order which had been made, but was under a legal obligation to try the case in accordance with the order which had been made. He found in the Orders made for the execution of the Act of 1873 the following provisions: All named in the statement of claim, the place of "Section 1. That where no place of trial is trial shall, unless a Judge otherwise orders, be the country of Middlesex. Any order of a Court." "Section 12. Notice of trial elsewhere than in London or Middlesex shall be deemed to be for the first day of the then next Assizes at the place for which notice of trial is given." Judge as to such place of trial may be discharged | Lordships' notice, for it was one which or varied by a Divisional Court of the High had undoubtedly created a certain amount of uneasiness in the public mind, and especially among the suitors in the High Court of Justice. In replying to his noble and learned Friend, the best course which he could, he thought, pursue was to read to the House communications which he had received from both the Lord Chief Justice and from Baron Huddleston. The Lord Chief Justice had written to him as follows: There was also the 29th section of the same Orders, which said "In any cause, the Court or any Judge of the Division to which the cause is assigned may at any time, or from time to time, order the trial or determination of any questions or issue of fact, or partly of fact and partly of law, by any Commissioner or Commissioners appointed in pursuance of the 29th section of the Act, or at the sittings to be held in Middlesex or London, and such question or issue shall be tried and determined accordingly." He would only add that since he gave Notice of his intention to advert to this subject in their Lordships' House, some explanations had been publicly given by the learned Judges on the SouthEastern Circuit, by which it appeared that there was another reason alleged besides those stated in the report for the course which had been taken-namely, that the case would have occupied so much time that it would have been impossible to deal with it without postponing the other business of the Assizes, which would probably be under any circumstances a sufficient reason for making it a remanet. If that had been done, he should not, of course, have deemed it necessary to trouble their Lordships in the matter, and he would now conclude by asking his noble and learned Friend on the Woolsack, Whether it was true that Baron Huddleston refused to try certain issues directed by the Master of the Rolls to be tried at the Chelmsford Assizes, on the grounds that the Master of the Rolls ought to try them himself; and, if so, whether such refusal was in accordance with law; and whether the Court of Appeal had declared itself to be unable to grant any redress in this case; and, if so, how the administration of the law according to the Judicature Act of 1873, Section 29, and Order 36 of the Schedule to the Judicature Act, 1875 (Sections 1, 12, and 29), was to be enforced in favour of the suitors in the Chancery Division of the High Court of Justice? THE LORD CHANCELLOR said, he was not surprised, nor did he at all regret, that his noble and learned Friend had brought the subject under their VOL, CCXXX. [THIRD SERIES.] "South-Eastern Circuit, July 22. "Dear Lord Chancellor,-The postponement by Baron Huddleston, at the recent Chelmsford Assizes, of the trial of an issue sent down for trial by the Master of the Rolls having given rise to observations in the public papers, as so often happens on an imperfect apprehension of the facts, and Notice having been given of a the subject by Lord Selborne, I think it desirQuestion to be put in the House of Lords on able that you should be put in possession of the exact facts of the case. 66 Being desirous of remaining as long as possible to assist in doing the work of our Courts average run of business on the circuit, Baron in town, and not anticipating more than the Huddleston and I, the Judges of Assize on this circuit, had allowed only the usual time at the ford we found the business on the Civil Side different circuit towns. On arriving at Chelmsapparently much heavier than we had expected, and Baron Huddleston, who sat on the Civil Side, was informed that this issue, sent down by the Master of the Rolls for trial, would occupy fully three days; in other words, the whole time at the Assizes; so that if tried, as it stood early in the list, it would lead to all the other causes being made remanets. Baron Huddleston consulted me, and, as it did not appear that there had been any special ground for sending contrary, it might just as well have been tried this issue to be tried at Chelmsford, but, on the by a jury before the Master of the Rolls himself-indeed, we were informed that the Master of the Rolls had at first refused to order a trial had consented to grant a jury, but, declining to by jury, but, on being applied to a second time, try it himself, had said he should send it to Chelmsford-Í, under the circumstances, advised my learned Colleague not to let the trial of this issue displace and supersede the proper local business of the Assize, but to treat it as the last cause in the list, which was done accordingly. It so happened that, having finished the criminal business, I was fortunately able to come to the assistance of my brother Judge, and one or two of the causes, which threatened to be heavy, abled to finish the business of the Assize in time, having been unexpectedly settled, we were enwithout leaving any remanets. If the issue had been tried this would have been impossible. If any responsibility attaches to the course thus pursued I desire to share it, as my learned Colleague, though fully concurring in my view, acted under my advice. I am still, on the fullest consideration, of opinion that the course taken 3 R was, under the circumstances, the right one. I think it right to add that I further suggested to Baron Huddleston that we should take the first opportunity of your Lordship, as President of the High Court, calling its members together to bring the whole subject of issues sent from the Equity Division to the Common Law Divisions, or Circuits, to be tried by juries, under the consideration of the High Court, it being my very decided opinion that the course which the Equity Judges are understood to be pursuing, of sending all issues of fact calling for trial by a jury to be tried at Nisi Prius by a Judge of a Common Law Division, is altogether in excess of the power conferred by Order 19 of the Rules of Court, as well as contrary to the entire spirit of recent legislation in the matter of judi cature." He need not trouble their Lordships with the rest of the letter, in which the argument on that point was expanded. The letter of Baron Huddleston was as follows: : "The civil business at Chelmsford was unusually and unexpectedly heavy, and there were only two days and part of a third (the Commission day at Hertford) in which to do the whole of the work, both civil and criminal. While trying the first common jury, some application was made to me with reference to the special juries, and I was informed by the counsel engaged in Cave v. Mackenzie, which stood third in the list, that it had been sent to Chelmsford by the Master of the Rolls, who, though applied to, had refused to try it himself with a jury that it was a matter arising entirely in the Chancery Division of the High Court, and in no way connected with the county of Essex, and, if tried, would occupy at least three days. "I consulted with the Lord Chief Justice, and we came to the conclusion that I ought not to give it precedence over the other causes or try it at these Assizes, to the prejudice of the business legitimately belonging to the Essex cause-list. In announcing this to the Bar, I stated that the Lord Chief Justice and myself both thought that, considering the spirit of the Judicature Acts and the intention of the Legislature to fuse Law and Equity, as we in the Common Law Division of the High Court had to deal and did deal with all questions of Equity that came before us, the Equity Judges, having every facility afforded them to do so, might well try, with the assistance of a jury, any question of fact which arose before them, and not send it to the Assizes or the Courts of Common Law, already overwhelmed with the pressure of their own business. "I did not make the cause a remanet, as I might have done (it being impossible to try it within the compass of the time allotted to the Assizes), because I did not think it right by so doing to throw on any brother Judge who might go the Spring Circuit the duty of trying it. But the Lord Chief Justice and myself agreed that the opinion of the Judges of the High Court should be obtained on the subject at their first meeting. "If, in their judgment, the case ought to be tried by a Common Law Judge, I intend, if the The Lord Chancellor parties desire it and the Master of the Rolls will vary his order to that effect, to try it myself in London or Middlesex with a special jury, and thus spare the parties the delay till March, and save them the extra expense of taking it down again to Chelmsford." Now, those two letters stated very clearly what occurred at the Assizes, and were an answer to the first part of the Question. His noble and learned Friend then asked, whether the refusal to try the case was in accordance with the law? Now, that was a point on which he (the Lord Chancellor) desired to speak with all reserve; but, so far as was proper, he would remind their Lordships very briefly of what had been enacted by the Legislature on the subject. His noble and learned Friend had referred to the 29th section of the Judicature Act of 1873; but he had not read the following paragraph : by any other Commission, either general or "Her Majesty, by Commission of Assize, or special, may assign to any Judge or Judges of usually named in Commissions of Assize the the High Court of Justice or other persons duty of trying and determining within any place such Commission any causes or matters, or any or district specially fixed for that purpose by questions or issues of fact or of law, or partly of fact and partly of law, in any cause or matter depending in the said High Court, or the exercise of any civil or criminal jurisdiction capable of being exercised by the said High Court.” There was, no doubt, no exception there Court and another; but lower down ocdrawn between one Division of the High curred the following passage:— "Subject to any restrictions or conditions imposed by Rules of Court, and to the power of transfer, any party to any cause or matter involving the trial of a question or issue of fact, the leave of the Judge or Judges to whom or to or partly of fact and partly of law, may, with whose Division the cause or matter is assigned, require the question or issue to be tried and determined by a Commissioner or Commissioners as aforesaid, or at sittings to be held in Middlesex or London as hereinafter in this Act mentioned, and such question or issue shall be tried and determined accordingly." A further section-the 37th-provided that 66 'Subject to any arrangements which may be from time to time made by mutual agreement between the Judges of the said High Court, the sittings for trials by jury in London and Middlesex, and the sittings of the Judges of the said High Court under commissions of Assize, Oyer and Terminer, and gaol delivery shall be held by or before Judges of the Queen's Bench, Common Pleas, or Exchequer Division of the said High Court, provided that it shall be lawful for Her Majesty, if she shall think fit, to include in any such Commission any ordinary Judge of the Common Law Divisions, felt strongly the Court of Appeal or any Judge of the Chan- with regard to the point raised in this cery Division to be appointed after the commencement of this Act or any Serjeant-at-case-they thought that, while they Law." Then the 29th Rule of Court, which was part of the Act, was to this effect "In any cause the Court of a Judge of the Division to which the cause is assigned, may' and then came these remarkable words "at any time, or from time to time, order the trial and determination of any question or issue of fact or partly of fact and partly of law, by any Commissioner or Commissioners appointed in pursuance of the 29th section of the said Act, or at the sittings to be held in Middlesex or London, and such question or issue shall be tried and determined accordingly." Now, these were the provisions which bore on the point. They seemed to take a large and comprehensive view. The power given was like every other power subject to discretion, and it was better that he should say nothing on that point. But whatever might be the principle on which that discretion ought to be exercised, their Lordships would agree with him that once a case was sent down by a Judge who had the power to send it down to be tried at the Assizes, there ought not to be at the Assizes any investigation of the principle on which the case was sent down. The suitors, in order to go to trial, would be put to considerable expense-they had their witnesses ready and their counsel; and then, if the question was to be raised as to whether it was a discreet and proper thing to send the case down, the persons who would suffer by the raising of that question would be the suitors. LORD COLERIDGE was exceedingly glad that his noble and learned Friend had called attention to the matter, for it was one which concerned very much the interests of the public. In his opinion there should be a general understanding among the Judges as to the principles upon which the new law should be carried into effect. He absolutely agreed with the last observation of his noble and learned Friend on the Woolsack, that it was exceedingly inconvenient that when a case had been sent down for trial at Assizes any question should be raised as to the propriety of it having been sent down; but he also thought that it was exceedingly desirable that there should be a distinct understanding upon the matter. But he, and those with whom he was associated, the Judges of were willing to take their fair share of the business that arose, those of the other Division of the High Court must also take a fair share of the business. The Judges of the Equity Courts had now, as they always had, the power of sending a case for trial before a jury at any convenient place; but, as he understood, that was hardly the question here. There was no peculiar propriety in sending the case of Cave v. Mackenzie to be tried in Essex more than in Northumberland, or anywhere else; it did not belong to the county of Essex, nor had the jurors of that county any reason to expect that they would be troubled with it. As he understood, it was sent down to be tried at Assizes against the protest of both parties to the suit, the Master of the Rolls saying that he would not try the case before himself in the Rolls Court, for "he did not intend to try jury cases. He understood further that the jury box which had been erected in the Rolls Court had very recently been taken down, and therefore there were now no means of trying cases there before a jury. This was to his mind an attack upon the principles of the Judicature Act, and it was going back to principles which had been deliberately modified long before the Judicature Acts passed. There was an Act passed by Sir John Rolt and another by the noble Lord now upon the Woolsack in two Parliaments which enabled Equity Judges to try cases before juries; and it certainly was desirable that the Judge who had the case before him should dispose of the whole of it. It was not a little surprising, but he could not but feel that at any rate some of the Judges of the Chancery Division had gone away from the spirit of the Act. It was a surprise to the Judges of the other Divisionsthey felt that the Judges of the Chancery Division should do the whole of their work as the Judges of the other Divisions did theirs. There had been great misunderstanding upon the question of circuits, and of the rightness of circuit work; upon the small amount of work to do, and the number of Judges to do it. This was made a constant subject of observation. He had been surprised to find it stated that so far from the Judicature Act having worked well the Judges |