The case of Lange v. Benedict, a report of which appears in the present issue, is interesting as a very recent re-examination of the law concerning judges and their liability for judicial acts. Lange had been convicted of an offence for which the punishment prescribed by statute was $200 fine or one year's imprisonment. The defendant, Judge Benedict, presid. ing at the court, sentenced him to both the fine and imprisonment. Lange paid the fine, and then applied by writ of habeas corpus for release from imprisonment. This was a perfectly reasonable and natural course, and it might seem that even the judge who had made the blunder could not find anything in it to object

to.

But the writ being returned before him while yet holding the term of the court at which the conviction was had, Judge Benedict set aside the former sentence, and re-sentenced the plaintiff to one year's imprisonment. The case was carried to the Supreme Court of the United States, by which the Judge's act was declared to have been without authority of law, and the release of Lange was ordered. By this time the latter seems to have become angry at the treatment to which he had been subjected, and he brought an action against the Judge, setting up the facts of the case, alleging that the act of the Judge was wilful and without authority, and claiming damages for false imprisonment. At the outset his pretensions appear to have met with some favor, for the defendant having demurred to the action, on the ground that he was not liable for the consequences of any act done by him as a judge of a court of general jurisdiction, the demurrer was overruled at Special Term. At the General Term, however, this judgment was reversed and the demurrer sustained, and the N. Y. Court of Appeals, by the judgment reported elsewhere, has affirmed this decision. A judge is, therefore, held to be absolved from the consequences of illegal acts, even wilfully done, and it will be seen by the authorities cited in the judgment that the doctrine is not new.

It will be noticed that the plaintiff did not allege malice on the part of the Judge. Such an allegation, however, under the ruling of the Court, would not prevent the declaration from being demurrable, and we can see no great difference in substance between an illegal act wilfully done, i. e., a wilful abuse of the powers of an illegal act done with the court, and malicious intent. Our contemporary the Albany Law Journal, remarks: "Perhaps such a rule is necessary to secure independence to the judiciary; but it would seem that a person injured by a gross abuse of judicial power, such as the act committed by defendant was, should not be remediless." This is true. Under our system, however, the remedy is clear. The terrors of a public impeachment are at the command of the oppressed, and are quite sufficient to make the most obstinate judge listen to reason. But happily the occasion for such a remedy will seldom arise, and certainly it is one which should not be adopted without grave

cause.

EVIDENCE OF EXPERTS AS TO
FOREIGN LAW.

English judges, in the more recent cases, have looked with some jealousy upon the evidence of experts upon questions of foreign law. One of the leading authorities on the subject is The Sussex Peerage case, 11 C. & F. 85, where the House of Lords permitted the late Cardinal Wiseman, as a Roman Catholic bishop and coadjutor to a vicar apostolic in this country, to give evidence as to the matrimonial law of Rome. Lord Langdale based his decision on this ground: "He is engaged in the performance of responsible public duties, and connected with them; and in order to discharge them properly he is bound to make himself acquainted with this subject of the law of marriage. That being so, his evidence is of the nature of that of a judge." In Van Donckt v. Thelluson, 8 C. B. 812, the Court of Common Pleas allowed the law of Belgium as to a promissory note payable in that country to be proved by a London hotel-keeper, who was a native of Belgium, and had formerly carried on business at Brussels as

quainted with the subject (though they have not filled any official appointment, such as judge, or advocate, or solicitor) be deemed competent to speak upon it? • All persons,

I think, who practice a business or profession which requires them to possess a certain knowledge of the matter in hand, are experts, so far as expertness is required." On the other hand, in Bristow v. Sequeville, 5 Ex. 275, the Court of Exchequer refused to allow the law of Prussia as to a question of stamp duty to be proved by a witness who had merely studied that law at the University of Leipsic. Mr. Baron Alderson inquired why, if the evidence were admissible, may not a Frenchman, who has read books relating to Chinese law, prove what the law of China is." This decision was followed not long ago by Sir James Hannen (In the Goods of Bonelli, 24 W. R. 255; L. R., 1 P. D. 69), who refused to decide a question of the testamentary law of Italy upon the affidavit of a gentleman who described himself as a "certified special pleader" and "familiar with Italian law," there being nothing to show that his familiarity with the Italian law was obtained otherwise than by studying it in this country. And the same judge gave a similar decision last week in Cartwright v. Cartwright and Anderson, an undefended divorce suit, the marriage between the parties having been celebrated at Montreal. In order to prove the validity of the marriage according to the law of Canada, the counsel for the petitioner called Mr. Bompas, Q.C., who deposed that he was familiar with Canadian law, having practiced for many years in Canadian appeals before the Judicial Committee of the Privy Council, which is the final Court of Appeal for the Dominion of Canada. Sir J. Hannen declined to admit Mr. Bompas' evidence or to hold that an English barrister by practicing before the Privy Council becomes an expert as to any system of law in respect of which the Privy Council may be the final Court of Appeal.-Solicitors' Journal.

LEASE, VOID OR VOIDABLE.-In Davenport v. The Queen, (London L.T., Feb. 9, 1878, p. 727), Held, That a clause in a lease declaring that it shall be void upon a breach of conditions by the lessee, means that it is voidable only at the option of the lessor, even if the condition was imposed by statute.

REPORTS AND NOTES OF CASES.

SUPERIOR COURT.

Montreal, June 28, 1878.
JOHNSON, J.

MASSÉ V. HOCHELAGA MUTUAL INSURANCE CO.
Insurance Policy-Condition- Waiver.

A condition in a policy of a mutual fire insurance company provided that in case any promissory note for the first payment on any deposit note should remain unpaid for 30 days after it was due, the policy should be void as to claims occurring before payment. Held, that the company, accepting a note for such first payment, but acknowledging receipt by the policy as for cash paid, waived the condition.

JOHNSON, J. This is an action to recover the amount of a loss by fire on the 15th August, 1877, under a policy of insurance for three years from the 10th March, upon an engine lathe in a building described in the policy. The plaintiff alleges the execution of the policy, the giving of his deposit note for $79.24, and the payment of the first assessment on it amounting to $11.89. Then he alleges the fire, and destruction of the thing insured, and notice of loss. The defendants plead, besides the general issue, two pleas. By the first, they set up the 19th condition of the policy, which provides that in case any promissory note for the first payment on any deposit note shall remain unpaid for thirty days after it is due, the policy shall be void as affects all claims for loss occurring during the time of such non-payment, subject, however, to revival after payment; that the plaintiff gave his deposit note for $79.24, as alleged, on which a first payment of $12.05 ought to have been made when the policy issued; but instead of paying that sum in money, the plaintiff gave his note at thirty days, which became due on 12th of April, and remained due at the time of the fire, which was on the 15th of August. Second, the defendants Set up the 12th condition of the policy, by which notice of fire and proof of loss are to be made within 30 days after a fire; and they also set up the Provincial Statute of Quebec, 40 Vic. c. 72, sec. 28, which provides for such notice and proofs of claim, and obliges the company within 30 days afterwards to ascertain and determine the amount of loss, and notify the claimant of their determination by a prepaid and registered letter, and makes the amount of loss payable in three months after the receipt

client has agreed to discontinue the case without costs -more particularly in a suit by a wife against her husband, when the settlement was obviously made by the defendant with the intention of depriving the attorney of his costs.

JOHNSON, J. By an agreement executed before notary between the parties to this case on the 30th November last, the plaintiff discontinued her action without costs. The defendant now comes before the Court and asks for acte of this discontinuance, and of his consent to its terms. There has been no notice to the plaintiff's attorneys of this arrangement, and they cannot be bound by it. Their right is to continue the proceedings for the recovery of their costs, and it was obviously for the purpose of defeating this right that the arrangement was made between the parties without notice to the attorneys. On the general question of the right of parties to transact to the prejudice of the attorneys of record, there is a most unsatisfactory conflict of decisions. I have gone through all the cases; but there is none that goes the length of saying that in a case where the defendant was certainly about to be condemned to pay costs, he can in a clandestine manner get the plaintiff (who is his own wife) to absolve him, and then apply that arrangement so as to oust the attorneys who had fought her battle. On the contrary, while the general question seems pretty evenly balanced in all these deci sions, there is a case that stands out from the others as authority that where there is anything exceptional in the defendant's motives, as there clearly was here, he cannot get the benefit of an outside arrangement of this kind to the injury of the attorney. It is the case of Richards v. Ritchie, 6 L.C R., p. 98, in the strongest way condemnatory of the defendant's conduct. The action there was actually dismissed because the plaintiff had been got to sign an admission that he had no ground of action, nevertheless the defendant was condemned to pay the costs. After all, costs are a matter of discretion with the Court, and on the whole, after reading the defendant's deposition, I can come to no other conclusion than to refuse his motion, and the other party asking costs, I grant acte of the discontinuance upon payment by defendant of the costs of the action.

Macmaster & Co. for plaintiff.
Judah & Co. for defendant.

RHEAUME V. CAILLE ET VIR. Obligation by Wife for Husband's Debt. Held, that an obligation made by a wife to repay money advanced for her husband's use is an absolute nullity, and even a representation by the wife to the lender, that the money was for herself, does not affect the case.

JOHNSON, J. The action is against a married woman, séparée, to recover $1,452.84, principal and interest of four obligations made by her,. Plaintiff. The plea is that the money was not with her husband's authority, in favor of the for her benefit, but solely and exclusively for

the benefit of her husband who is the Plaintiff's brother. It appears clearly that all this money was paid by the Plaintiff either to the Defendant's husband, or to his creditors directly or indirectly, part of it being devoted to pay a composition he had made with them. The defendant's obligation to repay this money is contrary to law, and this applies to the whole amount, and not merely to part, as was contended for the plaintiff. It was said that the that the money was for herself; but that is defendant had herself represented to the lender nothing: It is not an obligation naturelle ; but a fraude à la loi et à l'ordre public. See Marcadé, art. 1235, No. 670, vol. 4, p. 513. The well thorities cited in that case are directly in point. known case of Buckley & Brunelle, and the auThe action must, in my opinion, be dismissed. with costs.

Longpré & Co., for plaintiff.
Jetté & Co., for defendant.

CADIEUX V. CANADIAN MUTUAL FIRE Ins. Co.

Saisie-Arrêt-Concurrent Writs.

Held, that A., on a judgment against B., has a right to issue a saisie-arrêt in the hands of C., notwithstanding the fact that saisie-arrêts have been previously placed in the hands of B. by creditors of A.

JOHNSON, J. The plaintiff issued a writ of saisie-arrêt after judgment in the hands of Larin and some sixty others. The defendants come in and contest the right of the plaintiff to issue the writ; and they want to urge the transfer by the plaintiff to his brother of a part of the claim he had against the company. They also urge the issuing of three saisie-arrêts in their hands by creditors of the plaintiff. All this appears to me to have nothing to do with the plaintiff's right to issue his writ, and to

get the evidence of the garnishees as to whether they have anything in their hands belonging to the defendants. It may have something to do with the question as to whom the money is to go to when we find out whether there is any. The parties made no proof before me as to the identity of the plaintiff in this case with the debtor whose money was seized in the defendant's hands in the other cases, and as far as I can see, if the parties are the same as those mentioned in the papers filed, one of the saisies in the defendant's hands was discontinued and the declaration made in the two others was never contested, so that there would appear to be very little ground for contesting at all; but certainly nothing to prevent the is suing of the writ, or the garnishees' obedience to it.

Contestation dismissed with costs.
Longpré & Co. for plaintiff.
Lann & Co. for defendant.

LIABILITY OF JUDGE FOR ERRONEOUS SENTENCE TO IMPRISONMENT. NEW YORK COURT OF APPEALS, MARCH 19, 1878.

LANGE V. BENEDICT. Defendant was United States district judge, and plaintiff was tried at a Circuit Court held by him upon an indictment for embezzling mail bags. The jury found plaintiff guilty, aad that the value of the mail bags was less than $25. The penalty prescribed in such case was a fine of $200 or imprisonment for one year. Defendant, as judge, sentenced plaintiff to pay a fine of $200 and be imprisoned for one year. Plaintiff was imprisoned five days and he paid the sum of $200 to the clerk of the court as a fine, and the same was paid by the clerk to the government. Plaintiff procured a writ of habeas corpus which was returned before defendant, who was holding the same term of court at which plaintiff was sentenced. Defendant,

upon the return, vacated and set aside the sentence, and as a part of the same judicial act and order, passed judgment anew on plaintiff and re-sentenced him to be imprisoned for the term of one year, and plaintiff was imprisoned. Under proceeding taken by plaintiff for that purpose, to which defendant was not a party, the re-sentence of plaintiff was set aside by the Supreme Court of the United States as being without authority of law. In an action for imprisonment under the re-sentence, brought by plaintiff against

defendant, held, that the act of defendant was done by

him as a judge, and he was protected by his judicial character from the action brought by plaintiff.

FOLGER, J. The plaintiff has brought an action against the defendant for false imprisonment and detention in prison. He alleges that

it was wrongful and wilful, without just cause or provocation. He does not allege that it was malicious or corrupt. The complaint in the action sets out the facts in extenso, upon which the plaintiff relies. To this the defendant has demurred, stating three causes of demurrer; but the one cause relied upon is that the complaint does not state facts sufficient to constitute a cause of action. It is well, therefore, to state with some particularity the facts which are alleged, or are conceded.

In October, 1873, the defendant was judge of the District Court, for the United States, of the Eastern District of New York. As such, by virtue of an act of Congress, he presided at and held the Circuit Court of the United States for the Southern District of New York, for the October Term of that year.

The plaintiff was at that time arraigned upon an indictment of twelve counts, the general purport of which was that he had stolen, embezzled, or appropriated to his own use certain mail bags, the property of the United States, of the value of $25; he was tried upon the indictment; the verdict of the jury was, generally, that the plaintiff was guilty, and that the value of the mail bags was less than $25.

He was indicted under an act of Congress which declared the offence and affixed the punishment. By that act, if the value of the mail bags taken was found to be less than $25, the punishment for the offence was a fine of $200, or imprisonment for one year.

The defendant, sitting as such judge, and holding that court at that term, passed judgment upon the plaintiff and sentenced him to pay a fine of $200 and to be imprisoned for one year.

It is manifest that the punishment thus imposed was more than that affixed to the offence by the act of Congress.

The plaintiff paid to the clerk of the United States Circuit Court, intending it in full payment of the fine so imposed, the sum of $200. This was done on the 4th day of November, 1873, and during the same term of the court, and the clerk made certificate that that sum was then on deposit in the registry of that court.

The clerk paid the money into the office of the Assistant Treasurer of the United States in New York city, in that circuit, to the credit of the Treasurer of the United States, as the fine thus imposed.