granted, no trouble of the present sort would have arisen. Factors are regularly appointed in sequestrations on a temporary footing, and when once the trustee is elected the appointment falls subject, of course, to the liability of the factor to account for his actings and intromissions during the period of his tenure of the temporary office and almost in every case it happens that the interim factor becomes elected as trustee in the sequestration. However, the commissary factor is now, so far as the Accountant of Court is concerned, to be regarded as a permanent official, and, as such, subject to supervision.

A further point was laid before the Court for consideration, viz., whether a Sheriff or Sheriff-Substitute, acting as Commissary, can be regarded as one of the "Sheriffs or Sheriffs-Substitute in the several Sheriff Courts in Scotland" in terms of sec. 6 of the Judicial Factors Act, 1889, but on this point the Court had no doubt whatever, being of opinion that the abolition of Commissary Courts by the Sheriff Courts Act, 1876, allowed of no distinctions being drawn between the Sheriff and Commissary Courts. That being so, the appointment of a factor, even for the purpose of confirmation as executor, comes within the scope of the Judicial Factors Act, 1880, which allows Sheriffs to appoint factors on small estates which do not exceed in the yearly value of heritage and moveables one hundred pounds sterling. This does not seem to fit in with the possible case of a factor-executor having to administer an estate, to which he has been confirmed, which exceeds in value one hundred pounds yearly. If the estate which he administers exceeds that amount, then the 1880 Act does not permit of his being appointed by the Sheriff acting as commissary, and— reading sec. 4 of the Factors Act of 1880 along with the present decision-there can be little doubt that a Sheriff cannot now appoint a factor for confirmation or any other purposes when the estate is sufficiently large as to produce more than a hundred pounds per annum. Further, if subsequent to the Act of 1880, when power was given to the Sheriffs to appoint judicial factors on small estates, any appointments have been made. of commissary factors on estates which have yielded more than the statutory amount annually, it would appear that such appointments have been illegal and unwarranted by statute. It is worth noting, however, that in computing the value of an estate heritable property has to be taken into account, and as the administration of heritage, where it exists, does not fall within the province of the factor-executor, this suggests that his appointment is not made by virtue of the powers conferred on Sheriffs by the Judicial Factors Act of 1880, but that it must still be regarded as being by virtue of the practice

established long prior to the passing of that Act, particularly looking to the fact that the statute makes no specific reference to or provision for the appointment and control of such factors.

OF INTEREST AS A DISQUALIFICATION IN
JUDGES.

THE objection of interest in the cause on the part of a judge has long been held by the Courts to operate as a disqualification, not so much from any suspicion that judges would allow themselves to be influenced or show bias in a cause in which they themselves might have some interest or concern, direct or remote, but for the more general and wholesome reason that the purity of the law and the judicatories should be absolutely above suspicion. The rule is founded on plain common sense, is absolute both in Scotland and England, and may be said to be (subject to certain limited relaxations aftermentioned) of universal application. As Erskine says in B. i. tit. 11, sec. 25, “It is a rule provided in nature itself, that no man ought to be judge in his own cause." Nor does the disqualification apply only to the judges, superior and inferior, sitting in the ordinary law Courts; but private judges, called in to settle disputes as arbiters and oversman, also fall within its scope. Nor, again, does the fact that the interest may be merely nominal or trifling in amount make any difference, as where a judge or arbiter has only a small holding among thousands of shareholders with large holdings in a public company which is a party to the cause, whether it be an action in Court or a submission to arbiters: because it is not the extent of the interest, but the fact that the interest makes the judge "judge in his own cause," which constitutes the disqualification. The law rightly holds that it is not for the Courts, or indeed for any one, to dive into the recesses of men's minds to discover whether to any, or to what, extent they might, consciously or unconsciously, have had a leaning, or shown a preference, through having a greater or smaller interest in the cause they are deciding. As Erskine again expresses it, the rule "holds though the judge have only a partial interest in the cause, as, e.g., in a question relating to a copartnery when he is but one of several copartners." Yet, like all wholesome rules of municipal law designed for the protection of mankind, the rule yields where the general inconvenience outweighs a strict adherence to it. Thus, so early as the case of Douglas, Heron, & Co., in 1744 (a case where the objection rested on relationship to the parties' litigants), the judges refused the declinature of several of their number on account of their relationship to several partners of the bank, "because, if these declinatures

were sustained, a quorum would not remain sufficient to determine this cause or any other in which that company was concerned" (Act of Sederunt, 22nd July, 1774). Similarly, declinatures of several judges were repelled who were heritors in a burgh where the burgh was a party (Act of Sederunt, 22nd January, 1789). Again, where the interest is ratione officii merely, and not personal, the rule does not obtain (Blair, 26th January, 1814, F.C. Appx. to vol. 1814-15). Other examples of mere official or representative interest are, as to the Chancellor of a University (Sibbald's Trustees v. Greig, 1871, 9 M. 399); heritors in a parish in a question of liability for poor relief (Gray v. Fowlie, 9 D. 811, L.J.C. p. 813); Commissioners of Supply (Lord Advocate v. Commissioners of Supply of Edinburgh, 1861, 22 D. 933); and a police magistrate under the Burgh Police Act, 1890 (Wildridge v. Anderson, 26th March, 1897, Rettie, 25 J. p. 27).

The fact of a judge being a proprietor of stock in one of the Scottish chartered banks is not a ground of disqualification in cases where the bank is concerned (Act of Sederunt, 1st February, 1820; Anderson v. Bank of Scotland, 31st January, 1840, F.C. p. 547). But the Act of Sederunt is limited to the old chartered banks; and Sir Stafford Northcote's Bank Act— the Companies Act of 1879 (42 & 43 Vict. cap. 75)-does not extend the exemption conferred by the Act of Sederunt, so that it is limited to the three original chartered banks; and the disqualification appears still to be applicable to a judge who is an ordinary director of a bank (Bank of Scotland v. Ramsay, 1738, 5 Brown's Supp. 206). The matter of exemption is further regulated by the Court of Session Act, 1868, sec. 103, quoted infra largely in consequence of the judicial remarks to be afterwards noticed. It is perhaps just because all this is so plain and elementary that this fatal objection of interest (where it is undisclosed) is sometimes overlooked even by judges of the longest experience and most unblemished rectitude. It is for the reason that the objection of disqualification, on the ground of interest, may prove fatal, and render expensive proceedings wholly abortive, where it has not been timeously disclosed and formally waived, that we propose, by a reference to a few authorities, to make the general propositions above set forth absolutely clear.

The plea or objection to the judge being interested in the cause is generally to be found in the books under the title of declinature of judges. Thus, in two early cases (The Aberdeen Bank v. Scottish Equitable Insurance Company, 1859, 22 D. 162, and Blaikie's Trustee v. Scottish Widows' Fund, 1864, 2 Macph. 595) the declinatures were due to the fact that the

judges declining were members or partners of the society which was one of the litigant parties. One of the most instructive cases is that of Smith v. The Liverpool, London, and Globe Insurance Company, 15th July, 1877, 14 Rettie, 931. That was the case of arbiters, with power of appointment of an oversman. In this case it was held that the arbiters were not entitled to appoint as oversman a shareholder in a company which was one of the parties to the reference, and where the decree arbitral pronounced by the oversman was unanimously reduced by the First Division. The oversman's interest was the holding of capital stock in the company to the extent of £50, the value of which was £850, while the total stock of the company was £245,000, of a value very much greater.

It is because in this case the disqualification was fully discussed that we purpose to quote at greater length from the judges' opinions than we should otherwise feel justified in doing.

Lord Lee, Lord Ordinary, in the note to his interlocutor sustaining the objection to the oversman's award on the ground of interest, said

With regard to the other objection, my opinion is that it is also well founded. No doubt the interest of Mr. Lyon was extremely small; so small, that in no event could the arbitration affect him to the extent of more than a few shillings. But I cannot say that his interest was so remote or shadowy as to raise no duty of disclosure. I think that there was a duty of disclosure incumbent both upon him and upon the defenders. It cannot be said that it was immaterial whether that duty was discharged or not, for it is impossible now to say that the objection would have been waived. The question, therefore, is, whether it is a good ground for declinature that an oversman is a shareholder of the company which is concerned as one of the parties to the arbitration; and I think it is. Although it does not stand upon the same ground as the objection of relationship to one of the parties, which is statutory, it is clearly implied in recent enactments that at common law there is no answer to it (see Court of Session Act, 1868, sec. 103, and Act of Sederunt, 1st February, 1820). And there are many cases in which the objection has been given effect to (see Aberdeen Bank v. Scottish Equitable Insurance Company, 22 D. 162; Blaikie's Trustee Scottish Widows' Fund, 2 M. 595, in which six judges were allowed to decline).

V.

It was argued that the case of a judge of the Supreme Court is different, and that his declinature rests entirely upon privilege. I cannot assent to this view. I think that the right to decline arises out of the existence of a ground of objection. In so far as it can be called a privilege, it is possessed, even in a more unqualified way, by arbiters and oversmen. For a judge is under obligation to exercise his office, and cannot refuse to do his duty towards any of the public except upon a sufficient ground. The situation of an arbiter or oversman is not less delicate than that of a judge, and he can always decline. The only peculiarity in the case of a judge arises from the limited number. For it was held in two

cases that where the duty of deciding a cause could not be done if a declinature was sustained, it must be repelled (Douglas, Heron, & Company, 1774, Hailes' Decisions, 563; and Friendly Insurance Company, Elchies' Jurisdiction, 50).

It was contended that, even if these objections were well founded, they were not a sufficient ground for reducing the nomination and decreet-arbitral after so much procedure. I think that the case of Ommaney v. Smith, 13 D. 678, and the two cases in 5 Brown's Supplement there mentioned, are decisive against this contention. It cannot be said that in this case there was any delay in taking the objection.

Lord President Inglis confirmed this view in adhering to the Lord Ordinary's interlocutor reducing the award. said

He

But there is another objection of a different character, which is very formidable and, indeed, conclusive. It turns out that Mr. Lyon is a shareholder in the defenders' company. It is represented that this gave him a very small interest in the company-a point which I shall consider immediately. But I should like to say, in the first place, that no moral blame of any kind whatever attaches to Mr. Lyon in connection with the matter. He had altogether forgotten the fact of his being a shareholder when he accepted the position of oversman, and whenever it was brought to his recollection he at once communicated it to the arbiters. It is said further, that the interest which Mr. Lyon had in the company was so infinitesimally small that it is impossible that it could affect his judgment. It was argued to us that it could not be suggested that his mind could be corrupted for the few shillings difference which a decision in the company's favour would involve. To say this is, I think, wholly to misapprehend the case. In the position of oversman Mr. Lyon became judge in his own cause. No one is entitled to be that, and if he happens to act in such circumstances, then his judgment is bad. This is quite well settled. The cases of the Aberdeen Bank, 22 D. 162, and of Blaikie's Trustee, 2 Macph. 595, which are cited by the Lord Ordinary, are strong examples, and are precisely in point. The declinatures in these cases were due to the fact that the judges so declining were members or partners of the society which was one of the litigant parties. In practice I need hardly say that it has never been doubted that a judge should not sit in such circumstances. No judge has ever questioned the binding character of this disqualification. It can, of course, be obviated by a minute of parties. But this only confirms the view that the disqualification, supported by the decisions to which I have alluded, is in force, and that every-day practice is in conformity with them. I have had occasion to say that I regretted that these objections have not been removed by statute, and to some extent this has been done by the Court of Session Act of 1868, sec. 103. But this does not apply to the case of oversmen, and, accordingly, so far as regards them we are just where we were in the case of Blaikie's Trustee. I may add that a very important case occurred in the English Courts, where a judgment of Lord Cottenham was called in question (Dimes v. Grand Junction Canal Proprietors, 29th June, 1852, 3 Clarke, H.L. Cases, 759), on the ground that one of the litigants in the cause in which he was judging was a