company of which he was a member. The question was thought so important that not only was it fully argued in Court, but it was referred to the whole of the English judges, who returned very elaborate opinions, in accordance with which Lord Cottenham's judgment was set aside. It is contended that the laws of England and Scotland are not the same upon this point. I think they are the same in regard to an objection like the present, where the judge is a shareholder of a litigant company. The laws of England and Scotland appear to me to be identical as regards this particular objection. Lord Mure, in concurring, said— On the second point I have come to the same conclusion as the Lord Ordinary. It is settled by the cases of the Aberdeen Bank, 22 D. 162, and of Blaikie's Trustee, 2 Macph. 595, that any one holding shares in a public company cannot competently act as judge in a cause in which that company is concerned. This is a fixed rule, I think, both in England and in Scotland, and must be applied here. Lord Shand said It appears to me that Mr. Lyon, as a shareholder, was really engaged in deciding a cause to which he was a party. It is not possible for us to weigh the extent of his interest in the company. The Court cannot affirm the proposition that if that interest be large he may not act, but if small he may. That might lead to numerous disputes, with no standard to which an appeal could be made as to what was or was not a sufficient interest to disqualify. I am of opinion that upon this ground the appointment of Mr. Lyon as oversman was bad, and cannot stand. Lord Adam agreed, and said As to the second point, it is of supreme importance that the administration of the law should be pure and unsuspect. Any temporary inconvenience which may arise from the fact that any one is disqualified by interest from acting as judge in a particular cause is a minor consideration. I think the circumstance that Mr. Lyon was a shareholder in the insurance company is conclusive. or The case of an oversman or arbiter is a fortiori of judges, because, if judges who are under the disability go wrong, they can be set right upon appeal. But one in the more responsible and delicate position of oversman sole arbiter is final, and no means exist for getting him set right should he go wrong except by a reduction of his award. The following two cases are those of judges who declined to sit owing to their being shareholders in one of the litigant companies. In Wauchope v. North British Railway, 17th December, 1863, 2 Macph. 326, Lord Deas so declined, and his declinature was sustained; while in Blaikie's Trustee v. The Scottish Widows' Fund Society, 1864, 2 M. 595, which was a whole Court case, no less than six judges declined because they were policy-holders in the defenders' company, which was a mutual one, and these declinatures were also sustained. In this case the Lord Justice Clerk Inglis remarked, "The ground of disqualification is of the most shadowy kind, and the real consequences, as exhibited in the present case, are so serious as urgently to demand a statutory remedy." These remarks doubtless led to the modification of the rule enacted by sec. 103 of the Court of Session Act, quoted infra. The next case we note is that of M'Dougall v. Laird & Sons, 16th March, 1894, 22 Rettie, p. 71, and is again the case of an arbiter. Here the sole arbiter was partner of a firm of auctioneers who were stake-holders between the Glasgow City Improvement Trustees and the pursuer, who alleged a claim against the auctioneers to the fund. The pursuer sued the firm. The details are immaterial; but on our present point of interest operating disqualification, Lord President Robertson was quite emphatic Mr. Laird, the partner, cannot dissociate himself from the action of the firm and claim to act as arbiter in the controversy in which his firm represent the trustees. I think it is impossible-his firm having elected to take up this position-that Mr. Laird can continue qualified to act as arbiter. He would be deciding in a question between his own firm and the pursuer. That appears to me to be a most difficult and improper position for any one to be placed in. But the ground of my judgment is that the position is one which the law does not allow, and that the firm of Messrs. Laird & Sons having identified itself with the City Improvement Trustees in defending this action, Mr. Laird is no longer qualified to act as arbiter under the reference clause. Lord Adam, in concurring, said— The pursuer pleads that James Laird has disqualified himself from acting as arbiter. Now, there is no doubt that James Laird is a partner of the firm of James Laird & Sons, and the proposition is that we are to refer a case in which James Laird & Sons are the defenders to the arbitration of a member of the defenders' own firm. This appears to me to be a perfectly hopeless proposition. Lord M'Laren also concurred, and Lord Kinnear concurred. The only other case which on the present point we shall notice was again the case of judges declining (the case of the Caledonian Railway Company v. Ramsay in the Court of Justiciary, Rettie, 24 J. 48). On the case being called, in absence of the respondent, Lord Adam and Lord Kinnear proponed a declinature on the ground that they were shareholders. in the Caledonian Railway Company. The declinatures were sustained; the Lord Justice-Clerk observing that "it was doubtful whether it would have been competent for the parties to waive the declinature by joint minute, according to the practice generally competent in the civil Courts." The modified relief from the disqualification given by the Court of Session Act of 1868 is in these terms. Sec. 103 says "It shall not be deemed a ground of declinature of jurisdiction that the judge (whether in the Court of Session or in any of the inferior Courts) is a partner in any joint-stock company carrying on as its sole or principal business the business of life and fire or life assurance, where such company is a party to the proceeding in which the judge is called to exercise his jurisdiction; and it shall not be deemed a ground of declinature of jurisdiction that any such judge is possessed, merely as a trustee, of any stock or shares in any incorporated company, where such company is a party to the proceeding." In all other respects the rule of law remains as it is herein before stated. These quotations from the opinions of many judges of eminence show that the disqualification is no trifling one, that it is absolute, both in the case of judges and arbiters, and that the extent of the interest, provided only it is personal and not merely official or fiduciary, is quite immaterial. Hence, it is a grievous mistake for any judge, much more for one in the more delicate position of a sole arbiter, being a shareholder in a litigant company before him, either to overlook the fact of his interest, or not to disclose it to the parties, so that they are thereby prevented from exercising their option of declining his jurisdiction or waiving the objection, and so validating an otherwise illegal position. Questions of importance might arise out of the party's privilege to waive the objection. We have seen that the Lord Justice-Clerk, in the case of Wildridge, expressed doubts as to the competence of parties to waive the declinature. It is difficult to see why individuals sui juris should not have the right at any time during the proceedings to waive and dispense with the objection, and, even after judgment given, why they could not adopt or homologate it. And in this matter of waiver we can see no difference in principle between the objection resting on the judge's relationship to one of the parties to the cause which has a statutory foundation, and the objection of personal interest in the cause "provided in nature itself," which is as securely founded on a series of decisions. In the case of Ommaney v. Smith, 13th February, 1851, 13 D. 678, where the Lord Ordinary was brother-in-law of the pursuer's mandatory, it was held by the First Division of the Court, after consulting the other judges, that the whole proceedings were ab initio a nullity. The rubric bears" All the interlocutors pronounced by and proceedings before a judge who is related to one of the parties in the case within the degrees mentioned in the statutes (1594, c. 12, and 1681, c. B.) are a nullity and effect must be given to the objection, although not stated till the case was put out for advising in the Inner House." That was seven years after the commencement of proceedings. But even if a private individual could, in the ordinary case, waive the objection and restore the regularity of the proceedings, does such a power of dispensation inhere to the office of trustees of public funds, against whom a judgment has been given in a submission by an arbiter disqualified by interest? and are private trustees accountable to minor beneficiaries in any better position? Ex hypothesi such judgment is illegal and a nullity, and is incapable of enforcement. Can public trustees, e.g., county councillors, who are liable to account and to be surcharged for illegal payments, voluntarily dispense with the illegality and implement an award given adverse to them by making payment? Again, could testamentary family trustees waive and adopt a judgment adverse to the trust estate given by an arbiter subject to the disqualification from interest, and implement the award? The books both in England and Scotland are replete with cases holding trustees personally liable for doing much less. Until, therefore, those questions are decided affirmatively it would be more prudent, in view of the Lord Justice-Clerk's doubts and the case of Ommaney v. Smith, for all such trustees not to risk the experiment. R. P. LAMOND. Literature. THE LAW OF WATER AND WATER RIGHTS IN SCOTLAND. By The question of the proper division of the subject-matter of law has exercised the minds of both philosophic jurists and practising lawyers, and, while the former class have proposed various deep-diving principles of division, the latter are content to treat as one subject all that appears to an ordinary mortal to hang together. Thus the Sheriff of Forfar is justified of his subject, for, though water may touch almost every branch of the law-sale, passage, nuisance, damages, public health—yet, from a practical point of view, the subject of water and waterrights presents sufficient unity to justify its treatment as a single entity. Mr. Ferguson, however, having chosen his subject, appears to have become obsessed with the idea of completeness, and has produced a work of 971 pages (not including the index). We cannot help thinking it would have been more valuable if it had been half its present size. In the first place, there is an appendix containing 400 pages of statutes. Surely any one who will use this book possesses or has access to a set of statutes. Further, the author is compelled, lest his appendix prove even more enormous, to select only certain sections of most of them, with the result that the practitioner will be compelled to pull down his set of statutes in any case to explore the other sections. The second appendix includes extracts from the Provisional Order Rules, which also, it appears to the reviewer, are better studied in their entirety. We have an The text displays the same characteristics. entire chapter on the seashore, including the question of the right to the coal under it, and a chapter on the shore as a boundary-both more suitable to a work on property in land. We find passages about salmon fishing, by net and coble, rod and line, which one would naturally look for in works on fishing. The author is also fond of scissoring long extracts from the opinions of judges (8 pages from Mortensen v. Peters), but, as they are not complete, they do not save the labour of referring to the authorities. Of course, this criticism touches a failing which leans to virtue's side. Completeness is eminently desirable in a law book, but compression no less so. The practitioner will certainly find in this work all the law or references to all the law on any question treated in it, and conflicting authorities examined carefully and clearly. Still, we think that all these merits might have been preserved, and the book rendered still more valuable to practising lawyers by judicious omission, selection, and compression. THE LAW OF BUILDING, ENGINEERING, AND SHIPBUILDING CONTRACTS, When a book has reached its third edition, that fact speaks for itself, and renders superfluous any commendation on the part of the reviewer. Generally also when a book has gone into several editions, it has reached the stage when all the errors and defects which it might be the duty of a reviewer to detect have been pointed out and corrected, unless changes have rendered extensive re-writing necessary in the new edition. Although since the second edition of Mr. Hudson's book appeared in 1895, the development of the law on the subject, especially that relating to the duties and liabilities of architects and engineers, has rendered many of the statements in the last edition obsolete or incomplete, the necessary re-writing and expansion have not materially altered this work. So far as we have observed, there is in the alterations and additions nothing to which exception can be taken. This edition, like the former, is a thoroughly practical work, such as one would expect from an author who was architect before he became lawyer, and who is at present a member of the tribunal of appeal under the London Buildings Acts, 1894 to 1905. The first volume consists of the commentary with an index, &c., and the second volume of reports of cases-a some |