tkWM IMAGE EVALUATION TEST TARGET (MT-S) /. ^ .#. 1.0 I.! 11.25 1^128 |Z5 ■^ Uii 122 2.0 us Itt IM 1^ U IIIII16 ^ y OZ '^.^p ^'J* '4 ^14^ Photographic Sciences Corporation 23 WEST MAIN STRKT WEBSTER, N.Y. M5S0 (716) 872-4S03 mk CIHM/ICMH Microfiche Series. CIHM/iCIVIH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproducti&ns historiques Tschntcal and Bibliographic Notaa/Notaa tachniqu«M at bibliographiquas Tha Instituta has attamptad to obtain tha baat original copy availabia for filming. Faaturaa of tfiia copy which may ba bibliographically uniqua. which may altar any of tha imagas in tha raproduction, or which may significantly changa tha usual mathod of filming, ara chackad balow. □ Colourad covara/ Csuvartura da coulaur r~| Covars damagad/ D D D D Couvartura andommagte Covars rastorad and/or laminatad/ Couvartura rastaurte at/ou palllculte I I Covar titia missing/ La titra da couvartura manqua Colourad mapa/ Cartaa giographiquaa an coulaur Colourad ink (i.a. othar than blua or black)/ Encra da coulaur (i.a. autra qua blaua ou noira) I I Colourad plataa and/or illuatrations/ D Planchaa at/ou iilustrationa tx coulaur Bound with othar matarial/ Ralii avac d'autras documants Tight binding may cauaa shadows or distortion along :ntorior margin/ La r9 liura sarria paut cauaar dc I'ombra ou da la distortion la long da la marga intArieura Blank laavas addad during rastoration may appaar within tha ttxt. Whanavar possibia, thasa hava baan omittad from filming/ II sa paut qua cartainas pagas blanchas ajoutias lors d'una rostauration apparaissant dana la taxta, mais. lorsqua cala Atait possibia, cas pagaa n'ont pas itA filmias. Additional commants:/ Commentairas supplAmantairas; L'Instltut a microfilm* la maillaur axampiaira qu'il lui a it* possibia da sa procurar. Las details da cat axamplaira qui sont paut-*tra uniquas du point da vua bibliographiqua, qui pauvant modifier una imaga raproduita, ou qui pauvant axigar una i;. "Edification dans la mAthoda normala da filmaga sont indiqute ci-dassous. |~~| Colourad pagaa/ Pagaa da coulaur Pagaa damagad/ Pagas andommagiaa Pagas rastorad and/oi Pagaa rastaurias at/ou palliculias P^gaa discolourad. stainad or foxa< Pagas dicoiorias, tachatias ou piquies Pagas datachad/ Pagaa d*tach*as Showthrough/ Transparanca Quality of prir Qualit* inigaia da I'imprassion Includes supplementary matarii Comprend du materiel supplimentaire Only edition available/ Seule Edition disponible r~l Pagaa damaged/ r~~l Pages restored and/or laminated/ r^^P^ges discoloured, stainad or foxed/ Uy^Paga r~~| Pages detached/ I l^howthrough/ Lk3 Ti pn Quality of print varies/ n~1 Includes supplementary material/ r~~| Only edition available/ D Pages wholly or partially obscured by errata slips, tissues, etc., have been refilmed to ensure the best possible image/ Lea pages totalement ou partiallemAnt obscurcies par un fauilMt d'arrata. une peiure, etc., ont iti filmies i nouveau da fapon d obtanir la meilleure image possible. This item is filmed at the reduction ratio checked below/ Ce document est film* au taux da reduction indiqu* ci-dassous. 10X 14X 18X 22X 26X XX / 12X 13X 20X 24X 28X 32X fier e Th« oopy filmed h«r« haa b««n r«produc«d thanks to tha ganaroaity of: Manuscript Division Public ArchivM of Canada Tha imagaa appaaring hara ara tha baat quality poaaibia eonaidaring tha condition and lagibility of tha original copy and ii< kaaping with tha filming contract spaeHicationa. Original eepiaa in printad papar eovars ara fiimad baginning with tha front covar and andlng on tha laat jiaga with a printad or iiluatratad impraa- •ion. or tha back covar whan appropriata. All othar original eopiaa ara fiimad baginning on tha first paga with a printad or iiluatratad impraa> •ion, and andlng on tha laat paga with a printad or iiluatratad impraask>n. Tha laat raeordad frama on aaoh mieroficha •hall contain tha aymbol — ^(maaning "CON- TINUED"}, or tha aymbol ▼ (maaning "END"), whichavar appllaa. L'axamplaira fllm4 fut raproduit grica i la gin4roaitA da: Division das maituscrits Archivas pubiiques du Canada Laa Imagaa auhrantaa ont 4t* raproduitaa avac la plua grand aoln. compta tanu da la condition at da la nattatA da l'a»amplaira film*, at an GonformitA avac laa conditions du contrat da fllmaga. Laa aKamplairaa originaux dont la eouvartura wn papiar aat ImprimAa aont filmte an comman^nt par la pramiar plat at an tarminant aolt par la damlAra paga qui comporta una amprainta dtmpraaaion ou dflluatration, aolt par la saconci plat, salon la eaa. Toua laa autraa oxaiitplairaa originaux aont fiimia wn commandant par la pramiira paga qui comporta una amprainta dimpraaaion ou dllluatration at •n tarminant par la damlAra paga qui comporta una talla amprainta. Un daa aymbolaa auivanta apparaftra sur la damlAra imaga da chaqua mieroficha. salon la caa: 4 aymboia -^ aignifia "A SUIVRE", la •ymbola ▼ aignifia "RN". Mapa. plataa. charts, ate., may ba fHmad at diffarant reduction ratina. Thoaa too largo to ba antlraly includad In ona axpoaura ara filmed beginning \n the upper left hand comer, left to right ind top to botton^ aa many frames aa required. The following d^rama llluatrate the method: Lee cartea. plarchea. tableaux, etc.. pauvcrct Atra flimAe A dee taux do rAduction diff Arents. L«raque le document eat trap grand pour Atra raproduit it un soul cllehA. 11 est filmA A partir de I'angle aupArieur gauche, do gauche A droite. et de haut an bee, an prenant la nombre dimegee nAceaaaira. Laa diagrammea suivanta liluatrant la mAthode. a 1 2 3 1 re. 2 v., ■/(.'' V;'" 3 \ - : ■■J , .. 1 2 3 4 5 6 % ^^^ ^nwiMi >3 \*i tHE £ltjprnnr OTourt OF DECEMBER TEAM, 1897. 1S7. VZCTOaXA. TBI Honourable HENRY JOHN BOULTON, Cum Justice of thg said Islanp, Plqii^Uff; , ., VS. t>ATRICK MORRIS, JOHN KENT, and JOHN VA- LENTINE NUGEVT, Defendant*. Substance of the Argnments of the Plain- tiffin support of his right to try this Causei before the Honourable Augustus Wallet DesBarres, and the Honourable Edward Brabazon Brenton, Assistant Judges of the Court, or either of them, the Plaintiff being Chief Justice^ and consequently inca- pable of sitting upon the trial of his own cause : — The question which hflis airisen irt this case i«, « ceptmay be to the Sheriff to summon jurors before Justices of Oyer ao-d Terminer, tt follows from hence that if the Chief Justice, becoming a party in « cause, tolls the jurisdiction of the court ; or, in other «ords,iif the Court can exercise no jurisdicticn in a cause wherein he is a party, no cause can be in- stituted either by or against him, and therefore there wottid be a failure of justice. 7"( To isiue process there must be a court capabi* of dischaiging its functions, the issuing of the process being in conteniplAtion of Law the awarii rf ti>e Court, but the Chief Justice is sitting in court, and. while there, cannot award process or do any other act wherein he is interested, and consequently no process could be awarded while he remained on th'e Bench; but as soon os he retires to aifoid the op^ portuiiity for his brother Judges to take coKnizanoe of the matter (if the doctrine now contended for be true) there will cease to be an^ Court, the other Jud- ges having no jurisdiction tohrld the Court in his absence— ergo, whatever they might do would be simply coram nonjudice, and void. It is now to be considered whether the Act au^ tborising his Maji-sty King George the Fourth to institute this Court must be construed in such a inannet as is now contended for. The Act is enti% tied " An Act for the better adminiatra>ion of Jus" tice ill Newfoundland, and for other purposes"— and it is thereby enacted that it shall and may be lawful for his Majesty, by his Charter or Letters Patent under the Greet Seal, to institute a superior court of judicature in Newfoundland, which shall be called " The Supreme Court of Newfoundlaod ;" and the said court shallbe a court of record, and •hall have all civil and criminal jurisdiction what* cfver in Newfoundland, and in all lands, iticnds and territories dependant upon the government thereof, 8s fully and amply, tb all intents and purposes, as bis Majesty's Courts of King's Bench, Common Pleas, Exchequer and High Court of Chancery, in that part of Great Britain called England, have, or any of them hath ; and the snid Supreme Court shall also be a Court of Oyer and Terminer and general Gaolilelivery in and for Newfoundland, and all places within the government thereof ; and shall also have jurisdiction in all cases of crimes and niisdemeaoours committed on the Banks of New- foundland, or any of the seas or islands to whicii Ships or Vessels repair from Newfoundland for car< ryiog on the fishery. 2nd Section. " And be it further enacted that the said Supreme Court shall be hulden by a Chief Jndge and two Assistant Judges, being respeutivelj Barristers ia England or Ireland of at least ibret 7 7<: vr«rs itanding, or in aotne of hia Majeity's Colo* iiea or Plaiitatiiina, uhu shall beappuinted to such their tiffic«'a by his Maje&ty, his heira an'.l ■tiroea- ■ors: Provided aUays that it ahfill be lawful for his Majesty, his hrira and aii^cessora, from tima to time as occasion may require, to remove and dispUcp any such Chief Jud{;e, or Aasistaot Judge as aforesaiii, and in hia stead to appoint any other ifit and proper person, being a Barriater aa afore, said, to be the Chief JxH^re or Assiatint Jud^e tant •fudge shall be absent from Newfoundland, or die, or resign auch bisortice, or by reason of sickness or otherwise shaU become incapable of pprforming the duties thereof, then and in every such case it shall be lawful for the Governor or Acting Governor of Kewfoundland for the time being to nonilAiite and appoint some fit and propel' person to a<:t aa Chief Judge or Assiatant Judge, as the cade may be, in the place or stead of the Jddge so being absent, dying, resiening his oflice or becoming incapable of per* forming the duties thereof, until such Judge shall resume the duties of his ot!;ce, or until a successor •hall be appointed by his Majesty, his heirs and successors; and the said Chief Judge and Assistant Judges shall respectively have and exercise aucU and the like powrra and authorities in Neivtound. land, and in all places dependant upod the Go* ternment thereof aa any Judge of any of his Ma* jesiy'asaid Cuu|rts of Icing's, Bench, Comnaon Pleas, and Excbt^qtier, or aa the Lord H igh Chancellor of Great Britain, bath or exercises in Fngland." 3rd Section. "And be it further enacted, that jail issues of fact ubich may be joined between iha parties in any action at law, originally brought be- fore the said Supreme Court of Reconi, or which may be joined upon any criminal information or prosecution depending in that Court, shall be tried at the town of St. John's, in the Island of New« foundland, by a jury of twelve men ; and for \\\t purpoite of hearing and trying all suits, actions, and all informations, prosecutions, and other pro* ceediuKS of what nature or kifd soever, which may be brought or commenced in the said Supreme Court, one or more term or termr, or session or MfiiioDs, of the said Court, shall be held at tN •^r n Town of St. John aforesaid, in each year, by tHr ■aid Chief Jud^^e and Assistant Jiidgn, at sucii timps as the Governor or Acting Governor of (he ■aid colony shall from time to time hy any pocla* ination to be by him for that purpose issued, direct and m point." It is manifest from the whole scope and tenor of this Act, that the intention of the Legishiture was to e<>iabli8h a Court of Supreme Jurisdiction and authority, with powers as large and ample as (hose possessed by the King's superior Courts in England, and therefore the Act is to be construed iiberalljr, with a view to the eflicient discharge of the dutis thereby imposed upon the Court, and it is not to be C'jnstrued strictly, as Acts creating ne>v Jurisdiclioas usually are, thereby excluding all authority not ■pecifically given. And therefore in construin;; this Act, the common. Law must be regarded, and no power or authority possessed ur exercised by (he Courts in England, should be excluded, which is not expressly excf pted in clear and direct terms. la other words, this Act must be construed in connec* tjon with the Common Law which the Act was passed to carry into effect. By ihe Common Law, the Act of any one or moreof the Judges of the Supe- rior Courts in Westminster Mali, in Court, is the Act of the Court, and one Judge, in common expe- rience frequently sits and determines matters, as if the Court were full— he, of course, exercising a sound di&cietion in determining only such points as are of an ordinary character, and upon which he is convinced there would be no cifference iii opinion were the Court full. Now, unless the terms ."( the Act plain, ly require the presence of the three Judges to con. Btitute a Court, the Common Law powers of Judges of a Court of Supreme authority shall not be abrid*^ ged by construction. By the Common Law, the Jiidges and other ofii« cers of the Court are privileged to biing actions ia their own Court, and may plead their privilege, ■hould any person attempt to draw them before another tribunal. So decided and inalienable is this right, that even the negative words of Magna Charta were not considered sulficient to take it away. Dy Magna Charta " Communia placila non sejvantur euriam nostram," and yet, common pleas, whrrein the officers of K. B., were parties, were b«kl ' >y II «oram reg^,, on account of their ptivilcgc. And tn if any persons were in cuslodia maresclialti, they should have privilege of K. B., and, tlicrtfore, lest there should be a failure nf justice, (which Lord Coke saya is so much ahhorred in Law J they tshall be iinplead(»l in 13. R. hy Bill, even in Com- mon Pleas, notwithstanding the nPK<>*>ve worils of the said Act of MaKni) Charta 4, Inst 71 • Uut there are no negative words in the Judicat'ire Act of this Lsliind; the terms used, as hefure stated, are these, " the Supreme Court shall .he holden by a Chief Judge and two Assistant Judges," each of whom id required to possess the same qualification for appointment ; and by the proviso at the end of this clause, "the said I'hief Judge and Assistant Judges shall respectively (a distiibutive adverb) hav^ and exercise such and tne like powers and authori" ties in Newfoundland, as any Jur^ge of anjp of His said Majestv'ssaid Courtsof King's Bench, Common Pleas, and Exchequer, or as the Lord Hiith ChxR- ceUor of Great Britain hath or exercises in Eneland." In England any one Judge can le<;ally hold any of theCourtsof which heis a Judge. It. istrue that in a former part of the Section, the Governor m autho> rized,]6hould a Judge, in case of absence from the Island, death, resifrnation, sickness, or otherwise become incapable of pertorming the duties of his office, to appoint a person to act in the stead of the Judge so incapacitated. But this, even, is hot man., datnry ; it i8 a mere authority obviously to be exer- cised only in case of necessity. The incapacity here spoken of is clearly personal ; and that incapacity «ihich is not expressed, inu9t have a relation to those which are put foi instances. If it were possi. ble to institute a «uit against the Chief Justice, befora the other Judges, (which it would not, if the con- struction contended rdict, until a new commission be made out. Bnt if he had abstained from taking his seat until the verdict had been recorded, perhups his opponent might h»ve desired to move for a new tr'<', ia arrest of judgment, or for sUch other relief i^s he might feel himself entitled to ; the Judge being a party, and having resumed his seat, cannot sit to hear a motion in his own cause, and, tiiere(ore, a new commission must be sent for to fill up the hiatus occasioned by his secesxion, and thus, dnrinf; a whole term, the business of the Court would be rendered ludicrous by the constant change of judges. And it might so happen that no ir.an who had tny respect for himselt would accept of sjoh brief au.* thority, and expose himself to the oldoquy which his decision in an individual case might expose him to, when his general demeanour would haie explain, ed nny particular pointof conduct in the on<> case, had he been allowed to retain his situation long enough to have his character fairly appreciated. Uut the very idea of the Executive Government appointing a particular Judge to tiy u particular cause, when duly considered, must be revolting to the mind of any man who has been bred in a country where public liberty rents upon the firm basis of equal laws. How would such an appointment at this day accord with the noble declaration of George the Third, of illus.. trious memory, made at the commencement ot his aliirious reign — that " he looked upon the indepeii-< " dency and uprightness of the Judgps of the land, " as essential to the impartial administration of " Justice ; as one of the best securities to the right«i " and liberties of his loving subjects, and as most " conducive to the honourot the Crown ; and there* " fort recommendad to Parliament to make pro* ^p >f '** vition for lecuriog the Judgci in the rnjoymenl ^ *' their oQicrs during good behaviour, nutwithstaad. *• ing the deuisi* of the crown." It is true the Ju'tgea in thix colony are appointed and rtmovable at the plcanuro of (he Crown ; but it would be a i^roas abuse of the preroi,Btive of the Crown to remove a Jud|!,e upon a suggestion that aome person vtishvd to bring an action or Ale a hilt against him and to appoint a successor ;»o Aac vice lo dtterroiue the case. The Sovereign is the grxnd depository of th« Justice of the nation, and enjoys the sole prerogative of appointing Judges to distribute that justice to all Biiitors : but the Crown can only make thoi>e ap-* pointments in the accusiooied methods and upon general principles ; and I deny that the 5 '>vereigii cun authofiRe any Judge, or number of Judi;e!i, to try a specific cu^e. Such a power might be vieided to the destruction of the libetty of individuals, and ought never to be nubmitted to if attempted ; and in my pt-rson, the first example of such an exertion of power shixll not, at my solicitation, or with toy consent, be ever attempted; for no man ought to submit to it, however agreeable to hia private wishea the appointment roiitht be ; aad therefore I cannot think of proposing that a course shall be adopted in my case, which, in my conscience, I think no rona should acquiesce in. The Judicature act obviously contemplates no such appointment, and the common law prerogative of the Crown, 1 feel confident, will never be stretched to reach the case. It may perhaps be said that the Judge might retire for the whole of the period during which hia cause was pending in the Court. He certainly might, if he chose, resign bis office because a trades^ man has thought proper to bring an action against him for his Rccnuut; but it is not probable. And the administration of public justice must rest upon foundations not t'j be disturbed by the caprice of individuals. The Supreme Court is a Court of equity, and if filing a bill fagdinst one of the Judges would ha«e the effect of driving him from the Bench until it was decided, the person appointed fo supply his place during the contest, might have a more beneficial estate in the office than the reversioner. If such a course, however, can prevail in the case of tha Chief Justice, it nuit also hold good with T—r r;^fwm %^ ' r«f ir(( to the Auiittnt Jurff «s ; and if a Judgt is to be driven from the Bench by ao action being thrrat« cned, (for It could not be inttilulcd agantt hiia if there be no Court without him,) cr if he must retire and seek a succetior whenever he ■hail thinl( pio. per to reiort to the lawi of hii country when he ahall feel hinoaelf ajigrieveii, it necestarily followi, that ahiiuld three tradcomen inatitute aa many mc« tiona against the three several Judges, they would all be excluded while these cauies were pending, and their successois might nut find it desirable to be too expeditious in |iving judgroeula, and might delay the final decininn for an iadefiiiite period, and thua, by the act ot ihri-e (radea i^eople, or even labourera, might the Bench be entirely changed, and thelegi* timate Judaea of the land made to give place to p«r« sons totally unqualified to fill their siatiuna ; and this process might be repeotfd every term, and the rightful Judgea be perpetually excluded. But give the Judicature Art its proper consiructioo, and sll these difficulties will vanifih ; and every man In the place might tiehige the Court wiih writs against the jadges, without impeding the ordinary coiirie of justice any more than If the suits were instituted against any other persons. That such a state of things could ever have beea contemplated by the British Parliament when fra* ming the Judicature Act, ia not to be presumed ; and therefoK the removal of a Judge, every time he became a party to a suSt, could never have been intended, neither can it be conceived that justice was to be altogether withheld incases where Judgea were parties. The Act, however, is not obnoxious to such an inconvenient interpretation, and if it be .constturd according to thoae principles which are applicable to the subject, justice will not be denied nor delayed, nor will any of the inconveniencea arise, of which not a hundredth part have been suggested, but the public business will be thereby despatched as it ia in other countries similarly situ> ated. The Judges are the constitutional expositors of all Acts of Parliament, and they are to make such construction as i>ball advance the remedy, and give life and vigour thereto— 3 Coke, 7, Hiydon's case. And to this intent, and to give aa Act such a con* atructioD aa shall be agreeable to reaaoo, they oftea ■■Mi ^/ ..iitru« it cveo conlrtrj to the text— r/oircftn, 100. kiut it would be contrary to reaion and rqitityi tbat a Jadg* iliould eithtr be a party to the dvciaion of hia own cause, or that h«^ ahould not have any remedy at all, and that O'lman ahould have a reroe. dy against him ; therefore, if it were necessary hy the express words of the Act , that eil the three Judges should be present while the Court is holdcn, this case of a Judge being a party, would be except- ed by oprration of the Common Law, and for the advaocvmentof the reniedy given by the Jadicalure Act, namely, the belter ad'iiiniatrution of justice, See I'low., 100, for the principle., la conatruinK Acts of Parliament, every word a|id sen ence shall, if it be possible, have its full effect, and no word or senttnce f he'll !>** ceKar led as •uperduous or unmeaning, if it be potsibje, having di>e regard to the whole, to. give to each its full effect. ; 1 Shower't Rep , 108. Bw. Ab. Tit. Slut. i 2. But if (he coastruction h«re contended for be . the correct one, the words extending to the Judges " respectively " the powers of , the Judges in England, will have oo operation, and will be con- (roled by the more doubtful;, words "hold the Court." iu the former p^rt of the section. . The Court is perpetual, and never ceases to exist, although it can only nit for the despatch of business^ and trial of causes, in term time; and there would be a Court existing in Law in the Island, although all the Judges mijiht be di-ad; and it in well known .that a grpat deal of business ia transacted in Cham- bers, and by any one Judge ; and any matter which may be done in chamber^, nuy also be moved in Court. Now, it would be a monstrously absurd .construction of our J^jdicature Act, to declare that by it a Judge miglit grant time to plead, for instance, or set aside an interlocutory j<'dgnient in chamberH ; but that, if sitting in open Court, he conld do no such thing until joined l^y bia Brother Judges In #lie KiKO vs. Wii.KBS, BURft. 25^0, Lord Mans^ FlKLDsays, a great deal that may he done in Court, is done by Judges in Chau'bers, in term tin>e; in vacation, a great deal more is done by them at ,chanibei8. Now, unless it shall be determined that a Judge can do nothing in chambers, thin absurdity will necessarily follow -« namely, that a Judge in chambeTs, for the coiivsniebce of the Courl^ r. V> 10 ff'f the etpedition of business, and the general advancement of j done ex. gr., an amendment to bemude in a declirntion or plea, but that he and another Judge with hi-ii ci>uld not dc the s^me thing if they were sitting in Court, in the absence of the third. Such a construction may, fierhaps. be law, but until I >>hall hear it so decided by the Privy Council, I shall npver believe it to be so. Again, if any temporary absence of a Judge »hhow. 455. Bacon ab. Statute. Again, such constmction ought to be put upon a Statute as shsiU best answer the intention of the makers, for qui Itteret in litera hceret in cortice, Bac, Statute 457 — r/ow. 467. That which is within the lelden nf a manor in one county lie in another county, ihe lord mav dis< train upon the Und and drive the di89 into the county where the manor li^s ; for aa it would be inconvenient, and a great loss to the lord if he could not drive the dislrvs^ to his manor, and the tenant is not within the mischief provided at^tiinat, tbii case, although within the letter, is not within the meaning of the Statute, 2 Inst.. 106, vet Fuch a construction is against the very words of the Act. UlackstonR stys, that Ads of Parliament that are iropossiblp to be perf()rln^d. are of no validity ; and if there arise out of them coUaierally any absurd conseqtiences imniresily contrary to coninion reuson, they are, with regard to those coIlHter«l consequences, void. He adds, 1 lay down the rule with these rc« atrictions, though he says, " I know it is generally laid down more largely that Acts rf Parliament contrary to reason are void. But if Parliament will posititivelv enact a thing to be done which in un. rranonable, I know of no power in the ordinary forms of the Constitution that is vested with authority to control i« ! and the examples usually alleged in sup* port of the sense of the ruir do none of them prove that where the main object of the Statute is unrea* 4onable, the Judges are at lit)erty to reject it, for that werr to set 'he judicial power above that of the Le^ gislature, which would be subversive of all govern" ment. Kut where some ciUaterat matter arises out of the jjren^ra/ worc/s, and happens to be unreason* :able, there the Judges are in decency to conclude that this consequence was not foreseen by the Parliament, and therefore they are at liberty to ex- pound the Statute by Equity, and only quoad hoc ■disregard it. Thus, if an Act of Parliament gives a man power to try all causes 'hat arise within his tnanoi of Dale, yet if a cans* should tirise in which he himself is a party, the Act is construed not to extend to that, because it is unrooonahle t! .vt any man should determine his own quarrel.''. 1 Bl. Com. 91.-8 Co. 118. Dr. Bonhw's case. So in the present case, the Judicattire Act of Newfoundland provides that the Supreme Court shall be holilen by a Chief Judge and two assistant Judges : yet, if a cause should arise in which one of the Judges it a parly, the Act should be construed 1^ \t iHM (o require the pretence of the Judge who ii a pnitv, when the Court shall nit to try that cause, which would be, in the lan^udge of Lord Coke, just cited ae^aiudt common right and reason; neither •l)all these aflirmative and directory words receive so literal a construction as to make it imperative upon the whole three to hold the Co. "t, and so render it impossible that the cause shall be tried at all, which would be equally repugnant tind against common right. A man ought not to rest upon the letter of a etatute only, but he ought to rely upon the sense, which is tempered and |uided by equity, and therein he reaps the fruit of 4he law ; for, as a nut consists of a shell and a kernel, so every statute consists of the letter and the sense. And in order to furm a ri(>ht judgment, when the letter of a Statute is res- trained, and when enlarged by equity, it is a good way when you peruse a Statute, to suppoge the law- maker to be present, and then ask him the questioa you want to know touching the equity, then give yourself such an answer as you imagine he would have done if he had been present. Plow. 4'>7, If the question had been pot in the course of debate, upon the parsing of the Judicature Act, whether it were intended either that a Judge ithould ffit upon the trial of his own cause, or that he should be without remedy, ^nd all persons bewith<* out redress against him, — what would have been the answer ? Can any man of common discernihent doubt ? It is not, therefore, the mpre words of ihe Jaw, but the intern<«l sense of it, that m»kes the l»w, and our law consists of two parts — the body and the soul— the letter is the body, and the sen^e aiid reason, the soul; quia ratio legit est anima legis. And it often happens that when you know the letter, you know not the sense ; for sometimes the sense is more confined and contracted than the letter, and sometimes it is more large and extensive. Plow. 465. The wordd of a S'atute ought not to be expouud* ed to destroy natural Justi-je. Sli.QX. And when words per ae are repugnant and absurd, what is necessary may be supplied by construction and rea> flonable intendment. So that the words of the Judicature Act, if ordinarily to be understood, as requiring the presence of the three Judges to hold the ^i' ■K If Coiktt, shall, io U. event of a Judge being a partf« be construed not to extend to sucV. a case, but it ihall be saved by a necessary exception to be fairly understood, though not expressed. So that where one Judge is a party and cannot hold the Court, the other Judges shall, to prevent a failure of ,ju9> tiee. ^3agua Charta says Auisce non eapiantur nisi in tuis comitatibuSf and yet if a man be dis* seized of a Lordship Marcher in Wales holden nf the King in Cnpite, the writ of Assiie shall be di- i^cted to the SheriflP of Gloucester, albeit the land was out of the County of Gloucester, and within the dominion of Wales ; and mark the leasor. — ■ Becaase the Lord Marcher, though be had jura regalia, yet could he not do justice in his own case, and therefore this case, of necessity, is excepted out of the Statute. And it is well observed quamvis pro- hibeiw quod communia placitanon seqiuntur curiam nostratn, non aequitur propter hoc quin aliqua pla.' cita sihgularia sequantur dominum regem ; and the like in this negative Statute or novel dissiezure. 2 Inst. 25. So, for the like reason, although the Statute of Merlon says, that the first jurors and other neigh** bours and lawful men shall take inquisition upon a re.disseioin, this roust be understood where there were jurors at the first assize ; for if there were none, then the inquisition on the reodisseisin shall be tried per alios, for the Statute shall not be so literally expounded that if it cannot be tried per alios, it shall not be tried at ail. '2, tnst. 84. So \« the case now in hand ; the Judicature Act shall not be construed so literally that if one of the Judges, being a party, cannot be present to hold the Court, the cause in which be is so interested shall not be tried at all. By 1, Ann, cap, 18, sec. 5, all matters concein* inor the repairing of Bridges and Highwnys there'* iribefore mentioned, shall be determined in the County where they lay, and not elsewhere ; and yet the Court of King's Bench granted a Certiorari to remove the record in order that it might he tried in another county, because the inhabitants of the county being parties, if it could not he removed, the indictment piust Kave been tried by the very persons who were parties in the cause. And this, Lord Kcnyon says, would have been u anoraaloui eait 1 w U infhelnwof England, a. T. R. 195. Xow tUrtf ift no otber court in which this cause can b« tried i and if there were, as a Judge of a superior Court, the Maintiff has a privilege to have it tried here by the Common L«w ; butif the act be se construed as to require his presence, then be must either sit iu judtrment in his owh case or be without redress. The turms of the Judicature act are affirmative and directory, but not compulsory ; ind cousequently any ac' done in Court by one or two Judges shall be as available as if done by all. By the 54 Geo. 3d., cap. 84, it is enacted, that in future the MichsBlmas Quarter Sessions should be held, for every County, in the fitst week after the 11th of October. The Sessions for Leicester were held on Saturday the 12 nf October, in the same week of, and nut after the 11 th, as required by the Statute; and, an order of Sessions having been removed into the King's Bench which had beeir made at those Sessions, it was contended that it was coram nonjudice, and void, sed non allocatur, for the words of the statute being in the aflirroative only, •re not imperative, and the Sessions were declared tohave been well held, 7, B. if C. 12. So, here, if the Jiidicatuie Act had said that the Court should be holden by the Chief Justice and two Assistant Judges, and not otherwise, or by a less number, then the Act would have been imperative, but now it is only directory, at most. But it is submitted, that inasmuch as the queif tion appears upon the record, it ought not to be decided incidentally, unless it he palpable and clear of doubt; but the cause should be tried, and the parties left to their appeal. Any other course will be a manifest denial of justice. Iq a very celebrated case of iMostyn vs. Fabri- GAS, reported in Cowp. 160, it was urged by ihe Counsel for Governor Mostyn, that he, being a' Governor of a Colony, (Minorca) was answerable civilly for NO injury whaisoever done by him in that capacity; and, secondly, that the injury being done in Minorca, out of the liealm, was not cognizabla by the King's Courts in England. And Lord Mansfield, who delivered the Judgment of the Court, fit was on a Writ of Error from ihe Common Pleas to the King's Bench) said, there is nothing so clear at that, to an action of this kind, the Oefeodr** <*^ 7 / ^ i6 fnt, if he has any juitificstinn, muat plead it; an