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RECOVERY OF GAMING DEBTS.

An instructive contrast between the treatment of similar questions in the High Court and the County Court is furmished by the hearing of the case of Radford v. Wrigley by Mr. Justice Bucknill (May 3) and the judgment delivered by Judge Shand in the previous week (April 24) at Liverpool, in the case of Charles & Co. v. Baldwin, reported in the last issue of the County Courts Reporter. In both cases the question arose whether, where winnings on bets had been settled by cheques which had been endorsed by the payees and paid through their bankers, the drawers of the cheques could recover the amounts so paid as payments which, under the provisions of the Gaming Act, 1835, sec. 2, could be regarded as debts due by the payees to the drawers. Mr. Justice Buckmill, ignoring altogether a judgment of a County Court Judge (in Collis v. Girling, cited 2 C. C. Rep. 47), which was handed to him as supporting the plaintiff’s contention, held simply that the defendant’s general plea under the Gaming Act prevailed. But he gave no indication of any guiding rule or principle which could be applied to other cases. In the County Court judgment, however, there was a full consideration of the authorities, and it was shewn that, by a judgment of Chief Baron Palles in an Irish case (Lynn v. Bell (1876)) there was no ground for the suggested application of sec. 2 of the Act, which was intended only for the protection of bona fide holders, without notice, of such securities. Some Judges of the High Court have a curious way of shewing scant respect for the Gaming Acts and of visiting those who raise them as a defence with their implied censure. In the case before Mr. Justice Bucknill the successful defendant who had been dragged into the High Court, was allowed only County Court costs. In another case on the same day, before Mr. Justice Lawrence, no costs at all were allowed to a defendant who successfully raised the same defence. The policy of the law being to discourage gaming by not allowing any betting debts to be recovered, it is rather to be deprecated that Judges should act on a contrary principle by reserving their discouragement for those who avail themselves of this legal defence.—Law Journal.

THE RIGHT OF “DOLEANCE.”

The most ancient jurisdiction of the Privy Council is concerned with the hearing of appeals from the Channel Is. lands. When in the time of Edward I. Royal Courts were established for all important cases in the English domains, and the final appeal lay to the King in Parliament, the Channel Islanders claimed and obtained the right to have heir-petitions against judicial, and also administrative, grievances heard by the King in Council. They were the King's subjects in right of the Duchy of Normandy, and they desired to retain the old feudal privilege of appealing to their lord “et son Conseil.” That right, which was accorded to them in the fourteenth century, has been maintained with little modification to our own times; and they still enjoy special privileges before the King's Council which, pertain to no other subjects of the Crown. Not only is there an appeal as by right from judgments of the Courts of Jersey and Guernsey, which are far below the appealable amount for cases from the dominions and colonies, but a peculiar institution, the “Doléance,” is reserved for any inhabitant of the islands who considers himself aggrieved by any action of the Courts or the Executive. In virtue of this privilege he may petition the Privy Council to recommend His Majesty to send “an advice ’’ to the Court to annul or modify its sentence; and the Council refers such a Doléance to a special commit. tee. The most recent example of the exercise of this right is the petition as to the election of a Jurat in Jersey, which was heard a few weeks ago by a committee of the Council, on which the Lord President (Viscount Morley), the Home Sec. retary, and Sir Robert Romer, were sitting. The petitioner was a solicitor, or écrivain, of the Royal Court of Jersey, who a year ago was elected by popular vote to a vacant place among the Jurats (or Judges) of the Court. This tribunal, however, which has finally to ratify the election, refused to swear him, on the ground that he had been suspended some years ago from a Curatorship which he held, and was there. fore not a fit person to hold the judicial office. The commit. tee eventually held that there were sufficient reasons for advising the King to interfere on the écrivain's behalf, thus illustrating, in a very picturesque way, how the sovereign to this day remains personally the ultimate fountain of justice for his subjects.--Lau Journal.

ADVERSE WITNESSES.

Sooner or later every advocate has to face the unpleasant experience of having his case let down by a witness he has himself called in support of that case. Frequently a witness fails to swear up to his proof; sometimes he gives evidence directly opposite to that expected from him. Under such circumstances, what is the advocate to do? He has to decide quickly, and upon his decision the result of the case will often largely depend. At such a moment self-possession, experience, and knowledge of the tribunal and of his opponents are invaluable assets, which will often make him do the right thing, perhaps almost subconsciously. Suppose he decides that he must at once attempt to rectify his witness's default, how can he do it? If he has other evidence of the particular fact on which he can rely, he had better decide to trust to such other evidence, and when the time comes do what he can to erase or mitigate the impression made upon the Court by the unexpected statement. When a witness is called by a party to prove his case, and he disproves that case, the party is still at liberty to prove his case by other witnesses, and it is quite legitimate for the advocate to submit that the surprising witness was honestly mistaken in his impression of the particular fact. It would, as was pointed out nearly a century ago in Euter v. Ambrose, [1825] 3 B. & Co. 746, be a great hardship if this could not be done, for if a party had, say, four witnesses upon whom he relied to prove his case, it would be very hard that by calling first the one who happened to disprove it, he should be deprived of the testimony of the other three. If he had called the three before the one who had disproved the case, it would have been a question for the jury upon the evidence whether they would give credit to the three or to the one, and the order in which witnesses happen to be called ought not to make any difference in this respect. Consequently, we get the old rule of evidence which has been expressed as follows: If a witness proves facts in a case which make against the party who called him, the party may call other witnesses to prove that those facts were otherwise; for such facts are evidence in the cause, and the other witnesses are not called directly to discredit the first witness, but the impeachment of his credit is incidental and consequential only. It may be objected that this rule has been altered by the provisions of s. 22 of the Common Law Procedure Act, 1854 (17 and 18 Vict, c. 125), and of the replacing sec. 3 of the Criminal Procedure Act, 1865 (28 and 29 Vict., c. 18), which enact that “a party producing a witness shall not be allowed to impeach his cre. dit by general evidence of bad character, but he may, in case the witness shall, in the opinion of the Judge, prove adverse, contradict him by other evidence, or, by leave of the Judge, prove that he has made at other times a statement inconsistent with his present testimony.” We shall have to refer again to this provision; our present purpose is only to draw attention to the words we have printed in italics, which, on the face of them, appear to vary the old rule that it was for the advocate to consult only his own judgment in calling the other witnesses, by imposing a condition that this can only be done when the Judge has expressed a certain opinion. In practice, however, the apparent limitation is ignored, and the old rule maintained. In the course of the argument in Greenough v. Eccles, ([1859) 5 C. B. (N.S.) 786), Williams, J., observed : “There is evidently some blunder in the section. In all probability it was intended to be read thus— “But he may contradict him by other evidence, or, in case the witness shall, in the opinion of the Judge, prove adverse, by leave of the Judge prove that he has made at other times a statement inconsistent with his present testimony.” And in the same case it was generally admitted that long before the Act of 1854 it was settled law that if a witness gave evi. dence contrary to that which the party calling him expected, the party was at liberty afterwards to make out his own case by the testimony of other witnesses. The same Judge, in giving judgment, declared that it was impossible to suppose the Legislature could have really intended to impose any fetter whatever on the right of a party to contradict his own wit. ness by other evidence relevant to the issue, a right not only fully established by authority, but founded on the plainest good sense, and his remarks were endorsed by Willes J., while Lord Cockburn C.J. was most precise in his indict. ment of the provision in question. Said he, “Looking at the section, I think it is clear that there has been a great blunder in the drawing of it, and on the part of those who adopted it. The first two branches of the section were evidently intended to be declaratory of the existing law, but the third branch goes far beyond it. It was intended to give a party producing a witness an opportunity, with the leave of the Judge, if the witness should prove adverse, of shewing that he had previously made a statement contradictory to his then testimony. But, unfortunately, the word ‘ adverse, instead of preceding the third branch of the section only, is made to precede the second branch, which is clearly declaratory of the existing law; so that, if the word ‘ adverse, in the second branch of the section is to receive the same interpretation which it is now considered it ought in the third branch to bear, there would be imposed an aditional restriction to that which existed before the statute upon the right of a party calling the witness to shew by other evidence facts which the witness had contradicted. If, therefore, it were necessary to put an interpretation upon the word ‘adverse” with reference to the second branch of the section, I should incline to think it impossible that the Legislature could have intended to use that word in a sense which would impose a restriction which did not before exist. However, perhaps the better course is to consider the second branch of the section as altogether superfluous and useless.” And this is what has been done in the fifty years that have elapsed, though it is little to the credit of our desire for legislative accuracy that the misleading and ignored provision still remains on the statute book.

There has been some conflict of opinion as to what is the result of a party calling evidence which incidentally contradicts his own prior witness on one part of that witness's evidence. Lord Campbell C.J., in Faulkner v. Brine, [1858] 1 F. & F. 254, expressed the view that the whole of the witness's evidence was swept away by the contradiction, but the better and prevailing opinion seems to be that the uncontradicted portion remains, and may be acted on, though its value may very naturally be impaired in the eyes of the jury or of the Court. See Bradley v. Ricardo, [1831] 8 Bing. 57. In this connection we may note the dictum of Hamilton J. in Summer v. John Brown & Co., [1909] 25 T. L. R. 745, that when two equally credible witnesses called by a party flatly contradict each other, it it not competent for the party calling them to seek to discredit one and accredit the other. In a further article we propose to discuss the rule as to discrediting a witness and the general treatment of hostile witnesses.

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