Page:The Green Bag (1889–1914), Volume 05.pdf/26

 Sir George Jessel. the year 1866. Now, it could only be made in the year 1866 by statute, because in the year 1866 equity judges did not profess to make new law." After quoting from ViceChancellor Wood, he goes on : " All I can say about it is, being very clearly of opinion that the Vice-Chancellor did not arrogate to himself in 1866 legislative powers. . . that it was simply a mistake of the Vice-Chancel lor, and that is how I shall treat it." Then quoting from Lord Chelmsford's opinion, he pleasantly adds : " I am no Edipus; I do not understand the passage." Then another ex-Lord Chancellor receives his attentions. "Lord Selborne says 'Lord Thurlow said' so and so. There is a very good answer to that, —• he did not say so." Clearly here "Tros Tyriusve nullo discrimine agitur." Notwithstanding this vigorous allocution, some of the erring judges failed to kiss the rod; Malins, V. С., saying, in Bubb v. Padwick,1 " I entirely dissent from his judgment, and I entertain a totally different opinion." It was not often that his lordship admit ted himself overcome by authority when he felt that justice was on the other side; but oc casions there were, though they never passed without a distinct protest on his part. Thus where a house before the date of completion of the purchase was destroyed by fire, and the vendor received the insurance money, but refused to relieve the purchaser, Jessel said : " If this case were res integra, and I had to decide it in my view of what was rea sonable, I might have found some way of assisting the plaintiff [purchaser]; but it appears to me that the case is really con cluded by authority."2 "The first point I am going to decide," said he, in Camberwell Big. Soc. v. Holloway,3 " is one which if there were no authority I should have thought ought to be determined differently from the way in which it has been decided. As I understand the decisions, it has been decided that when a man sells a lease for a

defined term of years, etc., he does not make a good title to the lease unless he shows that he holds direct from the freeholder, etc. I am not in a position to overrule these deci sions. There are too many of them." One is tempted to say with Hamlet, — "Let Hercules himself do what he may, The cat will mew, the dog will have his day."

Still more rarely do we find on his part confession of a great or insuperable difficulty in reaching a conclusion; but his frankness in these rare instances is taking. " The questions raised on this will are by no means easily solved," he begins his judgment in Hampton 7'. Holman,1 "and I am thankful to say I have only to solve two of them." And again : " During the argument of this case2 I have felt what I seldom feel, — considerable difficulty, because there is a strong technical argument in favor of the appellants; butas it appears to me the common sense and jus tice of the case are in favor of the respond ents." It is perhaps needless to say that the respondents prevailed. It would be a marvel if so strong and pos itive a mind never made any errors; but it may fairly be said that when he was over ruled, the vigor and masterful quality of his intellect displayed itself quite as clearly as when he was sustained. A few instances — and there are not many to be found — will suffice. A case had been sent by him to a referee to assess damages, which the ref eree did, stating the principle upon which he had acted. Upon the report coming in, his honor not being satisfied with the prin ciple followed by the referee, proceeded to reassess the damages, using the short-hand report of the evidence before the referee, but upon a different principle than that adopted by the latter, thus practically mak ing himself a jury as well as judge. The Court of Appeals, while admitting the cor rectness of his principles, reversed his decree as unauthorized in practice, and remitted the

113 Ch. D. 517, 523. 2 Rayner r. Preston, 14 Ch. D. 297, 300. » 13 Ch. D. 754. 759

1 Hampton v. Holman, 5 Ch. D. 183, 185. "Jones v. Rimmer, 14 Ch. D. 588, 591.