London Legal Letter. and having no knowledge of the incident. As the case was deemed of unusual import ance the Lord Chief Justice joined the two fudges of the Divisional Court and presided at the hearing. No defence was made in law,Counsel for the editor simply making an ap peal ad misericordia and reading the affida vit of the editor in which the latter made as humble an apology as it was possible to frame. To the disappointment of the members of the bar who thronged the court to watch the pro ceedings the Lord Chief Justice did not refer to the question of contempt or attempt to decide whether the article, which it was ad mitted was not published until after the case in which Mr. Justice Darling had made his observations had been disposed of, constituted in fact contempt of court. He confined his remarks to the impropriety of the article and the consequences which would inevitably re sult if such scandalous abuse of a judge was permitted to go unpunished. He then fined the editor $500 and the costs, which probably amounted to as much more, and ordered that he stand committed to prison until the fine was paid. There was an arrest of judg ment until later in the day when the money was forthcoming and the prisoner was dis charged. Although the result, so far as the punish ment of the author of the disreputable article is concerned, was satisfactory, it is to be re gretted that there was not some expression of judicial opinion that would indicate that this decision should not be invoked as a prece dent to establish the new proposition that mere vulgar abuse of a judge is contempt of court. In the old days there was a kind of contempt which, in the language of a cen tury ago, was called " scandalizing the court itself," but the privy council has recently de cided in McLcod v. St. Aubyn, (1899, Ap peal Cases, 549), that punishment for such offences has become obsolete in this coun try, and that judges are now satisfied to leave to public opinion attacks or comments deroga tory or scandalous to them. If, however,
261
they are of such a nature that they cannot be overlooked, then the judge, like every other member of the community, must resort to an action for libel or criminal information for his vindication. The same rule would seem to prevail in the United States where in half a dozen cases in as many different States it has been held that a slanderous or libellous publication con cerning the judge in relation to an act already done or a decision rendered, cannot be pub lished by the court as a contempt. However criminal the publication may be it lacks that necessary ingredient to constitute a con tempt, of tending to prejudice the cause or to impede its progress. The other* matter which has excited com ment among the members of the bar is a re mark made from the bench by the Lord Chief Justice as to speculative actions. In this country any solicitor who was known to take up a case on a contingent fee would be very severely dealt with, and any barrister who permitted a solicitor to mark upon his brief a fee with the understanding that it was not to be paid except in .the event of success, would undoubtedly, if the fact became known, be unfrocked by his inn. In the trial of ac tions for damages for personal injuries an in timation that the cause is speculative will greatly prejudice it both with the judge and the jury. To such an extent does this preju dice go that only a few months ago one of the judges ordered a solicitor who had brought an unsuccessful action on what appeared to be speculative terms, to pay the costs out of his own pockets. As these costs involved not only those payable to the court but the fees of the opposing counsel the order amounted to a fine of at least $500 for start ing the speculative action. However, it is hardly likely that such an order will be again made after the dicta of the Lord Chief Justice. In a case tried before him a few days ago in summing up to the jury he remarked that "he thought it right to say, on the part of the profession and the class of persons who
