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who did not know him before, by his masterly handling of the great Durham poisoning case—to the very last day on which he sat at the Central Criminal Court in August 1876, his conduct on the Bench left nothing to be desired. At nisi prius he was courteous and considerate to every one, but firm withal and decided : while in banc he invariably made his presence felt, and his light was by no means dimmed even in the radiance of the greater luminaries among his seniors. A good illustration of this is afforded by his judgment in the Exchequer Chamber, in the case of Riche v. The Ashbury Carriage Company, where his opinion differed from that of Blackburn, J., and was eventually upheld by the House of Lords.*
Of his merits as a criminal judge, a striking instance was afforded in the trial of Macdonald and the other American forgers, in August 1873.
He was one of the fourteen Judges before whom the Franconia case was argued; and the Lord Chief Justice of England, in his Judgment in that case, paid the following high tribute to his merits:
"In the conflict of opinion which unfortunately exists, it is a great satisfaction to me to be able to add that the late Mr. Justice Archibald, whose loss the whole profession, and especially those who had the advantage of his intimacy or acquaintance, must deeply lament, and whose loss as a most learned, enlightened, and conscientious Judge the public has so much reason to deplore, having seen my proposed Judgment, communicated to me his entire concurrence, both in the conclusion at which I had arrived, and the grounds on which it is founded."
In addition to his ordinary judicial work, it may be mentioned, as shewing the estimation in which he was held by the chiefs of the Government Departments generally, that he was from time to time requested to serve on Royal and other Commissions, where his ability, knowledge, and experience were of very great service; ex. gr., the Commission for regulating the legal business under various Government Departments, the Slave Circular Commission, and the Commission for inquiring into certain unreformed Municipal Corporations.
* 44 L.J., Exch. 185.
In the spring of 1875, on the death of Sir George Honyman, he was transferred from the Queen's Bench to the Common Pleas, where he found himself by the side of one who when Attorney-General had special opportunities of becoming acquainted with his merits.
In the following November he was in due course appointed one of the Election Judges for the ensuing year, and had some right to expect a term of comparative rest, which he much wanted; for his previous hard work, including several very heavy assizes in the North, in one alone of which he tried fourteen prisoners for murder, had begun to tell upon his health. His sense of duty however prevented him from availing himself to the full of his privilege as Election Judge ; and during the next eight months he worked as hard as usual, taking a very large share of the business at Judges' Chambers. Many of his friends were struck in August last by his worn appearance, but were fain to hope that his projected trip on the Continent would restore him to health by the end of the Vacation. But, alas! it was not so to be. He returned to England in the middle of September far from well, and his medical advisers discovered the existence of serious disease, which they told him must necessitate a lengthened period of rest. While he was as yet hardly determined on the proper course to pursue in consequence of this intimation, the disease took a fresh turn, and developed itself with such remarkable rapidity that he died on the morning of Wednesday, the 18th of October, almost before any one out of his own immediate family circle knew he was ill.
Though the readers of this Vagazine are principally concerned with Justice Archibald as a lawyer and judge, the present Memoir would indeed be imperfect if it made no allusion to his private life and character. He was a man of simple, real, and unaffected piety ; shewing himself to be no legal monk, but a large-hearted Christian man of the world. An unostentatious but deep-seated religion gave a character to every act of his life. This was the source of numberless deeds of kindness and generosity, unknown to any but the recipients. This it was, too, that bore him up in the heavy affliction he experienced in 1865, when his eldest son, a most amiable and promising young man, was unexpectedly carried off by fever at Oxford, just after being elected a Fellow of St. John's College. And though perhaps a small matter to notice, it was a real religious feeling that suggested the motto “Deo duce, non fortuna,” which he selected when, according to ancient custom, he gave rings on being made a Serjeant. And above all it was religion that made all the surroundings of his death such as might be expected after so blameless a life.
Next to his religion, his reverence for his father's memory was with him a most powerful motive for good. He felt the full force of the maxim noblesse oblige in its proper sense, and seemed never to tire speaking of his father-telling how, by a life of duty well performed, he had won the affection of his countrymen. It would be superfluous, however, to attempt further to describe the character of this lamented Judge, after it has been already portrayed to perfection by one who has himself so well sustained the eminence of an honourable name. Lord Coleridge has said of him :
"I really believe there was no man who was more beloved by all who knew him, and I am sure there was no man who better deserved the affection he received. His great powers of mind, his learning, his judgment, tempered by gentleness which was never weakness, made him indeed at once a great Judge and a most attractive man. I believe that a more stainless character than his was never borne by any man who ever sat upon the English Bench. No one was fitter than he to be called from the great task of judging others to be judged himself. I have been told, in words I am glad to make my own, that every gentleman in the profession ielt that in him he had lost a friend ; and if he has left us in regret, he has left us also a beautiful example. I hope I may say that we ourselves in this regret may feel towards him as we know, from the words of the great old Roman, the Germans felt in the times of sorrow-- Lamenta ac lacrimas cito, dolorem et tristitiam tarde ponunt. Fæminis lugere honestum est, viris meminisse.'”*
This noble and affecting tribute to his memory from his Chief is felt by all Justice Archibald's friends to have been fully deserved. They know the words of Lord Coleridge to be as true as they are touching : they know that the man as well as the judge was emphatically good in every meaning of the word; they know too that he, if any one, was prepared for the great change that came so suddenly upon him ; and they may well say of their loved and lost friend-as one of our best and wisest said of his :
Desiderandus quidem, sed haud lugendus : quippe talium est regnum Dei.
III.-DISCOVERY UNDER THE JUDICATURE
TWO recent decisions of the Court of Appeal carry the I fusion of Law and Equity in the direction of compulsory discovery to an extent which seems startling to a Common Law mind. Disclosure has been ordered of particulars obtained by an agent abroad of one of the parties for the purpose of consultation thereon with such party's Solicitor. (See Anderson v. The Bank of British Columbia, 45 L.J. Ch. 419; Bustros v. White, 45 L.J. Q.B. 642). But it is a result which is worth consideration, as it has not been arrived at without much deliberation, and the order asked
* See the Times, 3rd November, 1876.
for had been previously refused by a Judge at Chambers, and afterwards by the Divisional Court of Appeal, consisting of the Chief Justices of the Queen's Bench and Common Pleas divisions, and the late Mr. Justice Quain.
In considering this result, it is impossible to avoid reflecting that it is the solution of a most persistent objection which has been felt for centuries by the Courts of Law to a principle of Equity, which has at length, under the provisions of the Judicature Act, been naturalized, so to speak, for the
viz., the principle of enabling a Plaintiff to avail himself, for the establishment of his rights, of information and evidence in the exclusive possession of the Defendant. This principle naturally and inevitably followed the recognition in the Court of Chancery of Trusts, which Courts of Law at first refused to recognise. They also disregarded the right of discovery from the Defendant in aid of the Plaintift's case, and left the latter to succeed or fail according to his ability to establish his case by his own means.
In the same way that the Court of Chancery established the doctrine of trusts because the Courts of Law refused to recognise them, the jurisdiction of the Court of Chancery to grant discovery arose only because the Courts of Law refused altogether to entertain it. No doubt in this they were acting according to the genius of the Common Law, and recognising their duty as its administrators to protect the weak: a principle upon which is founded the merciful rule that an accused person shall be deemed innocent until he is proved to be guilty, and a witness is held excused from answering any questions which may tend to criminate himself. At first sight, it does seem hard that a litigant should have the right of invoking the Court to assist him in venturing into the enemy's camp in search of materials wherewith to attack him; and the Court of Chancery itself gave weight to this consideration in certain instances, such as when it allowed the right of a mortgagee to refuse