Lien supports Action at Law.-The right of possession, conferred by a possessory lien, is sufficient to support an action at law, founded upon an alleged ownership in the person claiming the lien.

125. The possession will not support the lien.

When Possession will not support Lien.-(1.) If it were obtained without authority, or by fraud, misrepresentation, or other wrongful act, even though the holder of the chattels has made advances on the faith of the owner's promise to consign them to him.

(2.) If it were given casually, and not in the course of business, or for safe custody, or for any other special purpose, or by a mere trustee or person not entitled to the absolute ownership of the chattel.

The lien may arise, if, upon failure of the special purpose, the chattel be allowed to remain in the hands of the depositee.

(3.) If it be subject to a right of use or control by the owner of the chattel.

This rule excludes from the right of possessory lien :

The agister of cattle in respect of the price of the agistment;

The stablekeeper in respect of the keep of horses, or of labour or cost bestowed upon them, although at the owner's request;

But not the innkeeper in respect of the like charges, because he is bound to receive the horses-140.

ART. III. THE ADMINISTRATION OF JUSTICE IN INDIA.—No. II.

Na former article on this subject

IN

* we showed what

was the nature of the justice administered in the Subordinate Courts in India. We come now to the District or

* Vol. XXIX., p. 331.

Zillah Courts. These Courts, as we have already pointed out, are practically only Appellate Courts, almost all the original jurisdiction having been made over to the Subordinate Courts. With such Courts as the present Subordinate Courts for the trial of the original suits, no system of Appellate Courts, however learned the judges, or however able the Bar, could effect anything like a pure administration of justice in India. What possible advantage can be derived from an appeal when (to use, not the words of a mere outsider, but the well considered and judicial language of the judges themselves *) judges of these original courts utterly disregard the law, when notes of evidence taken by them are a disgraceful farce, when such a thing as a trial in the proper sense of the word is unknown, and when the record is one chaotic heap, consisting of a mass of matter having no more bearing on the law suit which it purports to be than to an adultery case of the day before?

How chaotic this mass of irrelevant matter is may be understood from the fact that, to prepare an appeal for hearing by the Judicial Committee of the Privy Council, it requires at least four years to allow the clerks and translators and parties time to sift the wheat from the chaff, and translate the papers which bear on the case; and after all, even with this four years' sifting, their lordships constantly complain of "the frequent inclusion of voluminous papers, accounts, and receipts in the transcripts printed in India, and sent over in that form to the Registry of the Privy Council, an evil which appears to be on the increase."

The duty of a Court of Appeal is to correct the mistakes of the court that tries the case, but what is to be done when the whole record in a case of any difficulty contains nothing but mistakes? The plaint does not show distinctly what the plaintiff claims, nor does the answer show what it

is that the defendant takes objection to, or what it is that he admits, while the issues, which it is the duty of the judge in India to ascertain, are probably directed to points altogether irrelevant, and the evidence is for the most part inadmissible and seldom or never connected with the actual issues.

The whole trial is in fact so bad that there would be only one conclusion in England, in every case, and that would be an order for a fresh trial. But suppose the judges were hearing an appeal in an Indian District Court, would they feel justified in ordering a new trial, "a second representation of the disgraceful farce, a second series of those gambling matches where parties try their strength, and the most wicked and cunning gain the day."

No doubt if the Appellate Courts are not fit to perform the work entrusted to them, the enormous evil caused by the utter rottenness of the original trial would be greatly increased. There can, we think, be little doubt that the Appellate Courts are not so fit as they ought to be. Not only have the Native Judges unlimited original jurisdiction, but they have practically unlimited appellate jurisdiction, and in Bengal they actually try half the whole number of appeals filed. We wish now, however, to refer more particularly to the European Judges of the Appellate Courts. These judges are undoubtedly also very inefficient. In the first place, the principle of granting an appeal from one single judge to another single judge is, we think, erroneous. If the Appellate Judge should differ from the judge who tried the case, it is merely the opinion of one man against the opinion of another, and in regard at least to the points of fact, the judge who tried the case is by far the most likely to give a correct opinion. No judgment of any court should be liable to be reversed unless two judges at least concur in thinking it erroneous. The next point in the constitution of the Appellate Courts which is altogether faulty is, that throughout India the Europeans who are ap

pointed to preside over them have had no experience in the trial of original suits. In Bombay a young civilian, two years after his arrival in the country, is at once appointed an Assistant Zillah Judge, with jurisdiction to hear appeals from men who have spent their lives in the administration of justice in India. In Bengal it is worse. There civilians who have spent the best part of their service as tax-gatherers are late in life promoted to the judicial office. But the great blot on the present system is, that the two years of probation in England, which a civilian passes before proceeding to India, are, although not absolutely wasted, yet not employed, as advantageously they might be, in preparing him for his duties in India. The curriculum wants revising, and, above all, the doctrine that by reading a few law books and attending a few trials, one half of the procedure in which is utterly unintelligible to him, the young civilian can ipso facto become a lawyer, must be relegated to the obscurity it deserves. Onethird of the probationers at present work honestly for their half-yearly examinations, the other two-thirds cram for a fortnight previous to each examination, and the majority of them succeed in passing muster. Those who do not are fined, but although they cannot satisfy the examiners, they find their way to India in due time in spite of their failures. Occasionally the Civil Service Commissioners display a spasmodic vigilance, and pluck a few unhappy wights, who, relying on the fact that so many before them have crammed their way through their time of probation, attempt to travel by the same royal road. In a word, cram is the curse of the training of the young Castilians.

Notwithstanding, however, the disadvantages under which the European judges labour, they are undoubtedly better judges than the present Native Judges, even from the first day they take their seat on the Bench, ignorant as they may be of the law, and even of the language in use in their Court, inasmuch as they are civilised and educated human beings, whereas there is scarcely one of the Native Judges that has

va stai Gilmar

received any education at all. They have usually a knowledge of the three R's, and smattering of the technical rules of Indian law, but anything like a liberal education or a knowledge of the universal principles of Jurisprudence is not possessed by one in a hundred of the present Native Judges.

A writer in the Edinburgh Review has suggested, as a remedy for the admitted evils of the Indian judicial system, that more natives should be appointed to the Bench than at present. This seems to us not to touch the real root of the disease. There is even strong ground for doubting whether to carry out the recommendation would not be to make the evil worse that it has ever been before. Whether the main cause of the injustice, now administered in the Indian Courts, is that the administrators of that justice are natives or not, one thing is clear that, in the only place where Europeans do the whole, or nearly the whole, of the judicial business, including the work of the Bar and of the officers of the Court, justice is admitted by all classes to be better administered than it is where the whole of the Bar, the whole of the officers of the Court, the whole of the Judges of Original Jurisdiction, and half of those of Appellate Jurisdiction are natives. The civil justice administered in presidency towns may be said to be European justice, while Mofussil justice may be said to be Indian justice. We do not say, and, in fact, we do not believe, that it is because Mofussil justice is administered by Native Judges that it is notorious; but we do say that a remedy, which proposes merely to add to the already existing ninetynine judicial offices held by natives, the one solitary office that has gone astray into the hands of a European is one which can have very little practical results. We do not use these figures in any but their natural sense. That ninety-nine out of every hundred judicial offices are held by natives in the Mofussil is rather an under-estimate than

* Article "Indian Judges-British and Native."