service of the petitioner was determined by the Orderin-Council of the 1st May, and no notice need be given of it to the officer affected. This is not analogous to the case of master and servant, for office under the Crown is, apart from Act of Parliament, determinable at the will and pleasure of the Sovereign, and that will may be expressed, and is effectual to determine the office, without notice. There is no obligation on the Crown, but a mere unilateral agreement on the part of the officer. Foran v. The Queen, 16 V.L.R., at p. 523. Mr. Higgins, Mr. Brodribb and Mr. Topp, contra. Apart from Act of Parliamenta dispensing with the services of an officer by the Crown is like that by an individual, there is no dispensing unless it is communicated to the person to be affected, just as there is no contract unless the acceptance of the contract is communicated to the other party. Reg.v. Dowling, 2 V.R. (L.)61; Brogden v. Metropolitan Ry. Coy., 2 App. Cas. per Lord Blackburn at p. 692. Under the circumstances of this case there has been no determination of the petitioner's office at all. Sec. 121 of the Public Service Act 1890 does not authorise a dispensing with the services of a person in the petitioner's position. It is very doubtful if there is power to dispense with services in any department if there is an excess of officers, and further issue is joined upon the question whether there was an excess of officers. The effect of the Public Service Act is not merely to make a contract between the Crown and its officers, but to create a status which can only be got rid of in pursuance of the Act. Sections 27 and 121 do not apply to teachers at all. State school teachers were formerly outside the Public Service, and the Public Service Act of 1883, which brought teachers within the Public Service, contained sections applicable only to teachers, and others only to officers other than teachers. That distinction is shewn by the headings of the various parts of that Act. When the consolidation of the Acts took place in 1890, the headings were wiped out, and the sections mixed up. Still the sections should be read as if they still were under the original headings. Looked at in this way, the Act contains no power to dispense with the services of any teacher. Section 121 must be read with some qualification. As it stands it is separate from the sections preceding and succeeding it. If the last words of that section are read as on amalgamating two or more departments," instead of as "or amalgamating &c.," the various parts of the section fit one another and the section itself fits the position in which it is placed. The power given by section 27 of diminishing the total number of persons " to be employed " is only a power to fix the number and not to dispense with services. [HOOD, J. If your contention is right, there is no provision for getting rid of civil servants if their services are not required]. No. And this was the intention of the Legislature. It was meant that civil servants should have a fixed tenure of office and that if any department became over-manned that might be corrected by stopping further appointments and by transferring within the department and from one department to another. At any rate this is the case with teachers. Even if the services of teachers may

be dispensed with it can only be done on proof of an excess of the number of teachers required and there has been no such proof in this case. Mr. Box in reply.

She

WILLIAMS, J., delivered the judgment of the Court. This is an appeal from a judgment of our brother a'Beckett in favour of the petitioner for the sum of £67 Os. 5d., in addition to the sum of £10 15s. 1d. which was paid into Court. It is asked that except as to the sum of £10 15s. 1d., judgment should be entered for the respondent. The petitioner in her petition set forth that she had been illegally removed from her office as state school teacher and claimed damages froin Her Majesty for that removal. also set forth that on the 28th February, 1894, she had received a notice from the secretary of the Education Department telling her that the Minister of Public Instruction had decided to reduce the teaching staff by dispensing with the services of as many married female teachers as were in excess of requirements, and he proceeds to inform her that her services will not be required after the 31st March, 1894. She alleges that that notice was illegal, that she had always been ready and willing to discharge her duties, but that she had been prevented from discharging them by the Minister of Public Instruction. The only portion of the respondent's answer which needs consideration is that contained in paragraphs Nos. 8, 9 and 10. The effect of these paragraphs is that it appeared necessary to the Public Service Board with the consent of the Governor-in-Council, that the total number of persons to be employed in the Department of Education should be diminished, and that the board with the consent of the Governor-in-Council in pursuance of sections 27 and 121 of the Public Service Act did diminish the number of persons to be employed in the department by 67, and did dispense with the services of the petitioner. Then in paragraphs 9 and 10 the respondent in effect raises the same defence. That defence is based on sections 27 and 121 of the Public Service Act 1890. The Crown alleges, as I follow the defence, that under section 27 the board with the consent of the Governor-in-Council decided to diminish the total number of persons employed in the Education Department. That was the first step they took. It appeared necessary that the number should be diminished, and the necessity having appeared, the board decided to diminish the number of persons to be employed in the department. The board did this with the consent of the Governor-in-Council. The next step was taken under section 121, and was to carry the first decision into effect. That step was that the board dispensed with the services of 67 officers in the Education Department, again with the consent of the Governor-in-Council. It is said on behalf of the petitioner that what is set out in the answer of the Crown is of no effect in law-is not legal so far as officers in the Education department are concerned. It is doubtful whether that objection is open to the petitioner upon the pleadings, but we are relieved from expressing an opinion on that point, by the conduct, both here and below, of counsel. It is an open question

whether what was done in this case could be done quo ad officers in the Education department. Now it has been argued by counsel for the petitioner with great force that neither of these powers in sec. 27 and 121, apply to teachers-that they are outside those provisions. We cannot agree with that contention. We think that it was the intention of Parliament that the total number of officers in any department might be reduced as long as it was effected in the way pointed out in the Act, and that that reduction might be effected by dispensing with the services of officers in any department, that of education included. The power is an important one, and is stated in the very widest and largest terms, and we see no reason for restricting it or adding any qualification. Section 27 is as follows:-"The board may with the consent of the Governor-in-Council from time to time whenever it may appear necessary increase or diminish the total number of persons to be employed or alter the distribution of the officers in any department." Then comes sec. 121, the second clause of which is "but nothing herein contained" we read that as meaning nothing within the act contained, "shall be taken to prevent the board with the consent of the Governorin-Council reducing the number of officers in any department or dispensing with the services of any officers." Again the power is expressed in very large and wide terms. In reference to that section the definition of "officer" given in section four must be noticed. That definition is "officer' shall mean and include all persons employed in any capacity in the public service." The argument that these sections do not apply to officers in the Education department forced counsel for the petitioner to go this length, and he could not have stopped short of it-that no matter how much the Education department fell to pieces, that is no matter how small became the requirements of or the necessity for the existence of the Education department, or, as I understood counsel, of any other department, officers in those departments remained such for the term of their natural lives, unless they were dismissed for cause. We think that such a state of things as that was not intended, and that Parliament kept in view, all through the Act, that circumstances might arise which would make it necessary to reduce the Civil Service or increase it, and in reference to such a contingency, one of which was highly probable, they reserved a power in express terms to that effect. With reference to the other point it is said that this act of the board in dispensing with the services of sixty-seven officers in the Education department of whom the petitioner was one, which act was submitted to the Governor-in-Council for his approval, and of which he approved, had no effect as regards the petitioner. The only thing that was communicated to her was the fact that the Minister of Public Instruction had decided to dispense with her services, and it is contended that until the fact that the Board had reduced the number of officers, and that this decision had been submitted to the Governor-in-Council, who consented to it, were communicated to her the act of the board in no way affected her. As to that contention

We

the first thing to be noticed is that this Act of Parliament says nothing as to publication in the Government Gazette or as to giving notices to persons affected. In many Acts it is provided that notice shall be given by publication in the Government Gazette or in some other mode. But there is nothing of that kind in either section 27 or 121. Therefore there is no statutory provision which either states specifically or implies that notice shall be given to the persons whose services have been dispensed with. The person who is affected is not called upon by the Act, and has no right, to show cause against the decision of the board or against the decision of the Governor-in-Council, and that may be a reason why any provision as to notice is omitted. We think that no notice is required. The authority for dispensing with the services of the petitioner is Exhibit No. 1. It contains first a certificate by the board [His Honor read it]. That document is submitted for the approval of the Governor-in-Council, and he approved it on the 1st May 1894. are disposed to think that that document when it was submitted for the approval of the Governor-inCouncil, and when he approved it, was publishedit became a public document, a public record, and was published to the world. In that view we think that notice to the persons affected was not necessary. Apart from that we are also inclined to agree with what was urged by Mr. Box, that the petitioner was, as she acknowledges, a servant of the Queen, and that she held the office at the Queen's will and pleasure. Her Majesty might dispense with her services at any moment she pleased at her own will and pleasure. She might signify that will in a variety of ways, by a warrant under her sign manual for instance. In this Act there is prescribed a mode in which her will and pleasure may be made known, namely the mode mentioned in sec. 121. That mode has been followed in this case. It has never been contended that, if the Queen chose under her sign manual to remove an officer in her service, she is obliged to give the officer notice. From the time she exercised her will and pleasure the services of the officer cease. So, here, as soon as the board has signified its decision in the way appointed the officer ceases to be in the services of the Queen. For both of these reasons we think this appeal fails. I may say we cannot agree with the view taken below by our brother a Beckett. He appears on both points to take the view we now take, he thinks that the removal of the petitioner was legal, and that no notice to her was necessary, but he then proceeds upon a view which was not argued, that because the petitioner was misled by the irregular and illegal notice of the 28th February, into a belief that her services had not been properly dispensed with, she is entitled by way of damages, to her salary up to the date when she became aware of the act by which her services were legally dispensed with. With that view we cannot agree.

It is difficult to conceive how a claim for damages can be supported upon any such ground as that. The only grounds would be the two grounds argued on behalf of the petitioner. We therefore think the appeal must be allowed. So much

of the order of our brother a' Beckett as orders payment of anything beyond £10 15s. 1d., the sum paid into Court, will be reversed and judgment will be entered for the respondent in action. The appeal will be allowed without costs, the Crown not pressing for them. Solicitors, for the Crown Guinness, Crown Solicitor; for the petitioner, J. J. McLaughlin.

SUPREME COURT.

Before Hood, J.

MCCRORY v. RIVETT.

Feb. 27; March 13. Justice of the Peace-Disqualification -Suspicion of bias-Time for taking objection. Semble, A justice is disqualified from adjudicating if the circumstances be such that ordinary persons would suspect bias, and would regard him as a partial judge, even though he clearly be not biassed or interested. A party, knowing that there may be some objection to the constitution of a bench of justices, must take that objection at once, and it is too late to raise that objection on an order to review. Order to review.

The facts fully appear from the judgment.
Mr. Eagleson for the judgment creditor shewed

cause.

Mr. Robinson for the claimant supported the order. Counsel cited Eckersley v. Mersey Docks and Harbour Board, (1894) 2 Q.B., 667; Reg v. Henley, (1892), 1 Q.B., 504; Reg. v. Gaisford, (1892), 1 Q.B., 381; Mayor &c. of Prahran v. Carter, 15 V.L.R. 228.

Cur. adv. vult.

HOOD J., read the following judgment:-This was an order to review a decision of magistrates. It appears that Mr. John McCrory sued Mr. Ernest Rivett in the Police Court and obtained judgment. Upon that judgment execution issued and a certain pony was seized which was claimed by Mr. A. H. Rivett a son of the defendant. Thereupon an interpleader summons was taken out in order to determine to whom the pony belonged and ultimately the Court decided that it did not belong to the claimant, but to the judgment debtor. Thereupon the claimant obtained this order to review upon the grounds 1. That the order was made against evidence. 2. That under the circumstances disclosed in the affidavit of Ernest Rivett, the said F. W. Rolland, was disqualified from adjudicating in the case. I propose to deal with the second ground first as it is the most important. The facts relating to it are that when the Court sat there were three magistrates present Mr. Rolland, Mr. Hallifax and Mr. McCrory. The first case called on was one in which Mr. Rolland was complainant. He left the bench, went into the witnessbox, proved his case, which was undefended, and obtained a verdict. He then took his seat on the bench again, and Mr. McCrory went down into the Court to conduct his case against Mr. Rivett. Mr. Rolland

however was about to leave the Court after his own case had been heard but was induced to remain to constitute a bench on Mr. McCrory's case though it appears that another justice came to the Court almost as soon as the case began. Upon these facts it is contended that Mr. Roiland was disqualified from sitting upon the case. The rule that applies to such circumstances is clear. To commence with no man acting in a judicial capacity from the Lord Chancellor down to the magistrate appointed but yesterday can deal with a case in which he has a pecuniary interest or in which he is biassed unless permitted to do so by Parliament or by consent of the parties. But the law in its anxiety to protect the respect and confidence which it is desirable as a matter of public policy should exist in the administration of justice goes further, and prohibits anyone from deciding a case even though he clearly be not biassed or interested, if the circumstances be such that ordinary people would suspect bias, and would regard him as a partial judge. In fact not only must judicial proceedings be really free from bias and interest, but they must be so conducted as to avoid giving any substantial grounds for suspicion. If from any reason there is a real likelihood that the bench would have a leaning towards one of the parties, that bench cannot deal with the matter although it be proved to demonstration that no actual bias existed. Now in the present case the transformation of a magistrate into a complainant, and then back again into the magistrate; the sight of one man deciding his colleague's case and then the colleague doing the like office for him is unseemly in the highest degree. Should a conflict of evidence arise, as it may at any moment, the magistrates on the bench might have to decide that their colleague, who has just left them and who will be alongside them again in a few minutes, is unworthy of belief. On the other hand, they may believe him and decide in his favour, when it is very certain that the defeated litigant will criticise their motives and the criticism will not be without a certain amount of sting. It was said in argument that a man is entitled to have his litigation decided even though he be a magistrate. This is quite true, but when he accepts such a position he should be prepared to make some small sacrifice and he might either arrange that his case should not come on in the Court at which he usually presides or else he might refrain from sitting on the bench on the day when he has a case in the list. But the question is not whether the appearance of evil can be avoided but whether the conduct of the magistrates has been such as to call for the interference of this Court. The discussion before me turned entirely upon this, and, so far, I have dealt with the case according to the mode in which it was presented to me. I do not, however, feel called upon to go any further in this direction. As the matter is of great public importance I have stated what in my opinion is the true rule and I have also ventured to express the view that the conduct of the magistrates was irregular at least, a view which I believe they them selves now share. But I ought not, I think, to decide whether or not that conduct is a violation of the rule,

The Acts enumerated in the second schedule to this Act are and are hereby declared to be Acts consolidating public Acts in force in Victoria on the 31st day of July 1890.

Such consolidating Acts at and from their commencement respectively shall unless and until other provision be made by and in accordance with law apply severally to the persons things and circumstances appointed or created by and existing or continuing under the several corresponding Acts repealed thereby respectively. All such persons things and circumstances shall continue unless and until other provision be made by and in accordance with law to have under the said consolidating Acts respectively the same status operation and effect as they respectively had under the said public Acts in force in Victoria on the 31st day of July 1890, and the several provisions of the said consolidating Acts shall respectively apply to such persons, things and circumstances respectively as if the corresponding provisions of the said public acts in force on the said 31st day of July, 1890 had not been repealed.

Mr. A. H. Davis, shewed cause. The complainant was not entitled to recover. [HODGES, J.-In the case of a wager, is not a person entitled to recover his money back before the event is decided?] Not in every case. The contract in this case would have been good at Common Law, and has not been rendered void by statute. The question is whose agent the stakeholder is. The money in this case was received to abide the result of a lawful sport. The intention of the Legislature is not to prevent such exercises as a lawful game. The Police Offences Act 1890 (No. 1126) Part IV., s. 72, re-enacting s. 51 of the Police Offences Statute 1865, makes wagering contracts null and void, but the section is not "to apply to any subscription or contribution or agreement to subscribe or contribute for or towards any plate, prize or sum of money to be awarded to the winner of any lawful game, sport or exercise." Moreover, the 54th section provides that nothing in Part IV. of the Act is to extend to any person receiving or holding any money or valuable thing by way of stakes or deposit to be paid to the winner of any race, or lawful sport, game or exercise, or to the owner of any horse engaged in the race." Section 54, therefore, amounts to a second proviso to s. 72. It is true that this contention could not have been made before the consolidation of 1890, for the 54th section is a re-enactment of the Police Offences Statute Amendment Act 1872, s. 6, which provided that nothing in that Act should extend, &c. But the gaming sections of both the Police

The facts of this case are similar to those in Batty v. Marriott, 5 C.B. 818, which is an authority in my favour. That case was over-ruled by the Court of Appeal in Diggle v. Higgs, 2 Ex. D. 422, but s. 54 standing in its present position with reference to the grouping of the sections, expressly makes the law what it was thought in Batty v. Marriott, by the Judges of the Court of Common Pleas (Wilde, C.J., Coltman, Cresswell and Vaughan Williams, JJ.), to be, and restores so far as Victoria is concerned the authority of that decision.

He also cited Miller v. Harris, 1 V.R. (L.) 142; 1 A.J.R. 83, 127; Applegarth v. Colley, 10 M. & W. 723; Emery v. Richards, 14 M. & W. 728; Hampden v. Walsh, 1 Q.B.D. 189; 45 L.J.Q. B. 288; Trimble v. Hill, 5 App. Cas. 342.

Mr. Skinner in support of the order.-Section 54 is manifestly restricted to the sections immediately preceding it. Those sections, passed in 1872, were a transcript of the English Statute, 16 & 17 Vict., c. 119, which was aimed at the kind of gaming which had sprung up by the opening of places called betting houses, the owners of which received money on the promise to pay so much upon the events of horse races and the like. Section 54 has therefore no application to so much of the Police Offences Statute

1865 as transcribes the Act 8 & 9 Vict. c. 109. Error has, no doubt, been made in effecting the consolidation. [HODGES, J., referred to the Acts Interpretation Act 1890, s. 32]. That section entirely disposes of the contention raised on the other side.

HODGES, J.: This is an application to review a decision of magistrates at Drysdale which gave judgment for the defendant. The complainant sued for a sum of money deposited by way of stakes with the defendant Harding to abide the event of a certain shooting match between the complainant and one Black. The match did not come off and the complainant elected to ask for the return of the money. I hold that he is entitled to an order for such return. By section 72 of the Police Offences Act 1890 "all contracts or agreements whether parol or in writing by way of gaming or wagering shall be null and void." The present in my opinion is a contract by way of gaming or wagering by one person who engages to shoot against the other for a certain sum. That to my mind is a contract of wagering, and by section 72 is null and void. That being so, the plaintiff is entitled to recover his money from the stakeholder at any time before the event is determined. The plaintiff elected to get it back. was argued on behalf of the defendant that by section 54 it was provided that this part of this Act was not intended to apply to such a transaction as the present. That section re-enacts section 9 of the Police Offences Statute Amendment Act 1872, and, as it stood at the time of the consolidation in 1890, it did not affect the question now in issue. It is urged that, by

It