« EelmineJätka »
Graham Hastings for Mr. Thomas.
Sir R. Biggal ay, Q. C. and F. C. J. Millar for the official liquidator.
Lord ROMILLY said that Mr. Thomas agreed to take 1000 shares on the faith of his position in the company, and that on his position being changed by his resigning the secretaryship, the directors released him from his liability to take the 15 shares still remaining, which he thought they had power to do, and his name must therefore be removed from the list of contributories. Solicitors: G. Freeborn; Jones, Blaxland, and
V. C. BACON'S COURT.
MEINERTZHAGEN v. WALTers.
Gift of residue to wife and children-Advancement to children in lifetime of testator-Hotch pot. THIS was an administration suit in which the testitor, after bequeathing certain legacies, devised and bequeathed all the residue of his real and personal estate upon trust as to one moiety thereof, to pay the income to his wife for life, and as to the other moiety to divide the same among his children. The testator during his lifetime had made consider able advances to his children. The questions now were, whether the sums so advanced were to be taken into account in dividing the moiety of the residue among the children, and whether the moiety of the residue to which the widow was entitled, consisted merely of a moiety of the actual residue.or of a moiety of the residue as increased by bringing into account the advancements made to the children by the testator in his lifetime.
Eddis, QC. and Vaughan Hawkins appeared on behalf of the widow.
Amphlet, QC, Charles Hall, Jackson, Cracknall and Latham, appeared for the children.
The VICE-CHANCELLOR held that the widow was entitled to the income of a moiety of the actual residue only; but that in settling the shares of the children, the sums which had been advanced to them by the testator in his lifetime, must be taken into consideration.
Solicitors: Freshfields; Gregory, Rowcliffe, Rowclife and Rawle; Kimber and Ellis.
Thursday, March 14.
BEAK V. BEAK.
Donatio mortis causa-Gift of cheque and delivery
Amphlett, QC. and W. W. Karslake, in support of the application, submitted that the delivery of the pass book at the time of giving the cheque
constituted it a good donatio mortis causâ.
The VICE-CHANCELLOR held that the delivery of the pass book did not have the effect of making the gift a good donatio mortis causa and that
therefore the summons must be dismissed. Solicitors: Price, Bolton, and Co.; Crowdy, Deane and Chubb.
Friday, March 15.
COOTE v. JECKS.
Assignment of chattels and leaseholds in Scot-
Kay. Q. C. and Batten were for the plaintiff.
The VICE-CHANCELLOR said that the assignment
was to be dealt with according to the law of
Saturday, March 16
March 15 and 16. HICKS v. Ross. Will-Construction - Annuity-Perpetual or for life. THOMAS ROSs, by his will, dated the 25th Ang. 1868, gave, devised, and bequeathed all his real and personal estate to trustees upon trust to pay certain legacies and annuities, the testator then continued, "I also leave the sum of £800 per annum out of the proceeds of the profit of the working of my East Indian estate to be appropriated by my trustees to the maintenance and Isabella Hicks, provided the said children shall exchange the name of Hicks for that of Ross, under forfeiture of the said £800 per annum If any of the should they decline to do so. said children shall die their mother shall have the benefit of the deceased child or children's share or shares. The trustees shall have the power, should anyone of the said children get into debt, to forfeit their share or shares and divide it with the other children. The trustees shall have the power to
Practice-Partition Act 1868 (31 & 32 Vict c. 40)-education of the eight children now alive of Mrs.
Kay, QC. and L. Field, for the plaintiff (the
E. C. Dunn on behalf of the other persons interested, supported the application.
The VICE-CHANCELLOR did not think he would
be justified in making the order asked for, and
Solicitors for all parties: Field, Roscoe, Field and
VYSE T. FOSTER.
Kay, Q.C. and Romer were for the plaintiff.
to produce all the documents in their possession
Solicitors for the plaintiff, Fox and Robinson.
BETTS v. CLEAVER.
IN taxing the defendant's costs of this suit, in
Kay, Q.C. and Eddis, Q.C. appeared in support
The plaintiff did not appear.
The VICE-CHANCELLOR said that the solicitor was entitled to a fee upon every affidavit which he had perused, whether he took an office copy of it or not; and as to the counsel's fee, it also must be allowed, as, under the circumstances, it was only reasonable that three counsel should be employed.
Solicitors: Flux and Co.
sell the East Indian estate should the profits of the working not be sufficient to pay the annuities to the children of Mrs. Hicks;" the proceeds of the sale to be invested in the names of the trustees "for the benefit of the said children." Mrs. Hicks was a daughter of the testator. The question was whether the annuity was intended to be perpetual or for some limited period.
Amphlett, Q.C. and Bush were for Mrs. Hicks' children.
Kay, Q.C. and Terrell for the residuary legatee. Eddis, Q. C., Swanston, Q. C., Nalder, and Housley for other parties.
The VICE-CHANCELLOR said that the testator evidently intended to provide for his grandchil dren, and for that purpose charged all his property with this annuity, which he was of opinion was intended to be perpetual, and the children were therefore entitled to such a sum as would produce an annuity of £800.
Solicitors: Fladgate, Clarke, and Finch; Theo
Wednesday, March 20.
MERRY V. NICKALLS. Transfer of shares-Infant transferee-Usages of the Stock Exchange-Liablility of jobber. PLAINTIFF, in July 1865, was the registered owner of fifty shares in the General Estates Company (Limited), which he instructed his broker, Burnand, to sell. On the 11th July Burnand agreed with defendant, a stockjobber, to sell the shares, and
on the 31st Aug. the defendant, in accordance with the usage of the Stock Exchange, passed on to Burnand a ticket, with name of Edward Richard Lloyd as the person to whom the shares were to be transferred. The plaintiff accordingly executed a transfer of the shares to Lloyd, and the transfer and the share certificates were handed by Burnand to a broker named Allen, who thereupon paid to Burnand £275, as the price of the shares, and £1 7s. 6d. for the stamp. On the 27th Nov. 1866 an order was made for winding-up the company tiff then, for the first time, discovered that Lloyd under the supervision of the court, and the plain
was an infant, and that the transfer of the shares to him had not been registered. A call was subsequently made by order of the court in respect of which the plaintiff was directed to pay £900. He accordingly filed his bill against the defendant, praying to be indemnified against all past and future liability in respect of the call, or otherwise by reason of the plaintiff's name having remained on the register. It was alleged by Allen that he acted in this transaction as the agent of one Hodges, who instructed him to procure a transfer of the shares into the name of Lloyd. It was contended on behalf of the defendant that the plaintiff's remedy (if any) was against Hodges; and that at all events the defendant was not liable, inasmuch as by the rules and usage of the Stock Exchange, the jobber had fulfilled all the obligations required of him when the name of the transferee had been passed, the price of the shares paid, and the deed of transfer accepted by the broker acting for the buyer.
Eddis, Q.C. and Horace Davey, for the plaintiffs. Higgins, Q.C. and Buchanan, for the defendant.
The VICE-CHANCELLOR held that the case was governed by Rennie v. Morris (25 L. T. Rep. N. S. 862), and that the defendant was not liable to indemnify the plaintiff. The bill was accordingly dismissed without costs.
Solicitors: W. A. Crump; Morley, and Shirref
V.C. WICKENS'S COURT.
vation of mines and minerals in a conveyance from the Duchy of Cornwall, and whether, if it were so included, the kaolin could be so worked as to destroy the surface under which it lay. The conveyance, after granting the land, contained an exception or reservation "unto his Royal Highness the Prince of Wales, his heirs and successors, Dukes of Cornwall, of all mines and minerals within and under the land;" and further reserved a right to his Royal Highness, his heirs and successors, and his and their lessees, their agents and workmen, to take, use, and work the excepted mines and minerals. In 1854 the duchy, under the reservation of mines and minerals, granted a lease of tin and china clay. In 1857 the defendant purchased the whole of the manorial rights ofthe duchy in the property, including the rights under the revocation, and since that time he had worked the china clay in question, first on a moor adjoining the plaintiff's land, and afterwards he extended the workings into the plaintiff's property. Thereupon the plaintiff instituted this suit to restrain him. On behalf of the plaintiff it was contended that china clay was not a mineral within the meaning of the reservation, and that if it were, the reservation did not confer a right to work it so as to destroy the surface. For the defendant, on the other hand, it was insisted that china clay was a mineral, and that, having regard to the fact that the customary mode of working mines in the neighbourhood, at the time of the grant, was wholly destructive of the surface, the right to work reserved by the deed carried the right to destroy the surface in so doing if
Sir Roundell Palmer, Q.C., Eddis, Q.C., and Boger, for the plaintiff. The Solicitor-General, Karslake, Q.C., and Phear, for the defendant.
The VICE-CHANCELLOR decided that the china clay was ineluded in the reservation of mines and minerals, and dismissed the bill with costs.
Solicitors: S. T. Gill; Bell, Brodrick and Gray, for Beeves and Boger, Stonehouse, Devonshire.
Thursday, March 14.
THE METROPOLITAN BOARD OF WORKS v. THE MARQUIS OF SALISBURY. Thames Embankment Act 1862, s. 62-Compensation-Arbitration-Action at law - Suit in equity-Election-Injunction.
THIS was a motion for an interim injunction to restrain the Marquis of Salisbury from proceeding with an action at law to recover from the Metropolitan Board of Works a sum of £10,645. By the Thames Embankment Act 1862, s. 62, full and free rights of communication and access and egress at all times to and from the land reclaimed by the commissioners were reserved to the marquis, his heirs and assigns, and his and their lessees and tenants of houses in Cecil-street and Salisbury-street. Shortly after the embankment had been proceeded with the marquis, in pursuance of the above reservation, claimed a right to a carriage way across it. Certain matters in dispute between the marquis and the Board of Works were referred to arbitrators, who awarded to the marquis the abovementioned sum as compensation; the question, however, of the carriage way was not directly submitted to the arbitrators, but the 62nd section of the Act was considered by them. The carriage way had not been made for the marquis, and he now insisted that compensation with respect to it had not been included in the award of £10,645, and that he was entitled to sue at law for it. With that view he had commenced an action. Previously, however, he had instituted a suit, which was still pending, to compel the Board of Works to make the road. Hence this motion. In support of the motion it was urged that compensation for the claim of the carriage way had been included in the award, but in any case it was inequitable to sue the Board of Works in Equity for the carriage way and at law for the value of it,
as not awarded. The board were entitled to an injunction, but at all events the marquis must elect whether he would continue to proceed at law or in equity.
Greene, Q.C., and Charles Hall for the motion. Eddis, Q.C. and W. W. Karslake contra. The VICE-CHANCELLOR granted the injunction, but ordered the Board of Works to pay into court a sum representing that awarded, with interest. Solicitor for the Board of Works, William Wyke
Solicitors for the Marquis of Salisbury, Nicholson and Herbert.
Monday, March 18. ATTORNEY-GENERAL AND COLBECK, AND MARRIOT V. THE MAYOR, ALDERMEN, AND BURGESSES OF BATLEY.
Municipal Corporation Act (5 & 6 Will. 4. c. 76)– Purchase of chain for mayor out of borough rates-Motion to restrain purchase-Jurisdiction -Injunction.
THIS case, which was heard on the 29th ult., on
demurrer (Vide "Notes of the Week," March 9th), now came before the court on a motion on behalf of the Attorney-General and relators for an interim injunction. The object of the suit was to restrain the mayor, aldermen, and burgesses of the borough of Batley from purchasing a chain and badge for the mayor out of the borough rates. The terms of notice of motion were that the mayor, aldermen, and burgesses, their council, treasurer, officers, and agents, might be restrained by injunction from purchasing or otherwise providing out of the borough or district rates, or out of any other rates levied or to be levied for public purposes within the borough. The chain and badge in question, or any similar or other decoration for the present use or adornment of the mayor for the time being of the borough. The arguments principally turned on the Municipal Corporation Act (5 & 6 Will. 4, c. 76), the 92nd section of which enacts that all corporate property shall be brought within the borough fund, and then enacts how the money shall be applied. First, to the payment of debts contracted previously to the passing of the Act; then to the payment of the salaries of the borough officials, the costs of prosecutions, the maintenance of the borough gaol, and the payment of constables. The statute then goes on to say, "And all other expenses not herein otherwise provided for, which shall be necessarily incurred in carrying into effect the provisions of this Act, and in case the borough fund shall be sufficient for the purposes aforesaid, the surplus thereof shall be applied, under the direction of the council, for the public benefit of the inhabitants and improvement of the borough." A preliminary objection was taken on behalf of the defendants that the proper tribunal was the Court of Queen's Bench, and the proper remedy a writ of certiorari.
Greene, Q.C. and W. Barber for the motion.
The VICE-CHANCELLOR granted the injunction. Solicitors: Ridsdale, Craddock and Ridsdale, for Chadwick and Son, Dewsbury; Edward Layton and Jaques.
COURT OF PROBATE.
foreigner born made abroad-English domicil acquired-Probate. THE deceased was born in Saxony, but lived in London, carried on business there, and became a liveryman of several companies. property in England, and invested it in British He acquired undertakings. Late in life he became afflicted with rheumatic pains, and bought a residence in Savoy, where he died, having made a will before the British consul at Geneva according to the British law.
Bayford now moved for probate of this will, and read affidavits that the deceased had always regarded England as his home, and meant to
The COURT made the grant.
SHEPPEARD v. BEETHAM AND OTHERS. In the Goods of C. A. READ, deceased. Next of kin subpoenaed to give evidence as to the condition of the family. THE plaintiff propounded the will of Cordelia Angelica Read, late of Stamford-street, Lambeth, in the county of Surrey. They cited all the next of kin within their knowledge, and inserted advertisements calling on all persons interested to appear. The defendants were first cousins of the testatrix, and entered an appearance but took no further steps. A summons was taken out by the plaintiffs, calling on the defendants to file the usual affidavit of scripts, whereupon the defendants' solicitor attended in chambers, and stated that they withdrew from further proceedings. The defendants were the first cousins of the deceased, but all members of the family, and the deceased was the daughter of one of ten or eleven brothers and sisters. The plaintiffs were anxious that all the next of kin should be cited; and
Searle now moved on their behalf for a subpoena on the defendants, under the 24th section of the Probate Court, calling on them to appear before one of the registrars, to be examined as to the condition of the family.
The COURT made the order under the condition that the parties should receive all their reasonable expenses.
Attorney, A. J. Sheppeard.
In the Goods of GRIFFITH. Two testamentary papers.—The latter revoked the bequests in the former, but no mention in it of executors.-Probate granted of both. G. D. GRIFFITH, of Bellan, in the county of Pem
broke, died 12th Feb. 1871, leaving two testamentary papers, duly executed. The first was in the following terms:
This is the last will and testament of me, G. D. Griffith, of Berry-hill, in the county of Pembroke. I give and devise all my real and personal estate to my and to their heirs and assigns for ever. brother-in-law, James Bowen, and Dorothea his wife, said James Bowen the sole executor of this my will I appoint the and testament. As witness my hand this 31st Jan. 1857, J. D. GRIFFITH. Witnessed by us in the presence of each other, JANE BOWEN, CAROLINE JAMES.
terms: The second document was in the following
This is the last will and testament of me, G. D. Griffith, late of Bellan, in the county of Pembroke, I give and devise to my niece Anna Maria, the daughter of my late sister Easter, the wife of Benjamin Evans, the sum of £1000; to my sister Dorothea, wife of James Bowen, the mainder to my little niece Ellen. sum of £200, to my niece Maria £100, and all the rehave something; and I hope I shall be buried at Nevem, I hope Daniel will in the county of Pembroke.
15th June 1857.
J. D. GRIFFITH. DANIEL MATTHIAS. HENRY DAVIES.
Contentious proceedings were commenced to set aside the will, but they were ultimately discontinued, and all parties entitled in distribution had signed an agreement to allow probate to be taken of the two papers.
Searle accordingly moved for probate.
The COURT.-But the second paper revokes the first.
Searle.-The appointment of executor in the first is not revoked, and to that extent it will stand. He referred to In the Goods of Leese (2 S. & T. 442); In the Goods of Graham (3,S. & T. 70). The COURT.-That is so. You may take pro
bate of both papers.
LEGISLATION AND JURIS-
HOUSE OF LORDS.
LORD WESTBURY asked the noble and learned lord on the woolsack whether he would have any objection to lay on the table of the House the letters written by learned judges to the Judicature introduce his Bill for the establishment of a new Commission; also when he would be prepared to Court of Appellate Jurisdiction. The LORD CHANCELLOR said that the correspondence to which his noble and learned friend alluded had ture Commission, and had been made considerable been placed before the committees of the Judicathe Commission, four sets of remarks drawn up by use of by them. He had obtained, as returned by learned judges. The others he had not as yet received. The communication of the Lord Chief Justice was a full and copious one, and there were communications of some length from judges of courts of equity as well as from judges of courts of common law. He had applied to one of those learned judges to know whether he had any objection to the production of his remarks. The reply was that on principle the learned judge did not want them produced, because he thought that the freedom with which such communications were made from time to time would be interfered with if they were afterwards produced. He must say that to a certain he shared in the feeling thus exHe understood from his noble and pressed. learned friend that the Lord Chief Justice had no objection to the production of his opinions, and if that were so there would be no difficulty in laying them on the table. If his noble and learned friend desired it he would apply to the other judges to know whether they had any objection to a similar course being adopted in the case of their opinions, On Thursday next he would make a statement on the subject of the Bill for the establishment of a new Court of Appellate Jurisdiction.
Tuesday, March 19.
LAW BILLS AND APPEALS.
Lord CAIRNS, in order to prevent any misunderstanding as to what had been said by his noble and learned friend on the woolsack last night, and also on a former occasion, wished to make one or two observations. Out of doors there was an impression that his noble and learned friend had
submitted his Bill for a New Court of Appellate Jurisdiction and other law Bills to the Judicature Commission, and that they had been considered by a committee of that commission. Now, as a member of the commission, he knew that no Bill had been submitted to it by his noble and learned friend, and, consequently, no Bill of his noble and learned friend could have been referred by the commission to a committee of its members. There was no responsibility on the part of the commission in respect of any Bills introduced by his noble and learned friend. He wished to call attention to another error into
which he believed his hon. and learned friend had
fallen. It had reference to the appellate business should be obtainable in England, Scotland, and
HOUSE OF COMMONS.
Mr. DODSON rose to move the following resolutions:-" (1.) That, in the opinion of this House, the system of private legislation calls for the attention of her Majesty's Government, and requires reform. (2.) That it is expedient to substitute, as far as possible, an extended and improved system of provisional orders for local and personal Bills. (3.) That provisional orders
never consent to part with its right of finally con trolling every branch of its legislation. (Hear, hear.) He wished to keep on the safe side, and to say that in the suggestions which he was about to make he had no intention whatever to urge that House to part with any of its jurisdiction over its own legislation. He merely proposed that it should consent to remit its own original jurisdiction to a specially organised tribunal, with a view of arriving at a more speedy, satisfactory, and economical mode of proceeding with its private Bill inquiries, whilst reserving to itself the ultimate control over all matters appertaining to such legislation. (Hear, hear.) Assuming, then, that the House would concur in this arrangement as forming the original basis of his plan, the ques tion that next arose was, to what external tribunal should this original jurisdiction be remitted? If provisional orders were to be applied generallyto all matters great and small-they must be made by the members of a tribunal who would command the confidence both of the House and the country generally. (Hear, hear.) They ought to be made by persons who would afford all parties concerned an opportunity of being heard, either by themselves or counsel, and make them feel assured that their case had been thoroughly sifted and adjudged by the one common tribunal. (Hear, hear.) Now he did not think that the common law judges would be willing to undertake the duties of such a tribunal. And even if they were, it appeared to him that there could not be found amongst thom the elements best constituted for such a tribunal, inasmuch as the whole habit of their mind was to adhere as strictly as possible to mere precedent. He was of opinion that they ought to have a tribunal composed of men, not only possessed of great legal ability and experience, but of men who would be inclined to make ample allow ance for the variations of public feeling and of public opinion which from time to time took place. (Hear, hear.) If provisional orders relating to all matters great and small connected with private Bills were to command general concurrence, they ought to be made by tribunals composed of men of much greater weight and disposition to accommodate their minds to the altered circumstances of the time or case than the judges of the land. Where did they look for their judges? They looked to the eminent leaders of the bar. And to them would he also look for the men who he believed would be fully qualified to act upon the tribunals to which he referred. If we selected men of great legal experience and ability to form the tribunal for the special business which they would have to inquire into, he did not think there would be any danger of that tribunal making itself obnoxious to the public by its falling into the habit of following precedent, and thus making itself in one sense an obstruction to the progress of the Bills remitted to their consideration. This tribunal might be appointed to sit in Edinburgh, London, and Dublin. Indeed, he submitted whether it might not be so constituted as to enable it to go circuit, to visit such large and important cities as Glasgow and Liverpool, and to conduct the particular inquiries committed to its care in any locality which might be deemed most convenient, economical, and generally satisfactory to all the parties immediately concerned. (Hear, hear.) There were some exceptional cases of private Bills involving new principles-such as patents-in re spect to which neither the public nor the parties concerned would probably feel satisfied with the decision of the one or two judges constituting the sim-tribunal that was deputed to try the matters involved. In such extraordinary cases there might be a power given of carrying the inquiry before another tribunal better qualified for the consider ation of all such questions. The tribunal might be constituted of one, two, or three members, according to the character and importance of the Bills to be submitted to its jurisdiction. (Hear, hear.) He suggested that all provisional orders of that kind, whether granted or refused by the tribunal, should be laid on the table of the House, in order that it should not be possible for it, either by falling into error or bias on the part of the members, to have it in its power to suppress some new invention or prevent schemes of a novel character, embodying new ideas, being submitted to the Legislature. The tribunal would have to decide on all questions now dealt with by the referees as to the locus standi of the parties. According to the best calculations he had been able to make on the classification he had suggested, it appeared to him that three judges or commissioners, sitting for nine months in the year, would amply suffice to discharge all the work now performed by the committees of the two Houses, the referees, and examiners of private Bills. The commission would form one tribunal, and their jurisdiction would extend over the whole of the United Kingdom, and they would have to visit every part as they were required. After analysing the private Bills presented to Parliament he found there was not sufficient business from Ireland and Scotland to justify a separate commission or tribunal, and, therefore, there would be more harmony in the
decisions and in the proceedings of one tribunal sary, could be appealed against to a joint select than there would be in three. The men who com- committee of both Houses of Parliament. He posed the tribunal should not be one whit inferior hoped that under such a change the country in calibre to the judges of the land, and, therefore, would be more cheaply and satisfactorily served provision must be made for their salaries on a pro- than at present; and Parliament would gain two portionate scale. The promoters of private Bills advantages. It would relieve itself from an impaid in fees from £50,000 to £130,000 or £140,000 mense amount of work which, with all due reper year, of which the Chancellor of the Ex-spect to hon. members, they were not the best chequer had the benefit. There was, therefore, a qualified to perform (hear, hear), and it would fund amply sufficient to provide for the expenses also give more time for the transaction of public of an efficient tribunal, and he thought that those business, which was yearly increasing. He had who were called on to pay such heavy fees were not attempted to anticipate objections which entitled to claim of the Chancellor of the Exchequer might be urged to the scheme, and he submitted and the Government that they should in return to the House that the point for their consideration be provided with the cheapest and most efficient was not whether there were objections to it that tribunal. (Hear, hear). The nearer home the inquiry could or could not be answered, but whether took place the cheaper it must be, but there would there were not greater objections to the be, of course, exceptional cases, where eminent present state of things. He laid no claim to counsel would have to be brought down, and any merit of originality, except in one instance, scientific witnesses would have to be summoned, because similar schemes had been suggested in which the expenses would be greater in the pro- by Lord Grey. Lord Salisbury, the present Chanvinces than if it were held in the metropolis, but cellor of the Exchequer, Sir Erskine May, and by they were not to legislate for exceptional, but for Mr. Rickards, the Speaker's counsel. Select com. general cases. It would be at the option of the mittees had sat and reported until the shelves of parties to have their cases tried in the provinces the library groaned under their reports on the or in London. There would be an appeal from subject of private legislation, but very little alterthe tribunal to a joint committee of the two ation had been the result. If another select comHouses, whereby there would be secured a better mittee were appointed they could take no fresh tribunal than at present, and, in the next place, evidence, and therefore the only new suggestion the parties would be saved the risk and trouble of he would make was that if the matter was to be carrying their Bills through both Houses of Parlia- dealt with, it should be dealt with by several comment. The number of private Bills annually con- petent minds, and therefore he suggested the tested in both Houses was from forty to sixty, and appointment, not of an ordinary committee to take supposing that to be the annual number of appeal evidence, but a committee who, if they had the cases they would furnish work for eight or ten will, had the power of effecting a reform, namely, joint committees, and the whole of the private a Government committee. (Hear, hear.)--Mr. legislation of the House would be discharged by GREGORY was favourable to the resolutions of some twenty or twenty-five members of each the hon. gentleman as a whole. He thought. House, instead of as now by from 180 to 250. The however, that it would be to the public interest if House very seldom questioned the decisions of its the present arrangement of double committees were own committees on private Bills, and he appre- continued, so far as the consideration of questions hended they should treat the decision of the new of railway amalgamations was concerned.- Mr. tribunals with as much respect as they now did BOUVERIE said the scheme of his hon. friend the select committees. He would make the appeals was so important and elaborate that the House a matter of right, leaving it to the risk of incurring would scarcely be prepared to come to any decision unnecessary costs, so as to prevent them being until they had taken time to consider the details unduly made, but at the same time knowing there of it. (Hear, hear.) For his own part he was was a strong feeling against leaving appeals to unwilling to commit himself absolutely either in the discretion of the parties concerned, the favour or against the scheme, though at present appeals should be subject to one condition, that of he was certainly disposed to give it his approval. having a short summary appended of the reasons without entering into the various arguments of on which the decision of the external tribunal was his learned friend, or the objections that might be based. That would go before the standing orders suggested in opposition to part of the scheme, he committee, or some corresponding committee, who might remark that one strong objection generally would report if a prima facie case had been made put forward on this question was that a perout, and just as the House now almost invariably manent tribunal, like the one now proposed, affirmed, the reports of the standing orders com- necessarily wanted the flexibility offered by mittee on special subjects, so the House would the House of Commons, since it would be acquiesced in the reports that in the committee's guided and bonnd almost exclusively by precedent. opinion a prima facie case had or had not been (Hear, hear.) He should regret to see any tribunal disclosed for an appeal. The present fashion. of established which should be of so inelastic and inpassing provisional orders was a very cumbrous flexible a nature that it would not review its own and inconvenient one, and instead of their being decisions. (Hear, hear.) If the House would now made by the departments or by the new tribunal, agree to the adjournment of the debate, which he should be laid on the table of Parliament, and moved, his hon. friend might have the opportunity if not petitioned against, or an adverse motion of embodving his proposals in a Bill. (Hear, made, they should be held to have received the hear.)--Colonel W. PATTEN thanked the learned assent of the House. He thought it would be gentleman for the pains he had evidently taken in expedient to leave to the Government and the de- the preparation of these proposals, and for the partments for the present the powers they possess admirable way in which he had submitted them to of making provisional orders. It was a singular the House. The time had certainly arrived when circumstance that although the procedure by some change ought to be made. During the last application to the departments was a shorter and few sessions the difficulty which hon. members cheaper one, there was an inconceivable preference experienced in attending committees upstairs had to apply to this House by Bill. (Hear, hear.) He been greatly increased by the length of the debates did not propose to interfere with the jurisdiction in the House, which occupied so much of the of the Inclosure Commissioners. With regard to attention of members during the night that they Ireland, the Lord Lieutenant in council, or the found themselves greatly indisposed to attend any Chief Secretary, was the department for granting committee in the morning. He concurred in the provisional orders for Irish tramways or for local motion of the right hon. gentleman opposite, as government towns in Ireland, and he thought it the House required time to consider the proposals. would be advisable and convenient that the pro- (Hear, hear.)Mr. SCLATER-BOOTH also wished visional orders for Irish railways, gas, and water to thank his hon. friend for the boldness with works should be transferred from the Board of which he had brought forward his scheme; and Trade to the Lord Lieutenant and the Chief Secre- although he was not prepared to criticise it at tary for Ireland. He could not make a similar sug-present, he should we willing to support at least gestion for the benefit of Scotland, because there was no corresponding authority in Scotland to whom the duty of granting provisional orders could be transferred. For the present, therefore, Scotland must rest satisfied with applying to the external tribunal when holding its sittings in Scotland. There remained another class of bills in contradistinction to local and personal bills, such as estate bills, divorce bills, and naturalisation bills. They rarely exceeded ten or twenty in a session. They were seldom opposed and did not take up much time, and with them he did not propose to interfere. They would have to be dealt with by extending the powers of the Settled Estates Court, the Divorce Court, and the powers of the Home Office. And if the scheme he suggested were adopted no such thing would remain as a local and personal act. Everything would proceed by provisional orders, obtained on application in many cases to the Government department as now, and in others by application to the external tribunal, who would hear counsel and witnesses in open court, and afterwards, if neces
two or three out of the four resolutions. In some
Lord BURY asked the Attorney-General whether his attention had been directed to the subject of statutory declarations, and whether he was wil ling to introduce such amendment of the law as
would render statutory declarations less liable to
satisfactorily. His noble friend had asked him
THE COSTS OF CRIMINAL PROSECUTIONS.
Sir M. LOPES rose to call attention to the system of late years adopted by the Treasury with respect to disallowances for criminal prosecutions in counties, cities, and boroughs, and to move "That it is desirable that the Home Office should draw up such an uniform scale of fees and allowances for general use as shall ensure the efficient administration of justice, and that all such expenses hereafter incurred shall be wholly defrayed by funds appropriated for this purpose by Parlia ment." He said the recent decision of the highest authorities of the realm had not tended to allay the discontent which had prevailed in this matter; and his justification for bringing the subject up was that the Court of Queen's Bench, though fully admitting the illegality of the practice of which he complained, decided that they were incompetent to remedy it and recommended an appeal to Parliament. The question concerned both counties and boroughs, and it was neither of a party or political character, for Governments on both sides of the House were implicated in it. In 1826, by 7 Geo. 4, it was made incumbent on quarter sessions to pay all costs of criminal prosecutions, and when taxed by the officers of the court the treasurer of the county had no option but to pay them without remedy or redress. The law remained much the same now as to payment, but the source from which it was contributed was altered. By an Act of 1835, Mr. Spring Rice, on the recommendation of a select committee, pro
posed that one-half of the costs should be paid by the Consolidated Fund, and a vote was taken of £110,000 for that object. In 1846 Sir R. Peel proposed, as a slight boon to the agricultural body, that the other half should be transferred to the Government. That was an honest and an honourable compact, which had been infringed and in a great degree repudiated. (Hear, hear.) In 1851, by the 14 & 15 Vict., the Secretary of State took powers to make such regulations with reference to the fees, and in 1858 these regulations were made. In 1857 the Treasury appointed the criminal examiners. The gentlemen sitting in Spring-gardens took it upon themselves to review the auditors of the courts though they knew nothing whatever of the circumstances. (Hear, hear). After these regulations came into force the costs were reduced. The expenses when paid wholly by the counties were £250,000 annually, but subsequently they had been cut down to £150,000. No doubt the examiners had corrected many abuses, but they had exercised their powers in an arbitrary and capricious manner. Among other things, they were constantly making fresh regulations, without giving the counties any previous intimation, and on the most frivolous pretexts they made these disallowances. Not the least part of the hardship was that, whereas the counties and boroughs were obliged to pay on the nail, the Treasury allowed a period of between two and three years to elapse before reimbursing. (Hear hear). By returns which he had moved for last session, he found that these disallowances for the last six years averaged 6 per cent. in the English counties, and 11 per cent. in the Welsh counties, while in the English boroughs they were upwards of 11 per cent. The total expenses came £110,000, from which the disallowances were £78,000, or an average of £13,000 a year. Now, was it worth while on the part of the Government to create such wide dissatisfaction for such a sum? He had no hesitation in saying that it was an act of petty larceny (cheers and laughter), and the amount saved scarcely paid the expenses of the examiners for their staff and offices. They were obliged to make themselves vexatious, active, and fussy, to show that they had something to do, and they were paid for being disagreeable (laughter). But a more serious matter was that these burdens impeded the true administration of justice. There was often great difliculty experienced in inducing parties to prosecute, many being anxious to escape the expense. It was rather a significant fact that out of between 50,000 and 60,000 commitals there had only been between 13,000 and 14,000 convictions. The examiners had endeavoured to cut down and reduce the expenditure simply to the cost of the prosecutors, whereas they were intended to comprise the whole cost of the prosecutions. He had presented a petition from his own county and would mention, out of the many hardships the petitioners detailed, this one. Some years ago an arrangement was made with the clerk of the peace to pay him a salary instead of the fees attached to his office. That salary was, of course, calculated on the fees which he had been in the habit If receiving. He had received a fee of 16s. for the cost of prosecutions, witnesses, and recognisances. on 1859 the clerk of the peace went to the examiners and they confirmed that fee. On being appealed to, one of the examiners said he could not tell why they had repudiated that arrangement. The fee of 16s. had been cut down to 4s., and the ratepayers were obliged to pay the difference. That was a great hardship, but it was not the only one. The ratepayers had to pay between £600,000 and £700,000 for the cost of the administration of justice. They were paying that as one class of the community only, whilst the only boon that had been given to the agricultural interest, to the ratepayers, since 1847 was that given by Sir R. Peel amounting to £75,000, and he thought it very hard that the Government should attempt to minimise that sum in the way they were now doing, (Hear, hear.) Last year the right hon. gentleman opposite had stated that he (Sir M. Lopes) had not compared the very large concessions made by Sir R. Peel with the small additional burdens which had been placed on the rates. Now, in 1847 the whole amount raised by local taxation was £7,000,000, whilst in 1870 it was £12,000,000. In 1817 the whole amount of the county rates raised by the poor rate assessment was £1,300,000, whilst in 1870 it was £2,600,000. (Hear, hear.) There was scarcely a county or borough in which the magistrates at quarter sessions had not taken the matter into their serious consideration, and presented petitions on the subject. On a recent occasion a case came before the magistrates of Lancaster, who tried to obtain a mandamus in the Court of Que n's Bench to enforce the payment of these disallowances by the Treasury. The Court of Queen's Bench was unanimous in declaring that the conduct of the Treasury was unjust and indefensible; that it was at variance with the words and terms of the Appropriation Act; that they did not give their decision on the merits, but must treat the matter as one of privilege. (Hear, hear.) Now, he was as loyal a man as any hon. member
of the House; but he confessed that when he heard the words " prerogative" and "privilege" they grated on his ear, and any one who used the words to shelter and shield himself from the consequences of neglecting some duty which ought to fall upon him, was not doing his best to uphold the most excellent monarchial institutions which we at present enjoyed. (Hear, hear). The question was treated by the judges as one of privilege. The Lord Chief Justice said, "It seems a most anomalous and monstrous thing that when a court before which a criminal prosecution is tried thinks it necessary in the due administration of justice to order certain expenses to be incurred, to have two gentlemen sitting somewhere in Spring-gardens to override the authority of the court itself and disallow expenses which have been directed to be incurred." Mr. Justice Blackburn said that the Treasury were bound to pay the warrants taxed by the officers in the various counties, and that they were, in fact, to indemnify the counties and reimburse to them all the sums they paid. Mr. Justice Mellor thought the Treasury had no right to review the taxation when made by the proper officer. Mr. Justice Lush was of opinion that the Appropriation Act required them to pay all the costs taxed and allowed by the proper officer. Now, he thought thera would be no difficulty in having a uniform scale of fees for general observ. ance, and that they ought not to be cut too fine if they wanted not to impede the course of justice. There was one thing that ought to be done immediately, and that was to do away with the Act of 7 Geo. 4, which made it incumbent on the treasurer of the magistrates to pay these fees first. He thought there should be no intervention -that the Treasury should send down their officers, who would be at liberty to apply to the judge on the spot. He was as great an advocate of genuine economy as anyone, but he was opposed to pettifogging and pernicious parsimony. (Cheers.) The one was salutary, but the other defeated its own object. He now submitted his motion to the House, confident that although the Court of Queen's Bench felt incompetent to deal with the matter, and had therefore recommended that it should be brought before a higher tribunal, the House of Commons would tell the Government that they ought to discontinue a practice which was unsound, impolitic,and unjust. (Cheers.) -Mr. MAGNIAC, in seconding the motion, said he considered it the duty of the Government to provide sufficient means for the due administration of justice. If ever there was a case in which the country ought to provide such means, it was in the case of the unpaid magistrates-a body of men who performed their duties without fear or favour, although in many instances without appreciation. He wished to clear the ground of a misapprehension which existed, by saying at once that he did not question the right of the country to tax the costs in question, but he contended that they ought to be supervised by proper authorities. When he put a question the other night to the Secretary of the Treasury on this subject, the reply of the hon. gentleman seemed to amount to an ad captandum appeal to the economic principles of hon. gentlemen below the gangway (hear, hear, and laughter), and stated that he would attend to the matter with a due regard to the interests of the ratepayers. That answer was a proof that the hon. gentleman was little acquainted with the subject-that he thought it his duty to protect somebody, and therefore mentioned the ratepayars. The answer was certainly more sharp and argumentative than the case required. The case was simply this. It was the duty of certain persons to prosecute. They were bound over to do so, and had no option in the matter. The expenses were supervised and taxed by an officer who was appointed under an Act of Parliament, the words of the Act being "the proper officer of the court." The certificate of that officer was final, and he was required by the Act to issue it. Upon that certificate the treasurer of the county paid the amount, and the ratepayers had no control over the matter. That certificate was handed to the treasurer of the county, who forwarded it to the Treasury, and then occurred this extraor dinary circumstance: Two gentlemen living in a pleasant residence in New-street, Spring-gardens, whose establishment cost £4000 a year, exclusive of some £200 for rent, occupied themselves inostensibly supervising £148,000 a year, but he be lieved they were chiefly occupied in rectifying mistakes of local officers on matters of fact of which they had no earthly knowledge whatever. (Hear, hear). This was altogether an anomalous state of things, and but that this was an eminently conservative country, the abuse would long since have been swept away. (Cheers). Proper officers appointed by Parliament taxed the costs, and then they were handed over to improper officers to revise. (Hear, hear, and laughter). The amounts which they deducted might be bought too dearly. There was an unwillingness on the part of many persons to prosecute, they being put to expense, and the administration of justice had by this means been greatly crippled. He had been told
by an hon. friend sitting on the Treasury bench that the travelling expenses of a railway porter had been disallowed because the gentlemen in New-street were of opinion that he ought to have had a free pass (laughter); but they did not take the trouble to inquire whether he was travelling on a railway with which he was connected, or whether, not being travelling on the business of the railway, they would give him a free pass. There was another point to which the hon. member for Devonshire had not referred, and that was the extreme injustice to the ratepayers caused by the delay in settling these accounts, for frequently they were not settled for months. That was a state of things which ought to be remedied at once. This was by no means a party cry, for there were members of quarter sessions on both sides of the House. As magistrates in their own counties they ought to be the defenders of the rights of the ratepayers. He recommended the consideration of this matter to the serious attention of the Government. If it were handed over to the Home Office he should feel more at ease, because there were principles in operation at the Treasury which were not conducive - he would not say to justice-but he would say not in accordance with the general feeling of the country. (Hear, hear.) He thought the Home Office would look at the matter in a different light, and would say that the first thing was to see that justice was properly administered. (Hear.) He hoped and expected that the right hon. gentleman would give such an answer that at Easter hon. members would be able to inform their constituents that those anomalies which were causing a vast amount of irritation would speedily be put an end to. (Hear.) He advocated most strongly one uniform table of fees as a means to stop further dissatis faction, and he trusted that the Government would support his Bill. He appealed with confidence to the Government to put an end to the arbitrary reign of the gentlemen in New-street. (Hear, hear.)- - Mr. BRUCE said this was a very old grievance. (Hear, hear.) It was not chargeable to the present or to any other administration in particular, for he could remember that twenty years ago, when he took an active part in public business in his own county, he had to represent their grievances to the Home Office. He sympathised with much that had been said on the subject, and having looked into the matter with the desire of finding a satisfactory solution of the difficulty, he was bound to say the inquiry had revealed a great deal that was unsatisfactory. (Hear, hear.) A satisfactory solu tion must be found, but he was bound to say that he was not fully prepared to indicate what the ultimate solution would be. (Hear, hear.) These payments were, as every one knew, formerly charged on the rates, but in 1836 the Treasury undertook to pay one-half, and in 1846 Sir R. Peel relieved the local rates of the whole cost, and the immediate result was a very rapid increase in the costs of prosecutions, and in consequence examiners were appointed to revise the payments. Much had been said, though in a contemptuous tone, of economy, which was not justified in reference to the results. It might be that now, when the changes were better understood between the country and the Treasury, the reductions were not very considerable in amount. At first it was so, and it was difficult to say what the result would be if the superintendence of these gentlemen was altogether withdrawn. The costs of prosecutions in 1852 were £249,753, which by rigid examination were reduced in 1858 to £128,000, being a reduc tion of £121,000, and from that time to this they had been annually about £150,000. The reduction had been made by the gentlemen in London, and no doubt in many cases under circumstances of hardship-(hear)—and all the more so that by no possible care on their part could they have escaped the reductions that had created a sense of grievance throughout the country. There were inherent difficulties in the subject, and if the Home Office were to settle a scale of fees and allowances it would not settle the whole question, because the grievance was not whether the fees and allow ances were proper, but whether a witness ought to have been called on the preliminary examina tion and bound over to give evidence, to which no uniform scale could apply. Then, again, was the difficulty of framing a scale of allowances to be paid to attorneys and counsel. It was, in fact, absolutely impossible for any department to frame a proper scale of allowances suitable to all circumstances. (Hear, hear.) Such, for instance, as the number of witnesses necessary to prove a case, and the time necessary for trying the case. (Hear, hear.) He had been in communication with the Treasury on the subject, and he could assure the House that the Government were anxious to arrive at a solution of the difficulty by such a scale, but it appeared to him it would not answer the purpose, and that it must be looked for elsewhere. Another difficulty was that the taxing officers of the court were not officers of the Treasury, but officers appointed by the judges and by the justices (hear, hear)-who performed