« EelmineJätka »
society we to raise by subscription of the members a fund out of which to make advances to members upon security of estates by way of mortgage.” Advances are made to members and to members alone, and the society transacts no business other than the receipt of money from some persons and the lending out of it to others. The members of the society are those persons who hold one or more shares, or one or more fifth parts of a share in the society, the shares being divided into two classes--investors' shares (which are either subscription or paid-up shares) and borrowers' shares. The members are thus divided into “ investors” and “ borrowers," and there is also another class—who are not members—“ depositors," namely, those persons who lend money to the society on deposit, and who are entitled to receive interest at rates from time to time varied. The “ investors” are members who invest capital in the society, upon which they obtain interest, and which capital is used in making loans to the other class of members, the "borrowers," who are those members to whom money is advanced by the society upon the security of their properties. A borrowing member pays interest on his loan, but such interest is not paid separately, but is mixed up with repayments of principal. The society thus pays interest to its investing members and to depositors, and receives interest from the borrowing members, and, to provide a fund for the expenses of carrying on the society, the interest charged to borrowers is at a slightly higher rate than that received. This surplus of interest affords the necessary amount to carry on the business, and a surplus accumulates out of this fund beyond that which is necessary for carrying on the business, and this surplus is from time to time divided among the members. It was this surplus which it was now sought to charge with income tax. For the society it was contended that this sum was not chargeable as profits or gains under schedule D., and was not “ yearly interest.” The commissioners found as a fact that part of the instalments paid by the borrowers consisted of interest, which is the subject matter of the assessment, and they confirmed the assessment, being of opinion that, though the society did not carry on trade, the interest received by them was chargeable. Held, that all sums received by the society by way of interest on the mortgages were taxable under schedule D., but that such sums were not “ yearly interest,” and were not taxable as such. Judgment for Crown.
[Leeds Permanent Benefit Building Society v. Mallandaine. Q. B. Div.: Wills and Grantham, JJ. April 9.–Counsel: Sir R. Finlay (S.-G.) and Danckwerts ; Sir E. Clarke, Q.C., Dicey, Q.C., and Lord R. Cecil. Solicitors: The Solicitor of Inland Revenue ; Torr and Co., for
Middleton and Sons, Leeds. ] Inland Revenue-Settlement Estate Duty-Absolute Settlement of part of
Estate with contingent Settlement of Residue --- Finance Act 1894 (57 8. 58 Vict. c. 30), 8.5 (1).- -Information by the Attorney-General. The defendants were the executors and trustees of the will of John Fairley, who died in Nov. 1895, and the information claimed settlement estate duty. By his will, dated in June 1894, the testator, after devising certain real estate to his widow for life, or widowhood, and then to fall into his residuary estate, gave to each of his two sisters and his cousin an annuity of £70 for life, and he devised and bequeathed all his real and personal estate to his trustees upon trust for sale and conversion into money, and after payment of debts and legacies, to invest the residue in trust to pay the income of such residuary trust funds to his wife during her life, and if she should marry again then an annuity of £50, and after her decease or second marriage in trust for all the testator's children who being sons should attain the age of twenty-one, or being daughters should attain that age, or marry under that age, in .equal shares; provided that the trustees should retain the share of each of his daughters, upon trust to pay the income thereof to his same daughter for life, for her sole and separate use, without power of anticipation during coverture, and from and after her death for the children of such daughter, or any of their issue, in such shares as she should by deed or will appoint, and in default of such appointment for the children of the same daughter who being male should attain the age of twentyone, or being female should attain that age, or marry, in equal shares ; and if there be only one such child the whole to be in trust for that one child, and in case there should be no child of the same daughter then upon such trusts as the same daughter should by deed or will appoint, and in default of such appointment in trust for the testator's other children. The defendants, the executors of the testator, paid estate duty at the rate of £4 10s. per cent. on a net estate of £33,000. The testator left three children living at his decease, two sons and one daughter, all being under the age of twenty-one, and all the annuitants were living at the testator's death. The Commissioners of Inland Revenue claimed from the defendants settlement estate duty under sect. 5 (1) of the Finance Act 1894, on the whole of the testator's residuary estate, including the fund to meet the annuities. Held, that there being an absolute settlement of part of the estate (the daughter's third), together with tho contingent settlement of the residue (the son's twothirds), there was a settlement of the whole within sect. 5 (1), and that the Crown was entitled to the duty.
[The Attorney-General v. Fairley and others. Q. B. Div.: Williams and Kennedy, JJ. April 1.-Counsel : Sir R. Finlay (S.-G.) and V. Hawkins ; Warrington, Q.C. and Dibdin. Solicitors : The Solicitor of Inland Revenue; Hewitt and Urquhart, for Doyle and Bowden, Man
chester.] Revenue--Estate Duty-Property passing on Death-Passing of Life
Interest-Exemptions—Property settled by “ Disposition" on which Probate Duty has been paid-Combined Effect of Settlement and Will ---Finance Act 1894 (57 f. 58 Vict. c. 30), 88. 1, 2 (1 b), 21 ; sched. 1.Information by the Attorney-General claiming estate duty. By an indenture of settlement, dated the 16th Oct. 1871, and made between
the Rev. William Popham, of the first part, and Elizabeth Frances Bailward (afterwards Popham), of the second part, and the defendant the Rev. H. Doddington and another (since deceased), of the third part, being the marriage settlement between Mr. Popham and Mrs. Bailward, certain property to which Mrs Bailward was entitled was vested in trustees upon trust to pay the income to Mrs. Bailward for life, and after her death to Mr. Popham for life, and after the decease of the survivor upon trust for such person or persons as Mrs. Bailward should appoint. During her lifetime Mrs. Popham executed two appointments to herself of £600 and £300 respectively, which sums were duly raised and paid to her. By her last will, dated 1878, with codicil dated 1883, Mrs. Popham appointed that, from and after her decease, the trustees should stand possessed of the trust funds as to £300 upon trust for Mr. Popham, and as to the residue, subject to the life interest of the said Mr. Popham, that the same should be held upon trust for her children by her first marriage. On her death on the 10th Aug. 1883, the executors of the will duly paid probate duty on the personal estate of Mrs. Popham and upon the trust funds (subject to Mr. Popham's life interest). The result of this was that a deduction was made from the probate duty in respect of Mr. Popham's life interest, which did not pass under the will. Mr. Popham died on the 28th Aug. 1894. Upon his death estate duty was claimed on so much of the trust funds as remained subject at his death to the trusts of the settlement, under sect. 2 (1b) of the Finance Act 1894. That section provides that property passing on the death of the deceased (upon which a duty is levied by sect. 1 of the Act) shall be deemed to include (b) “property in which the deceased or any other person had an interest, ceasing on the death of the deceased, to the extent to which a benefit accrues or arises by the cesser of such interest." The defendant, however, refused to pay, on the ground that the trust funds were exempted from daty by sect. 21 (1) of the Act, which provides as follows: “Estate duty shall not be payable, on the death of a deceased person, in respect of personal property settled by a will or disposition made by a person dying before the commencement of this part of this Act, in respect of which property any duty mentioned in paragraphs 1 and 2 of the first schedule to this Act
has been paid or is payable.” The first schedule refers, in paragraph (1), to probate duty under the Customs and Inland Revenue Act 1881 (44 & 45 Vict. c. 12). It was contended, on behalf of the Crown, that there was no exemption under sect. 21 (1), inasmuch as the probate duty on the death of Mrs. Popham had not been paid in respect of the property itself, but in respect of an interest in the property ; and, further, because this was not property "settled by a will or disposition" within the meaning of sect. 21 (1), since the property had been settled, not by Mrs. Popham's will, but by the indentare of 1871. On behalf of the defendant it was contended that Mrs. Popham had settled the property by a disposition which was the combined effect of the settlement of 1871 and her will, and that upon that property probate duty had been paid at Mrs. Popham's death. Counsel cited AttorneyGeneral v. Chapman (65 L. T. Rep. 119; (1891) 2 Q. B. 526). Held, that the exercise of the power of appointment must be referred to the instrument giving the power, and therefore the property was settled by a “disposition," and was therefore exempt from estate duty under sect. 21 (1) in respect of so much of the settled property as probate duty had already been paid upon. Estate duty, however, was chargeable in respect of so much (viz., the value of Mrs. Popbam's life interest) as had not paid probate duty at Mrs. Popbam's death.
[Attorney-General v. Doddington. Q. B. Div.: Williams and Wright, JJ. March 31.—Counsel: for the Crown, The AttorneyGeneral (Sir R. Webster) and Vaughan Hawkins; for the defendant, Haldane, Q.C. and Danckwerts. Solicitors: for the Crown, Solicitor of Inland Revenue ; for the respondents, Flower, Nussey, and
Fellowes.] Revenue-Foreign Executors-Transfer of Shares without Probate in
England-Right to deal with Executors before Probate—“ Taking Possession of” Estate-Penalty-55 Geo. 3, c. 184, s. 37.-Information by the Attorney-General. The defendant company was an English company incorporated under the Companies Acts 1862 to 1886, and had its registered office in London. The company was formed for the purpose (inter alia) of acquiring, and they did acquire, certain brewing businesses in New York, U.S.A., known as the H. Clausen and Son Brewing Company, and Flanagan Nay and Co., both of New York. By the articles of association of the company it was provided that a book to be called the Register of Transfers should be kept by the secretary ; and that any person becoming entitled to a share in consequence of the death or bankruptcy of a member, might be registered as the holder on producing such evidence of title as the directors might require. There was no register of shares and debentures elsewhere than in London. Henry Clausen, a person domiciled in New York, died on the 28th Dec. 1893, having by his will appointed H. Schmidt and P. Stocky, both of New York, his executors, and in Jan. 1894 letters testamentary of the estate of the said Henry Clausen were granted by the Surrogates Court of New York, to the said Schmidt and Stocky. At the date of his death the said Henry Clausen was the registered hol`er in the books of the company of shares and debentures of the company of the nominal value of £42,210. The will of the said Henry Clausen had not been proved in England, nor had administration or representation to his estate in any form been granted or taken out iu England. But the company (with the object, as was alleged, of escaping payment of the duties claimed in this information), had disposed of the said shares and debentures, or some part thereof, by transferring the same in the books of the company in London into the names of the said Schmidt and Stocky, and had paid to them the interest and dividends payable in respect of such debentures and shares, knowing at the time they did so that no representation
OUR LITERARY COLUMN.
to the said Henry Clausen had been taken out in this country. It was contended on behalf of the Crown that by 80 acting the defendant company did in fact take possession of, and administer the shares and debentures, interest and dividends so transferred, paid, and dealt with, and thus became an executor de son tort of the personal estate of Henry Clausen capable of being dealt with in England, and therefore liable to the penalties imposed by sect. 37 of the Act 55 Geo. 3, c. 184, and sect. 40 of 44 Vict. c. 12, upon any person who “ shall take possession of, and in any manner administer, any part of the personal estate and effects of any person deceased without obtaining probate of the will or letters of administration of the estate and effects of the deceased witbin six calendar months after his or her decease.” Held, that the defendant company had not committed an offence under sect. 37 of the above-mentioned Act; that section applies only to a person assuming to act as an executor, and the defendant company had not "taken possession of” the property of the deceased, but bad only recognised the title of the executor, without requiring him to show that he had taken probate ; this the company might lawfully do ander the ancient law, which has not been altered by 47 & 48 Vict. c. 62, s. 11, which makes a grant of representation the only evidence of title to the goods of a deceased person.
[Attorney-General v. The New York Breweries Company Limited. Q. B. Div.: Wills and Grantham, JJ. April 8.—Counsel: for the Crown, Sir R. Webster (A.-G.), Sir R. Finlay (S.-G.), and Vaughan Hawkins; for the respondents, Moulton, Q.C., Asquith, Q.C., Bremner, and Gore Brown. Solicitors: Solicitor of Inland Revenue; Burn and Berridge.]
PROBATE, DIVORCE, AND ADMIRALTY DIVISION.
ADMIRALTY BUSINESS. Collisior--Arrest and Sale of Ship abroad-Proceeds--Limitation Action
in England-Right to prove-Life Claimants--Interest.-In January 1895 a collision occurred in the North Sea between the North German Lloyd steamship Elbe and the British steamship Craithie. The Elbe sank. The Craithie put into Rotterdam, where she was arrested in an action by the owners of the Elbe and some of the cargo owners. The Craithie was held alone to blame for the collision, and ultimately sold by order of the court at Rotterdam for £1005. Out of this sum the owners of the Elbe received as their proportion £682. The owners of the Craithie having instituted an action in this country to limit their liability in respect of the said collision : Held, that the claimants who had sued and recovered abroad were not thereby debarred from proving against the fund in the limitation action, but must give credit for the amount recovered abroad. Held further, that life claimants were entitled to interest from the date of the collision upon the sums recovered by them out of the fund.
[The Craithie and Elbe. P. D. & A. Div.: Barnes J. March 22 and April 6.-Counsel: for the owners of the Craithie, Sir Walter Phillimore and Kilburn; for the owners of the Elbe and life claimants, Aspinall, Q.C. and Butler Aspinall; for the owners of cargo, Joseph Walton, Q.C. and Dr. Stubbs ; for other cargo owners, Baden Powell ; for certain life claimants, A. Pritchard. Solicitors : Downing, Holman, and Co.; Clarkson, Greenwells, and Co.; Stokes and Stokes ; Rowcliffes
and Co.; Pritchard and Sons.] - County Courts Admiralty Jurisdiction--Practice-Action in rem- - Mode
of Trial-Right to Jury--County Courts Act 1888, s. 101.-Action in rem brought by the agent of the owners of the steamship Theodora in the Portsmouth County Court, to recover a balance of freight from owners of cargo carried in the Theodora ; the defendants counter-claimed for damages in respect of the alleged illegal arrest of the goods. The defendants gave notice for the summoning of a jury in the County Court, and a jury was summoned by the registrar. At the hearing the plaintiff objected that the defendants were not entitled to have the case tried by a jury, and the judge ruled that the defendants had no right to a jury. From this decision the defendants appealed on the ground that by virtue of the County Courts Act 1888 (51 & 52 Vict. c. 43), sect 101, a party can 'claim to have the action tried by a jury where the proceeding is one in which jurisdiction is given by the County Courts Admiralty Jurisdiction Acts 1868 and 1869, and the subject matter is not salvage, towage, or collision. Held (affirming the decision of the County Court judge), that the defendants were not entitled to have the case tried by a jury.
[The Theodora. P. D. & A. Div.: The President (Sir Francis Jeune and Barnes, J. March 23 and April 8.-Counsel : for the appellants, Boyd, QC. and Newbolt ; for the respondent, Kilburn. Solicitors : E. J. Bechervaise ; Stokes and Stokes.]
STORIES FROM THE LAW REPORTS. XVII.--THE STORY OF THE MURDERER WHO CONFESSED HIS CRIME
TO THE CHAPLAIN OF THE GAOL.
(From Rex v. Gilham, 1 Moo. C. C. 186.) It was early in the morning on Sunday, the 27th Jan. 1828, that Mrs. Coxe's servants, at her fashionable house in Bath, were clustered together at the door of thą upper housemaid's apartment. For the cook, seeing that she did not appear below stairs at the usual hour, had been to call her, and had found her dead body lying just inside the door. The cook, had screamed, not loudly enough to awaken her mistress--who lived in another wing of the house, and who would not, in the natural course of things, be called for several hours yet—but loudly enough to summon the household from their several chambers. They were all there now, except the butler Gilham, who up to this time had not stirred.
Maria's corpse was cold : there were marks of violence upon her arms and neck; and her death seemed to have been caused by strangling, after she had been weakened by several blows inflicted with a stick or some other heavy object. The upper servants agreed that Gilham must be summoned, for that he was the proper person to break the horrid intəlligence to the mistress when she came down to breakfast.
One of them therefore knocked at his door, announcing that there had been a murder, and requesting him to come at once, for that all the women were frightened.
Shortly after this, Gilbam accordingly appeared. He seemed greatly agitated when he saw the body, but he said nothing except that he would attend to the matter.
Three hours later the coroner was in the house, and his jury began their inquest that very same day. All the servants were examined. Nothing appeared from the examination of the maid-servants, except that one of them testified that Maria and Gilham had had an argument of some sort --she knew not about what subject-upon the previous evening. The boot-boy, however, deposed to Maria having said what sounded to him like “Good-night, thief !” when she left him for the night, but he could not swear that this was the word which she used. Gilham was examined. He knew nothing of the murder ; he did not remember having any argument with Maria at any time; she had never said to him “Good-night, thief !” Mrs. Coxe was examined, but could throw no light upon the matter.
The police had at first been puzzled, but they had obtained a clue which seemed to be worth following up. If Maria had indeed used the words, “Good-night, thief !” to Gilham, it was conceivable that those words led to the murder ; but it was only conceivable upon one supposition, and this was tbat Gilham really was a thief, and that Maria knew his secret. This reflection suggested to the police the line which their investigations ought to take.
The suspected butler subsequently underwent several examinations before the mayor; and finally, on the Wednesday-three days after the finding of the body-he was apprehended, and charged with stealing certain articles which were the property of his mistress.
On Thursday, the last day of January, he denied that he ha any property in Bath except wbat was at the house of Mrs. Coxe; but, upon the same Thursday, eight packages containing different articles belonging to Mrs. Coxe, which had been found in a room which the police discovered to have been bired by Gilham, were brought to the town-ball and opened in his presence.
He then went into the beadle's room and said to Bourne the gaoler. "Well! they'll hang me for this I know, but I thank God I am innocent of the murder."
The gaoler said to him, “Don't add lies to crime.”
He was afterwards taken to the gaol, and the gaoler saw him the next morning, which was Friday, the 1st Feb. Gilham seemed very much distressed, and Bourne said that he should not be doing his duty if he did not tell him that it was his firm opinion that he was the man who did the deed.
The accused man clasped his hands together. The gaoler said, " It is done now and cannot be helped ;” to which Gilham replied, “Ne, it cannot."
Gilham had the Bible, the Prayer-Book, and the “Whole Duty of Man ” by him. Bourne pointed out several passages for him to read in the Prayer-Book, particularly the opening sentences of the Order for Morning Prayer. He also told him that, if he wished to have a spiritual adviser, he would endeavour to get him one; and, after some conversation, Gilham expressed a wish to have the chaplain of the gaol.
The chaplain, on hearing the gaoler's application, first went to the magistrates, and then proceeded—at about half-past eleven on the Friday to the accused man's cell.
The chaplain asked Gilham why he had sent for him. “ To read and pray with me,” he answered. “I cannot do it myself. I cannot make use of these by myself," and he pointed to the Prayer-book, the Bible, and the “ Whole Duty of Man." He said that he knew that he was a sinner, and should soon die. The chaplain asked him how he knew that he would soon die. He replied that he had been told at the Hall that he should be hanged for taking the goods of his mistress ; and he then admitted that he had purloined a few things from her. The chaplain saw that he was in a very penitent and distressed state of mind, and asked him whether there were not something still more heavy upon his conscience. He said that he knew that he was a sinner as other men, and that he was suspected of the unhappy murder of his fellow-servant, Maria Bagnall. “If you are innocent,” said the chaplain, “ maintain your innocence; but if not, your own heart will tell you. It is my duty as the minister of God to warn you not to add sin to sin by attempting to discemble with God, you
COMMERCIAL FAILURES AND BILLS OF SALE.—According to Stubbs' Weekly Gazette, the number of failures in England and Wales gazetted during the week ending the 17th April was 153. The number in the corresponding week of last year was 122, showing an increase of 31. The number of bills of sale in England and Wales registered at the Queen's Bench for the week ending the 17th April was 147. The number in the corresponding week of last year was 139.
WARNING TO INTENDING HOUSE PURCHASERS AND LESSEES.-Before purchasing or renting a house bave the sanitary arrangements thoroughly examined, tested, and reported upon by an expert from Messrs. Carter Bros., 65, Victoria-street, Westminster. Fee quoted on receipt of full particulare. (Established 21 years.)-[ADVT.]
by a clergyman, not with any view of temporal benefit, is admissible. It must, however, be shown affirmatively on the part of the prosecution that the confession which it is sought to put in evidence was made without the defendant being induced to make it by any promise or favour, or by menaces made by a person in authority. Cf. Rex v. Warringham, 2 Dear. 447; Rex v. Dunn, 4 C. & P. 543; and vide Archbold's “Criminal Pleading" (21st edit.) pp. 261 and following.
Land Registry. By EDMUND KELL BLYTH. London: Stevens
and Sons Limited, Chancery-lane. In this pamphlet the German and Austrian systems and their application to England are considered. The faults and failings of Mr. Fortescue Brickdale's recommendations in his report are dealt with, and the points raised by the author are well worthy of consideration by the advocates for the introduction of any such system into England.
Administrative Reform. By J. THEODORE DODD, M.A., Barrister
at-Law. London: H. Henry and Co., St. Martin's-lane. The author in this work shows what can be done by way of reform by administrative action apart from Act of Parliament, and in particular discusses the powers and duties of the Local Government Board with regard to its powers in connection with the poor law. Certainly many of the suggestions made in the book are worthy of serious consideration, and will commend themselves to persons who are interested in the subject.
confess yourself a sinner : you think you will soon die ; would no you wish to repent of your sins ? " “ Yes," he said.
The chaplain then explained to him what he considered to be the nature of true repentance, and, amongst other things, that it was not a mere acknowledgment of sin, but a deep search into ourselves, and by the purity of the Gospel, whenever we found ourselves deep defaulters, to confess the same before God, with a deep contrition on our part for having violated the law of God. The chaplain told him that before God it would be better for him to confess his sins.
The chaplain also told him that, next to confessing his sins before God, another most important part of the duty of repentance was to repair, by all possible means in his power, every injury of whatsoever nature which he had done to his fellow-creatures. He enlarged very considerably on his repairing the injuries which he had done to his fellow-creatures as forming a branch of true repentance; and he said he might say," and repairing any injury done to the laws of his country.”
Gilham was then extremely agitated. The chaplain read to him part of the “Commination,” commenting upon it as he went along. He thought at one time that Gilham was on the point of making some communication to him, and he asked him whether he should send for Mr. Bourne. This was with a view of the accused making a communication to Bourne, for the chaplain thought that he had made a great impression upon Gilham's mind. For the man's agitation and perturbed state of mind during the interview was so great that the chaplain “could not belp being aware," as he said afterwards, that he had something pressing on his mind. While that was the case, he said he could tell Gilham, and he would feel it for him. self, that no services of his would afford him what he wished they should do, real comfort. He told him also that he must be aware that he, as a minister of God, had but one object in view, to bring him to a state of true repentance; and that he could not but himself feel sensible that he was more concerned in the dreadful deed than he had admitted ; that he did not wish him to confess to him, but to bear in mind the subject on which he had talked to him and read to him. What the chaplain said evidently worked much upon the unkappy man ; and so the former when leaving him said: “Does not your conscience bear witness to the truth of what I have advanced ?" The prisoner did not answer this question, but expressed a wish to see the reverend gentleman again.
The chaplain then went and reported to the magistrates every word which he could remember of what had passed between himself and the accused! He then rested a while" to recover myself a little,” to use his own words," from the agitation I was in from so painful an interview.”
A little before three o'clock on the same day he returned to the wretched Gilham, and resumed the tenour of his conversation upon repentance in all its several branches. He entreated the accused to weigh what he had said to him of the duty of repentance and confessing his sins before God-(he said afterwards that he could not take upon himself to say that he always mentioned “before God
every time he used the word confessing) and repairing by every possible means any injury he had done to his fellow-creatures. As the man had himself alluded to the murder the chaplain entreated him if be knew himself guilty, to avail himself of the consolations which the Christian religion offers to the trae penitent. At one time during this second interview the chaplain saw so evident an impression made upon his mind that he could not but tell him that his fear which be had expressed in the morning respecting his participation in the dreadful deed was fully confirmed. “ While you are in that state of mind.” he added, "I cannot afford you tbe consolation by prayer which it is my earnest wish to do.” Soon afterwards he took his departure, the two interviews having together lasted between three and four hours.
After the second interview, Bourne, the gaoler, saw Gilham, and told bim that, after talking over the matter with his wife, he was perfectly satisfied that what he (Bourne) had said in the morning was correct. Gilham said, “I will tell you all about it.”
The gaoler answered, “Don't tell me anything but what you would wish the Mayor and magistrates to know, for whatever you tell me I must inform them of.”
Gilham then related to the gaoler the particulars of the murder, and the way in which he had committed it.
Bourne said, “ Now I shall tell all this to the Mayor and magistrates.
“ That is what I wish," said the other. “I had endeavoured to make up my mind to confess before. I had a great mind on Monday. I want the Mayor to come and hear what I have to say, and I particularly wish to see the clergyman again.
The next morning, Saturday, the gaoler saw him again and read to him two prayers and a psalm. He said that he felt himself a good deal easier in his mind. And upon ten o'clock the Mayor of Bath and the Town Clerk came.
The accused man was cautioned and told that whatever he said would be used against him in evidence.
The man, however, made a full confession. What he said was taken down in writing in his own words. It was read over to him by the Town Clerk, who asked him whether he had any objection to sign it. He said he bad not any, but his hand shook so that he could not write his name. “It is all true," he said.
NEW EDITIONS. An eleventh edition has just been issued of Hints on Advocacy, by Richard Harris, Q.C. (London : Stevens and Sons Limited). If an advocate could be made by the mere reading of books, there is no doubt that this work alone would amply suffice. An advocate nascitur non fit, but a good deal of experience can be condensed into the form of rules, a study of which will greatly assist the young advocate in actual practice. So far as this can be accomplished, Mr. Harris may undoubtedly be said to have succeeded, and a perusal of this volume we can confidently recommend to the student and the budding barrister.
Mr. Jones has just brought out a second edition of his Business Man's County Court Guide (Effingham Wilson and Co.). The ordinary procedure of these courts, is dealt with, especially with regard to the recovery of debts. Forms and a table of fees are added, and the book is clear and concise.
BOOKS RECEIVED. Hayworth's Statute Law relating to Rivers Pollution. Stevens and Sons Limited, 119 and 120, Chancery-lane. Price 6s.
Smith's Summary of the Law of Companies. Sixth Edition. Stevens and Haynes, Bell-yard, Temple Bar.
CRIMINAL LAW AND THE JURIS
DICTION OF MAGISTRATES.
THE CRIMINAL APPEAL BILL.
(To the Editor of the Law Times.) I am not an admirer of Mr. Pickersgill’s Criminal Appeal Bill, though its faults are for the most part to be ascribed to the Committee of Judges rather than to its sponsor. But, if I had the choice of passing it unaltered or rejecting it, I should have no hesitation in adopting the former alternative, because any Court of Criminal Appeal is better than none. When our final appellate tribunal in criminal cases is a public one--and no restriction should be placed by statute on its publicity-its defects will soon be brought to light and corrected by an amending statute if they are of a kind that cannot be reached by general rules. It is only with a secret tribunal that blanders can harden into precedents, and the practice can become steadily worse from year to year without the public being aware of the change.
Most of the objections to a Court of Criminal Appeal proceed on the assumption that there are very few wrongful convictions, and that the greater part of these are corrected by the Home Office. There are very strong reasons for believing that both parts of this assumption are erroneous. But it is not difficult to see why the judges should believe that erroneous convictions are of rare occurrence. They are of rare occurrence
That confession, despite the protest made by his learned counsel, was read a few months subsequently at the Spring Assizes at Taunton, when Gilham was tried for his life, and it was admitted in evidence by Mr. Justice Littledale. And not long afterwards the judges of the Court for Crown Cases Reserved were unanim sly of opinion that the confession was properly received.
The prisoner was afterwards executed.
Legal Proposition.-Although a confession is not admissible unless it be free and voluntary, yet a confession made in consequence of persuasion
wrongful convictions are so frequent, and the Home Office so inefficient in correcting them, that even those who are least likely to suffer by the existing system would gain largely by the change. Looking more closely, however, the case appears to be this : A. and B. have both been wrongfully convicted. The Home Secretary unreasonably refuses to liberate either. The release can only be effected through the Appeal Court, and this will cost money. A. has money, and is ready to pay for his vindication. B. has no money, and we refuse to supply him with the necessary funds. Then we turn round and tell A. that we cannot permit him to vindicate himself at his own expense, because this would not be fair to B. The latter must, of course, serve out his sentence, though innocent, but it will be a consolation to him to have the equally innocent A. serving out his sentence at the same time. The law is no respecter of persons. Its Juggernaut car must pass alike over the bodies of rich and poor, save that the Home Secretary occasionally placks someone from beneath the wheels, in order to show the public that he and his subordinates do not receive their salaries for merely playing the rôle of spectators.
Is there any trial, civil or criminal, at which the rich man has no advantage over the poor man? Rectify this generally if you will, but do not deny justice to the rich because you are determined to deny it to the poor. Of course, the latter ought to have access to the Appeal Court however, and I presume the court would sufficiently provide against frivolous appeals by the ordinary method of general rules. Surely, it might be left to regulate its own procedure--pace Mr. H. D. Greene, M.P.
In a very recent instance a prisoner who was wrongfully convicted was enabled to vindicate himself because a civil action was brought against him. It is not the first time that this has occurred. The wrongful conviction was proba oly obtained partly at least because he was unable to give evidence on his own behalf at the trial. But why did not the Home Secretary release the man when the weight of evidence was actually in his favour? One advantage claimed for the Home Office procedure is that it is not limited to strict legal evidence. The fact that the man could not be examined on oath at the trial was therefore no reason why his testimony on oath (or even without any oath) should not have been received and acted on at the Home Office. The Home Secretary, I presume, had everything before him when deciding against the prisoner that led to a contrary decision in the civil action. And no case is so hopeless as that of the prisoner whose claim to the benefit of a reasonable doubt has once been disallowed by the Home Office. The officials are evidently apprehensive that a subsequent liberation would be regarded as an admission that they had made a mistake and that the prisoner's advocates were in the right. More than one prisoner might, I believe, improve his prospects of release by making a false confession of guilt. That would set the officials right with the public, and they could then afford to be merciful. When the prison door is closed with a louder bang than usual, we may almost conclude that the case is one of grave doubt. APPELLANT.
unless the judge sums up against the prisoner or fails to accentuate the points in his favour. Savo where there is a strong local feeling, jurors are usually impartial when let alone, but they are easily led by the judge whom they suppose to be impartial also, but who has acted as an advocate too long to divest himself entirely of that character. After the conviction he is consulted, and the Home Secretary affirms what is really his decision. The judge of course concludes that the verdict is right, and no other judge knows anything about it except in the rare event of one of the counsel being elevated to the Judicial Bench while the matter is still undisposed of -- as occurred, for example, in the case of Mrs. Maybrick. The Lord Chief Justice, no doubt, thinks that the Home Office was wrong in that case as well as in the case of Kelsall, where he directed the prosecution, which reversed the repeated decisions of the Home Secretary ; but he probably regards these two cases as exceptions, and thinks the ordinary course of affirming verdicts which are challenged in the press quite correct. Nevertheless, in the small number of cases where the prisoner was able practically to appeal from the Home Secretary to a court of justice, success has been not the exception but the rule. The worst judge on the bench cannot lay claim to anything like the proportion of reversals that have occurred in cases where there was a possibility of reviewing the Home Secretary's decisions in a court of justice. This fact is now so well known at the Home Office that its great object appears to be to prevent all agitation and criticism of its actions, inasmuch as whenever the question has been fairly tested, the critics have almost always been found in the right and the Home Office in the wrong. To stop agitation it is given out-unofficially, of course, but without contradiction, and apparently with the approbation of the officials--that if it does not at once cease the prisoner will be kept longer in prison than would otherwise be the case. If this statement is true, the Home Office is atterly unworthy even of the limited confidence which it still enjoys. If it is false, its circulation with the apparent sanction of the officials is almost equally discreditable to them. It is of no great consequence whether the prisoner is punished on account of the agitation, or the prospect of release is held out as a bribe to induce the agitators to stop. No tribunal with any sense of justice would tolerate either proceeding. If the Home Secretary cannot give an authoritative contradiction to the allegations to which I refer, his tribunal should not be tolerated for a single day. Nothing but secrecy would render such a system possible in an age like this. It has never been proved either that wrongful convictions are very rare, or that the Home Secretary corrects as much as one-fourth of them, and it never can be proved until we have some better mode of ascertaining whether a given conviction is wrongful or not. But the number of cases in which the apholders of convictions are obliged to fall back on the assumption that the Home Office is in possession of secret information against the prisoner is rather startling. We are sometimes assured that the Home Office is in possession of evidence enough to hang the prisoner forty times over. Very likely. Where there are persons who are determined, whether from malice or interest, to prevent a release, the Home Secretary will never be in want of such information as long as it is kept secret and exposed to no test. Sach information would be multiplied ad libitum if necessary, but whether the officials really believe it may be doubted. But we are told that miscarriages of justice can rarely occur, because the magistrates and the grand jury have first to be convinced of the prisoner's guilt, and because the jury, instead of deciding in accordance with the 'weight of the evidence, as in a civil action, is bound to give the prisoner the benefit of every reasonable doubt. But it often happens that neither the magistrates nor the grand jury would convict the prisoner if it rested with them. Where, for instance, there is a conflict of evidence as to which of two persons assaulted the other, both are often committed for trial, and true bills found against both. In great numbers of other cases the defence is reserved until the trial, and neither the magis. trates nor the grand jury know what the prisoner's defence will be. In the famous Maybrick case the prisoner's counsel asked the magistrates whether they had made up their minds to commit the prisoner for trial irrespective of the evidence that might be tendered for the defence. They replied in the affirmative, and it was not till then that he resolved to reserve his defence. Surely there was no trial by these magistrates. Then, if the jurors are liable to make a mistake as to the weight of evidence, are they not equally liable to make a mistake as to the reasonableness of a doubt ? Moreover, the judge, after some platitudes about giving the prisoner the benefit of the doubt, often proceeds to discuss the question on which side the weight of the evidence lies. In a poisoning case, for example, he compares the medical evidence for the Crown with that for the prisoner, and gives his opinion, for the guidance of the jury, that the weight of evidence is in favour of the former, without cautioning them that this is not the real question at issue. I believe verdicts in criminal eases are often found on the weight of evidence, without any regard to the question of reasonable doubt. And why in such cases is the weight of evidence against the prisoner ? Very often because he has not the same facilities for procuring evidence and laying it before the jury that the Crown has. He has neither money nor friends, and has no agency like the police to hunt ap evidence on his behalf, while being locked up in prison he can do little or nothing for himself. In civil actions plaintiff and defendant usually meet on equal terms, while in criminal cases the whole wealth of the Crown is available for the prosecution, and the prisoner is often a pauper. But a Court of Criminal Appeal, it is said, would give great advantages to a wealthy prisoner. Why? He runs less risk of being wrongfully convicted than a poor man, because he has better means of preparing his defence, and he has also better means of influencing the Home Office than his poorer compeer. What ground have we, then, to suppose that a Court of Criminal Appeal would release many wealthy convicts whom the Home Secretary has refused to release ? The only possible answer seems to be that
EVIDENCE IN CRIMINAL CASES BILL.
Views or LEADING IRISH Q.C.'s. SUBJOINED, writes the Dublin Daily Independent, are the views of some, leading Q.C.’s which we have obtained regarding the Prisoners' Evidence Bill and the question of its extension to Ireland :
Mr. Matheson, Q.C., says: “If I was a prisoner I would not like to be examined in my own defence. I never saw a prisoner yet that did not, when examined, play havoc with his own case. Since it has been made legal to examine prisoners in their own defence in certain cases, I have seen a good many of them put into the witness-box, and it always resulted in completely proving the case against themselves, and adding the links that were wanting in the case for the Crown. On the other hand, I think it exceedingly unjust that a prisoner should not have the opportunity, if he thought fit, or his advisers thought fit, of speaking on his own behalf. It is an anomaly in the law that he should not be at liberty to do so. My experience, however, is that in cases where it is possible to examine a prisoner on his own behalf, the fact of being able to do su is entirely against the prisoner, because, if he does not take advantage of the privilege, it is always commented on that he could have done so and has not done so, and that, therefore, it must be taken that he could not make a case in his own defence. An innocent man might become so excited and nervous in the hands of a clever cross-examiner that he would make it appear that he was guilty when he really was innocent. I have not considered the provisions of the present Bill, and, indeed, I don't know anything about it, except what I have read in the newspapers. I think that the criminal law should be uniform all over the United Kingdom. If the Bill is extended to England it should be extended to Ireland, but, as I have said, my view is that it is a Bill which would injure prisoners more than benefit them. Looked at from the point of view of the public, and the desirability of putting down crime, I think that the Bill would tend strongly in that direction. It would enable the Crown to procure convictions on satisfactory grounds in many cases where links in the evidence are very weak."
Mr. Piers White, Q.C., says : My opinion is that it is not desirable that the Bill should be extended to Ireland. I have had some experience of prosecutions and defending prisoners when I used to go on circuit, and I think that if a prisoner declined to say anything the very worst construction would be put on his silence, and then if he opened his mouth he would be certain to do himself more damage than if he kept silent. The Bill would be a fatal thing for prisoners. I can understand a man looking at it from a different point of view and desiring that in the public interest the greatest possible number of guilty persons should be convicted. No doubt the Bill would tend in that direction. The criminal classes in this country have an advantage from the present mode of procedure, and I
would not be inclined at all to disturb it. There is very little crime in the country. The experience we have of France is simply shocking to our sense of justice—the way they hunt prisoners into a corner by crossexamining them. The minute you open a prisoner's mouth you open it to the judge to put some desperate question, transfixing him on his own admission.”
Mr. William Ryan, Q.C., whose long and successful career as a criminal lawyer renders his views of particular interest, says : Candidly, I am against the Bill being extended to Ireland. One does not like to do any. thing that would tell against prisoners, although in this country they have a great many chances in their favour. For instance, this is the only country in the world where the system of assigning counsel in capital cases exists. Under the law as it stands there are certain classes of cases in which prisoners can be examined, and this system I find to be most injurious to the prisoners themselves. I had two instances of this the other day. These men go all to pieces in cross-examination. Even in isolated cases I don't think it benefits prisoners to be examined. Standing indifferently between the Crown and the prisoner, and not wanting to assist either side, I am against the suggested change, and would wish to leave things as they are. Juries in England are sometimes too ready to convict, and require rather to be kept in hand ; but this is not the case with Irish juries. I would not, however, interfere with the superior chances of Irish prisoners by examining them. If the prisoner had the option of being examined and did not avail of it, it would tell against him."
SITTINGS OF THE COURTS.
FOR THE WEEK ENDING SATURDAY, MAY 1. Aldershot, Wednesday
Lincoln, Monday (Reg., Bky), at 10 Alfreton, Monday, at 10
Liverpool, Monday, Tuesday, Wednesday, Altrincham,* Wednesday, at 10
and Thursday, at 10; Friday (Bky and Ambleside, Wednesday, at 1
Adm.), at 11 Andover, Wednesday, at 11.30
Llanelly, Monday and Tuesday
Loughborough,* Friday, at 9.30
Manchester, Monday (Reg., Bky). at 11 Banbury, Wednesday (Reg., Bky) and Middlesbrough, Monday and Thursday, Friday. at 10
at 10 Barnet, Wednesday
Monmouth, Tuesday, at 10 Barnsley, * Tuesday and Thursday Morpeth, Monday, at 10 Barrow-in-Furness, Thursday, at 9.45 Neath, Wednesday, Thursday, and Friday Birkenhead, * Tuesday, at 10
Newark, Monday, at 10 Birmingham, Monday, Tuesday, Wednes- Newent, Monday
day, Thursday (A. and B.), and Friday Newmarket, Thursday, at 10 (J.S.), at 10
Newport (Mon.), Tuesday (Reg., Bky), Blackburn, Monday, at 10
at 10 Blaenau Festiniog, Wednesday
Newport (Salop),* Wednesday, at 10 Bolton,* Wednesday, at 9.30
Northampton, Wednesday, at 10 Boston, Thursday, at 10
North Shields, Wednesday, at 10 Bow, Monday and Friday
Nottingham, Tuesday, Wednesday, and Bradford (Yorks).* Tuesday, Wednesday Friday, at 9.45
(Reg.), and Friday (Reg., Bky), at 10 Nuneaton,* Wednesday, at 9 Brentford, Friday, at 10
Oldham,* Thursday, at 9.30 Bridgnorth,* Thursday, at 10
Ormskirk, Tuesday, at 10 Brighton,* Wednesday, at 10; Thursday Penrith, Saturday, at 10.30 (J.S.), at 11.30; Friday, at 10
Pontefract. * Wednesday and Friday Bristol. Monday, Tuesday, Wednesday, Portmadoc, Tuesday
and Thursday, at 10: Friday (Bky), at il Portsmouth, Monday (Bky), and Thursday Brompton, Monday, Tuesday, Thursday, (Com. Sum.), at 12 and Friday
Preston, Tuesday, at 10 Buckingham, Monday, at 12
Pwllheli, Monday Burnley,* Thursday, and Friday (Bky), Rochester. Wednesday, at 9.30 at 10
Royston, Tuesday, at 10 Bury,* Monday, and Wednesday (Reg.), Ruthin, Thursday at 9
Saffron Walden, Monday, at 10 Cambridge, Wednesday, at 10
St. Albans, Monday Chelmsford, Monday, at 11
St. Helens, Wednesday Ohepstow, Monday, at 10
Sandbach,* Saturday Churston, Tuesday, at 10.30
Saxmundham, Tuesday Cleobury,* Friday, at 10
Sheerness, Tuesday, at 10 Clerkenwell, Tuesday, Wednesday, Thurs- Sheffield. Thursday and Friday, at 10 day, and Friday
Shoreditch, Tuesday and Thursday Colchester, Tuesday, at 11
Skipton,* Wednesday, at 9.45 Corwen, Friday
Southampton, Tuesday, and Wednesday Crediton, Monday, at 10
(Bky), at 11 Croydon, Tuesday
Southwark, Monday, Tuesday, and ThursDerby, Wednesday (J.S. and A.O.), at 10 day, at 10.30 Diss, Thursday
Stockport,* Friday Droitwich, Monday, at 1
Stockton-on-Tees, * Tuesday and Friday, Dudley,* Tuesday, at 10
at 9.30 Durham, Tuesday (Reg., Bky)
Sunderland, Thursday (Reg., Bky) Gainsborough, Wednesday, at 10
Swansea, Monday, Tuesday, Wednesday, Gateshead, Tuesday and Thursday, at 10 Thursday, and Friday Gloucester, Tuesday
Tenterden, Monday, at 10.30 Godalming, Thursday
Towcester, Thursday, at 10.30 Greenwich, Friday, at 10.30
Ulverston, Friday, at 10 Hadleigh, Friday
Wakefield. Tuesday, at 10 Halesworth, Wednesday
Walsall,* Thursday, at 10 Halifax, Tuesday (Reg.), at 10
Waltham Abbey, Friday, at 11 Hastings, Monday
Wandsworth, Monday Holbeach, Tuesday, at 10
Warrington,* Thursday Holywell, Tuesday
Wem,* Tuesday, at 10 Horncastle, Friday, at 10
Westbromwich,* Wednesday, at 10 Howden,* Monday
Westminster, Tuesday, Wednesday, Hyde,* Wednesday
Thursday, and Friday Ilkeston, Tuesday, at 10
Wigan,* Tuesday and Friday, at 9.30
Witney, Saturday, at 11 Leeds, Monday, Wednesday, Thursday, Wolverhampton, Monday and Friday, and Friday, at 10
at 10 Leicester,* Monday, Tuesday, and Satur- Woodbridge. Monday, at 11.30 day, at 10
Woolwich, Wednesday, at 10.30. Leigh,* Friday
• Other sittings are specially fixed if necessary.
THE JUBILEE OF THE COUNTY COURTS.
PRESENTATION TO HIS HONOUR JUDGE MASTERMAN. On the 14th inst., at the Nottingham County Court, an interesting ceremony took place in the presence of a large number of members of the Nottingham Incorporated Law Society. In celebration of the jubilee of the County Court a presentation, consisting of a handsomely illuminated address in the fifteenth century style, was made to his Honour Judge Masterman, by the Nottingham Incorporated Law Society. Judge Masterman was accompanied on the bench by the Mayor of Nottingham (Ald. E. H. Fraser), and the occupants of the solicitors' benches were Messrs. George Parr (president of the society), Kentish Wright (vicepresident), Arthur Barlow (secretary), F. Wadsworth, H. Wing, J. C. Warren, R. Enfield, and J. Johnstone (members of the council), R. H. Thorpe (the Official Receiver), R. H. Speed (registrar), E. Cartwright, A. T. Wallis, W. E. Bottrill, T. F. Walker, W. B. Smith, P. Truman, W. J. Watson, J. D. Fidler, S. L. Hibbert (Mansfield), Allcock (Mansfield), J. H. Simpson, J. B. Barlow (Newark), A. F. Kirby, A. B. Littlewood, R. H. Beaumont, A. M. Lawson, F. W. Rothera, Whitgreave, J. W. B. Allen, G. Cranch, S. W. Barrows, H. A. Dowson, C. A. Barker, F. S. Bryan, A. Browne, J. J. Spencer, together with John Jackson (high bailiff), A. Ward, F. Fromings, and W. Woodward (clerks).
Mr. Parr, addressing his Honour, said the solicitors of Nottingham wished to mark in some way the jubilee of the County Courts, and especially of the Nottingham County Court, over which his Honour so ably presided, and the members of the society ventured to say that in no court was a judge held in greater respect and esteem by practising solicitors than his Honour was in the Nottingham court, and they begged most sincerely to congratulate his Honour on his recovery from his recent indisposition. As to the jubilee it had been thought best to ask his Honour's acceptance of an address, which, with his permission, was read.
Judge Masterman, in reply, said : While it would be ungrateful of me not to acknowledge in the first place the very kind and gratifying expressions of your feelings towards me personally, which are contained in the address you have just read, which I do most cordially and sincerely, I feel that your presence here to-day is justified by the occasion which commemorates a system rather than its individual administrators. The County Courts, as you know, are based on one of the oldest institutions in the kingdom. The old County Courts, founded by King Alfred, held, as they do to-day, monthly sittings for the prompt and proximate administration of justice. They were originally presided over by the bishop and the sheriff, and though in later years supplemented and gradually superseded by local borough courts like that which is alluded to in your address, the Court of Requests, it speaks well for the elasticity and adaptability of our ancient institutions, as well as for the far-sighted intelligence of the Lord Chancellors, Lord Cottenham and Lord Brougham, who conceived and elaborated the present arrangements, that the County Court system has flourished and grown as it has done. But further, that progress speaks eloquently of the care and skill of those to whom was intrusted the earliest practical working of the new and experimental procedure, and here in Nottingham, as you have reminded me, a most able lawyer and a most skilful organiser was your first judge and registrar. Since the opening of this court, which we commemorate to-day, the population of this borough bas increased from 55,758 to 235,000, and many of the outlying villages within the ten-mile radius, which the court serves, have no doubt increased in even greater proportion. But the increase of the work of the County Court has outstripped even this great and rapid increase of population. While in 1847 there were but 2326 plaints and 104 judgment summonses, no less than 15,030 plaints and 10,034 judgment summonses passed through this court in 1896, and the jurisdiction of the court, originally limited to £20 for small debts, has been, by various statutes, nearly one hundred in number, extended to £50 in common law matters, with equity jurisdiction up to £500, general jurisdiction in bankruptcy, companies winding-up proceedings, remitted actions from the High Court, and the large and important class of cases under the Employers' Liability Act, besides many other smaller matters. I am happy to say that the distressing process of enforcing judgment against the poorer debtor by execution on their homes has largely diminished of late, and though it is my duty to issue in each year an enormous number of commitments under the process of judgment summonses, not quite 3per cent. of those commitments are carried to the extent of actual imprisonment. You have alluded with favourable anticipation to the projects which are largely discussed at present for extending the jurisdiction still further, and it cannot but be gratifying to the officials to know that much confidence has been acquired by the working of the courts. I must remind you that any great increase of jarisdiction must be attended by two dangers which cannot wisely be overlooked. The first is the local danger that the pressure of heavier work may tend to crush out the work for which the courts were originally founded, the recovery of small debts, and to diminish the speed with which causes are at present brought on for hearing. The second general public danger is that of over-decentralising the administration of justice, which, under the present system, ensured the publicity as well as the criticism of a strong central Bar, which together operate so much to maintain the confidence felt by the public in the justice of our Superior Courts as at present administered. And now, on behalf of myself, the registrar of whom you have made so kindly and well-deserved a mention in your address, the high bailiff, and all the officers of the court, to whom I would offer our thanks for the zeal and care with which they perform their arduous duties, I must express our gratitude for the exceptional honour you have done the system we administer on this its jubilee day.