66

Chancellor is not to feel himself at liberty obliged to employ solicitors, and then the ap to doubt or question the decision of such a plications to the Court of Chancery, all of tribunal.' If that is so, the reference to the which would be entirely novel, and in fact Vice-Chancellor will become nugatory, but if would be creating a new branch of business there is any substance in this matter, if it is altogether. I need not say to your lordships intended that he is bona fide to exercise his that the Society and the individuals who pejudgment in the matter, he cannot exercise tition your lordships are altogether above any that judgment until he has made himself ac such consideration. quainted with all the facts and circumstances Then, with respect to the guarantee fund, connected with the trust, and that, of course, which my learned friend, Mr. Clark, has elocannot be done without great expense. In quently compared to a cistern always filling, any other place and presence, I would the observation I made before, is sufficient to state in quite as high terms as my learned dispose of that. The guarantee fund is altofriend, Mr. Clark, did, the importance which gether unnecessary, so long as the affairs of will be attached to the decision of this the company are properly managed. But the Committee, and I agree with him as to necessity arises when once any malversation the high sense which the public would or negligence begins, and then I say, all exentertain of that decision, and I do not perience shows that when malversation or negthink it would be worth while to take the lect or inattention once begins in one of these trouble of passing either of these schemes, but joint-stock companies, it proceeds at a rate for what is proposed to be done,-namely, that and to an extent almost incredible. Then, I the decision of this Committee is to be trum- say, that if it does once begin, the guarantee peted abroad, and it will be said that your fund, or any other such sum, whether it is lordships have decided that a board of 21 di- 200,000l. or 300,000l., as compared with the rectors are better trustees than individual trus- amount that will be at stake, will be nothing, tees, that you have decided they are persons-the cistern, be it ever so well supplied, will competent to manage landed estates; and be dried up by the soles of the feet of the therefore it will be presumptuous in trustees, cestuis que trustent who will be coming and decestuis que trustent, or Vice-Chancellors to doubt the decision of such a Committee. That is what is intended, and that it is which makes it the more important that this Committee should hesitate before they arrive at such a decision.

"Then, my lords, there was one other observation which fell from my learned friend, Mr. Clark, which I confess I heard with some surprise and regret, because it was one which had been at once and gracefully withdrawn by my learned friend, Mr. Rolt,—namely, the interest of that body whom I represent. I think it is hardly necessary, before such a Committee, to notice such a point. It might as well be said that the Law Society, or even the Benchers of Lincoln's Inn or the Temple, when sitting, as they do most usefully, for the purpose of investigating into the character of any persons whose admission into the Profession of the Law may be in question, that any one of those gentlemen would be influenced by any personal interest or jealousy in regard to the individual whose case is before them,-an imagination that would not be more unreasonable than to say that the body I represent are actuated in coming forward in the way they have done by any other motive than that of doing their duty under the charter which is granted to them, knowing that if this company is sanctioned by this Committee, that decision will be put forward to the world in a way that will be most injurious to the public. I say, that if they considered their own personal and pecuniary interest, it would be altogether the other way, for I have shown to your lordships the numerous applications that must necessarily take place, the number of things in which it would be necessary for cestuis que trustent to embark before they could even get to the board of directors, and in all of which cases they would be

manding their money from this company. As one of the witnesses shows, the proposed security would be very much less than that already possessed by the cestui que trusts in the amount of property pledged to them upon the individual and personal responsibility of the present trustees.

"With respect to the next observation of my learned friend, he says, as to the disclosure of family matters and their case before such a board, that is immaterial, because at the present time any will may be inspected for a shilling at Doctors' Commons. That, allow me to say, is an entire misconception of the question. It is not as to those family matters which appear in the trust deed, but it is those family matters which arise in the course of the execution of the trust-matters such as Mr. Henley described: the education of children, the marriage of children, the advancement in life of the children,-some of the sons of the family turning out profligate, and it being necessary to take some extraordinary measure, but still justified by the terms of the trust deed with reference to the state of circumstances which has then arisen, to get them abroad, to make some provision for them, or some different provision for other members of the family. Those are things that must be discussed, those are things most painful to be disclosed to a board of directors; and, beyond that, it would be necessary, before that board of directors could arrive at a satisfactory conclusion, that they should have before them a plain and distinct statement of all the affairs of the family, so that they may be able to judge of every delicate circumstance that has arisen. That is a thing which the trustees originally appointed would do at once. They would know, à priori, all, or almost all, the

circumstances which had arisen. The great this,--although there was a trust, and aldifficulty would be for cestuis que trustent to go though the matter was brought before the atbefore the board and to lay before them a plain tention of the Legislature, they did not think statement for that purpose. They must incur fit to vest it in any corporation, but they said, some expense, and all experience shows that We will perpetuate the individual and perprofessional skill is required to make such a sonal responsibility of one man, and the person plain statement of the case as to render it in- filling the office shall represent his predecessor telligible to persons who have no previous ac- without the necessity of any bills of revivor quaintance with the facts. That would be a or any other process. solicitor in every such case-it would necessitate, at least, the employment of one solicitor.

"With reference to the Court of Chancery, as to which my learned friend, Mr. Clark, indulged in some facetious observations, in the presence of such a committee, it is not necessary that I should stand up as the humble defender of that Court; but with reference to the statement which I made, which was contradicted on the other side, as to the duties and office of a receiver-how they may get on in the Common Law Courts, I do not know, but I do not think it would be an answer for a Chancery barrister to say, that the practice of the Court was of such a petty nature that it is not necessary to make himself acquainted with it. What I said was, that when these things are taken into the Court of Chancery they are not brought into Court at all; counsel are never employed in them. By an order of the Court it is expressly provided, that if difficulties arise, it is not to be brought into Court, but all that is then done is, the receiver goes before the Judge's clerk at Chambers, where counsel by no possibility can be employed, because no counsel may be employed before Judges' clerks; therefore, all that is done is, the receiver goes to the Judge's clerk, he gets his instructions from him and he acts upon them. My learned friend, Mr. Hope Scott, may not be so familiar with the Court of Chancery as I am; but that is the present law of the Court.

"Then, my lord, with reference to the Act of Parliament to which my learned friend, Mr. Clark, and also the last witness referred, which was passed on the occasion of the death of Mr. Maule, I need not tell, at least one of your lordships, that that was merely an Act for the purpose of vesting certain properties, which were in one individual by virtue of his office, in another individual who afterwards filled the same office. The principal object of that Act of Parliament was to avoid expense in the many suits pending where the Crown was interested as to personal property, to avoid the necessity of having a revivor of those suits, on the death of an individual and the result was, that those many suits in which Mr. Maule was administrator, go on without any order for revivor, but his successor takes exactly the same place, but always, be it remembered, with the same personal and individual responsibility that Mr. Maule, his predecessor, had while he was alive. So far from that Act of Parliament being an authority for the application now before your lordship, if it has any application to the present case, it is

"Then, my lords, I would only observe upon this Act, that it contains a similar clause to the other one, with respect to the dissolution and winding up of the affairs of the company, either in the event of the guarantee fund not being sufficient, or of any breach of trust being committed, or being decided by the Court of Chancery to have been committed. Your lordships will find that in the 30th section of this Act, the only difference between the two is, that the proceeding which is contemplated to put an end to their affairs is a suit, and the decree is to be made upon a summary application by the Attorney-General. I think I need not any further dilate upon the consequences of such a suit. It would be a suit by the Attorney-General for the administration of a fund in which thousands of persons would be interested. No Court could be guilty of such injustice as to pay away a single shilling of that fund without first ascertaining who were the persons interested and in what proportions. They would be all necessary parties to that suit. It would be a suit as one of the witnesses very aptly described it, such as was never heard of; something more frightful than he could conceive; and yet that is contemplated in both of these acts.

"This gives rise to another observation. Such a suit will be necessary in the event of the company voluntarily determining to close their business. What is to prevent their doing it? We have Mr. Headlam and his coadjutors now willing to undertake this office. But suppose any dissension arose,-suppose they got tired of it, and wished to get rid of the business, and determined to close it and wind up their affairs: in any one of those cases such a suit must become necessary,—a suit that one cannot contemplate without the greatest possible alarm. In every one of those cases, the question will arise,-To whom do the funds now standing in the name of this company belong, and in what proportions? That, of course can only be contemplated in one winding-up suit, such as I have described, and independently of the probability which those two clauses contemplate, of a breach of trust having been committed and being found out, and a final decree being made against them in the Court of Chancery, which is not, certainly, a very violent supposition, they bring it forward themselves, and experience shows that it has happened over and over again. That is one case. There is another: there is the case of a dispute between the company themselves. There is a third: their voluntarily retiring from the business. In each of those cases a winding-up would be neces

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Rejection of the Executor and Trustee Bill.

sary, and all the consequences of such a suit | before your lordships, when they went so far would be inevitable. as the Cape of Good Hope, and bring forward "Then, my lords, with respect to the evi-such a society as this as their battle horse dence that you have heard to day, I think it to support their measure. Mr. Macdonald has been very strongly confirmatory of the told you that the society would manage his views I have submitted to you. Take, for in- affairs at less expense than they would be stance, the evidence given by Mr. Stein. He managed if he had made a simple will. He tells your lordships that in the society which he also told your lordships that there was no inmentions at the Cape of Good Hope, there is vestigation of the accounts, nobody knew anya distinct provision that the funds of the com- thing about the investments, except themselves, pany shall never be invested upon any security or the state of their affairs. When we come excepting land security. He says, at the outset to the next witness, Mr. Sutherland, there is of the company they kept every single trust another still more important illustration of the fund quite distinct. That is according to the way in which these companies are conducted. ordinary course, when an association starts He says he understood the terms of their deed first. They start in the most plausible and fair to be, that they might lend upon any security; manner. They perform their duty in the man- and he says, in point of fact, that they do lend ner pointed out by their charter or their trust upon security which, if Mr. Stein's evidence is deed, and everything goes on smoothly-but, correct, was altogether unauthorised. I will even with respect to this model company, what take it either way: either you have a company 'is done? Why, within a few years they find authorised to invest money which is not their this not a convenient mode-they mix up all money, but their cestui que trusts', upon any the trust funds together. security whatever. Nothing can be more pre"They found it inconvenient to do that which judicial: or, taking it that Mr. Stein was was their plain duty to keep the moneys correct, and that they were not authorised to separate; they found they could make much lend, except upon landed security, we have in more by mixing it all together; they found it this model company exactly an instance of so much more profitable and convenient that that which I urged as being the continual practhey undertook to guarantee every man his tice of joint-stock companies, the practice of money. What real guarantee is that? He continually deviating from what is the plain has no means of knowing what are the funds line of their duty. We find these companies of the company. Their accounts have never beginning most accurately, making proper inbeen investigated; nobody has ever seen any-vestments, but in the course of a short time dething about them except themselves, and al-parting from that, mixing up the trust funds, though they may have obtained perfectly good and lending the money upon security altogether credit for 20 years in this colony, they may at unauthorised by their constitution. I say that this time be as perfectly insolvent as many of is an exact instance of what here will take those companies who have paid 10 or 12 per place. You will find all these companies will cent. until the moment they failed and the be bidding against each other. Although they bubble burst. Your lordships are aware of the will begin very regularly, they will depart from peculiar circumstances of the colony. Like the purposes for which they were originally the two gentlemen who came before you from constituted, and conduct their business in a that colony, they are people going backwards manner inconsistent with their Acts of Parliaand forwards from time to time, and of course ment or deeds, and also in a manner inconthey meet with great difficulties as to the settle-sistent with the proper security of their cestuis ment of their affairs. Their difficulties are so que trustent.

the affairs of this company, but from his position is altogether incapable of giving that close, constant, and personal attention which Sir John Patteson has described as being indispensable for the security of the public and of the cestuis que trustent.

great, that it is the established law that if a "I think I need not trouble your lordships man makes his will and appoints an executor with any observations on the evidence of Mr. or trustee, that executor or trustee has a right Headlam, or that of Mr. Wadeson. He comes to charge a larger sum than that which this not having considered the matter at all; and I company would charge, therefore, so far from use Mr. Headlam himself as an instance of a being a company to increase the amount pay-person who is willing to undertake to manage able for the execution of trusts, this company is formed to diminish the amount. But for them, the estate would be subject to greater charges. And, says Mr. Stein, I have made a bargain which will enable me to get my estate administered at a less expense than it would otherwise be administered, and also, my lords, he says, it is a small place, everybody knows his neighbour, therefore, the affairs of this company are, in fact, managed by this board of five persons, very much in the same way as a common trust would be managed by four or five trustees who may be named by the original testator. The promoters of this Bill, ably as their case has been conducted, must have felt they were greatly in want of evidence of weight to bring

'With reference to this company as with the first, I shall submit to your lordships that they have not made out any case that will induce your lordships, upon these private Bills, to express an opinion-an opinion which is to be used, as your lordships have been told, most extensively-to be circulated through all the community, and to be brought forward even as a decision before the tribunals of the Court of Chancery. Your lordships are asked

Executor and Trustee Bill.-New Statutes.-Amended Bills of Exchange Bill.

121

AMENDED BILLS OF EXCHANGE

BILL.

This

to establish the legality-I must be allowed to use the phrase, although my learned friend, Mr. Clark, objects-the legality of trading in trusts and making a profit of that trade; your lordships are asked to establish the limited lia- THERE seems to be some extraordinary bility of trustees and the absence of personal misapprehension regarding the effect of responsibility in those trustees; you are again, this Bill as last amended. One of our conwithout any sufficient evidence, asked in this temporaries assumes that all bills payable measure to sanction a company taking an un-in the country, when dishonoured, must be limited quantity of land, and powers to manage sent up to London to be protested. land by means of a board of directors; you are also asked to contradict that principle which supposes that the London notaries must which was laid down, as I have said, by the despatch their clerks to all parts of the Legislature, and sanctioned only yesterday by kingdom, for they cannot delegate their that decision of the Vice-Chancellor Kindersley, functions except to the clerks in their office. that a corporation is not a proper body to It appears also to be supposed that there whom to confide any trust, even although that are no notaries except in London, whereas trust may be in its nature a perpetual one, and there are several in all the principal towns. a trust which involves the necessity of applica- By the 3 & 4 Wm. 4, c. 70, the limitation tion to the Court of Chancery for the appoint of the faculty of notaries (requiring an apment of new trustees. Notwithstanding all that, the objections are so great, that the Courts prenticeship of seven years) applies only to have always hitherto refused to appoint corpoLondon and within 10 miles thereof, and rations. Your lordships are asked, upon this by the 2nd section attorneys previously enevidence, to overrule all these objections. I rolled in any of the Courts of Westminster submit no such case is made out; and that you may be admitted as notaries out of those will leave the promoters of this Bill, if they can limits,-the Master of the Court of Famake out a case for altering the law, to bring culties being expressly authorised to admit it forward in some general measure, which may be opposed by much more effectual means than a sufficient number of notaries for the convenience and accommodation of each district. I have been entitled to bring forward.” We observe that complaint is made that

NEW STATUTES EFFECTING ALTE-by the Bill, as amended, the County Courts RATIONS IN THE LAW.

have no jurisdiction under the Act; but it could scarcely be expeeted that those Courts.

COUNTY COURT EXTENSION ACTS AMEND- should be empowered, like the Courts at

1. That the right and mode of appeal given by the 14th section of the Act of the 13 & 14 Vict. c. 61, as amended by the 2nd and 3rd

sections of the Act of the 15 & 16 Vict. c. 54, shall extend to all cases decided after the passing of this Act in which jurisdiction is given by the 17th section of the said first-mentioned Act in consequence of the agreement of parties; but it shall be lawful, when both parties shall desire that the decision of the County Court Judge shall be final, to exclude such right of appeal, by expressing such their desire in the memorandum of agreement directed by the said 17th section to be filed with the clerk of the Court.

2. The provisions of the 18th section of the Act of the 15 & 16 Vict. c. 54, shall extend to all cases of petitions for protection from process made to a County Court under the provisions of the Acts of the 5 & 6 Vict. c. 116, of the 7 & 8 Vict. c. 96, and of the 10 & 11 Vict. c. 102, as fully as if the filing of every such petition had been required to be registered by the

18th section of the first-recited Act.

Westminster, to determine whether exccution should issue or not, or whether the defendant should be allowed to defend the action. Besides it will obviously be more beneficial to the public at large that there should be one place of registering dishonoured bills, instead of a registry at every County Court town.

It is further supposed that the notarypublic will conduct the business in the Registry Office in London. This is surely a mistake,-his function will cease with the protest. The office will be attached to the Court of Common Pleas, the proceedings in which are necessarily confined to the attorneys of that Court. Upon the registration the party will be entitled to an order of Court and judgment, with stay of execution for six days.

It is very doubtful whether the public will gain anything by this alteration of the Law. It may be a question, indeed, whether the expense will not be greater than under the Common Law Procedure Act. There will be,- 1st, the expense of noting the bill; 2nd, of protesting it; 3rd, of registering it in the new Office of the Common Pleas; 4th, of the Judge's order; 5th,

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Amended Bills of Exchange Bill.-New Orders in Chancery.

of the judgment. These expenses must be fifth day of the ensuing Michaelmas Term, and incurred whether in town or country. is to expire on that day unless enlarged by There must be a professional charge for order. Provided always, that in cases where preparing the document which has to be the above-mentioned periods of 14 days and left with the registrar, and of course for at-virtue of this order, the seven days within nine weeks respectively, shall be extended by tending him and payment of fees of office. which the plaintiff is bound to file his affidavits In the case of country bills, after they have in reply and the month during which a witness been presented, noted, and protested in the is subject to cross-examination, shall be retown where they are payable, they must be spectively taken to commence from the expirasent up to London to be registered, tion of such extended period.

Wherever there is a defence to the action, the proceedings will go forward as usual. The registration of the protest will be like an interlocutory judgment. A summons before a Judge must be taken out by the defendant, supported by special affidavits, showing a prima facie ground of defence, the costs of which, with the attendance before the Judge (sometimes by pleaders or counsel) will be equal to the expense of writ of summons and declaration.

NEW ORDERS IN CHANCERY.

TIMES

DOCUMENTS.-GUARDIANS.-OFFICE

a

II. Any Judge of the Court whose chambers vacation, may be open for business during any may issue summonses for the purpose of any proceeding before the Master of the Rolls or any Vice-Chancellor at chambers after the vacation.

III. The same course of procedure as is now in use as to the production of documents ordered to be produced before the hearing of a cause, shall extend and be applied to the production of documents ordered to be produced after the hearing of any cause or matter.

IV. In all cases in which the certificate of the Chief Clerk is to be acted upon by the Accountant-General of the Court without any further order, such certificate may be signed OF PROCEEDING.- PRACTICE AT and adopted by the Judge on the day after the JUDGES' CHAMBERS. PRODUCTION OF same shall have been signed by the Chief co-Clerk, unless any party, desiring to take the opinion of the Judge thereon, obtains a summons for that purpose before 12 of the clock on that day. And the time for applying to discharge or vary such certificate, when signed and adopted by the Judge, is to be two clear days after the filing thereof.

PIES. TAXATIONS, &c.

1st June, 1854. THE Right Honourable Robert Monsey, Lord Cranworth, Lord High Chancellor of Great Britain, by and with the advice and assistance of the Right Honourable Sir John Romilly, Master of the Rolls, the Right Honourable the Lord Justice Sir James Lewis Knight Bruce, the Right Honourable the Lord Justice Sir George James Turner, the Honourable the Vice-Chancellor Sir Richard Torin Kindersley, the Honourable the Vice-Chancellor Sir John Stuart, and the Honourable the Vice-Chancellor Sir William Page Wood, doth hereby in pursuance of the Acts 15 & 16 Vict. cc. 86, 87, and in pursuance and execution of all other powers enabling him in that behalf, order and direct:

That all and every the orders, rules, and directions hereinafter set forth shall henceforth be, ad for all purposes be deemed and taken to be, General Orders and Rules of the High Court of Chancery, viz. :

I. If the 14 days within which, pursuant to the Orders of the Court, a defendant is bound to file his affidavits in answer to a motion for a decree, or the seven days within which the plaintiff is bound to file his affidavits in reply thereto, or the nine weeks after issue joined, within which the evidence in any cause to be used at the hearing thereof is to be closed, or the month after the expiration of such nine weeks within which a witness who has made an affidavit intended to be used by any party to such cause at the hearing thereof is subject to cross-examination, shall expire in the Long Vacation, the time for the several purposes aforesaid respectively is hereby extended to the

V. In all cases in which any person required to be served with notice of a decree or order pursuant to the eighth rule of the 42nd section of the Act 15 & 16 Vict. c. 86, may be an infant, or a person of unsound mind not found so by inquisition, the notice is to be served upon such person or persons, and in such manner as the Judge to whose Court the cause is attached may direct.

VI. Guardians ad litem appointed for infants, or persons of unsound mind not found so by inquisition, who shall be served with notice of any decree or order, are to be appointed in like manner as guardians ad litem to answer and defend are now appointed in suits on bills filed.

VII. At any time during the proceedings at any Judge's chambers under any decree or order, the Judge may, if he shall think fit, require a guardian ad litem to be appointed for any infant, or person of unsound mind not found so by inquisition, who has been served with notice of such decree or order.

VIII. In all cases in which notice of a decree or order shall be served pursuant to the eighth rule of the 42nd section of the Act of 15 & 16 Vict. c. 86, the notice so served is to be entitled in the cause, and there is to be endorsed thereon a memorandum in the form or to the... effect following, that is to say, "Take notice, that, from the time of the service of this notice, you [or, as the case may be, the infant, or per