« EelmineJätka »
called upon to fulfil his duty as a surety, not prepared to say that there was such and to pay the debt for which he had so laches in not taking possession the instant become surety. He will be discharged the interest became due, as would have enfrom his liability as surety, if the creditors titled the defendant to maintain that he was have put it out of their power to hand released ; that is a question which might over to him the means of recouping have been left to the jury, but, the inhimself by the security given by the terest being due in February, and no step principal.
having been taken until the bankrnptcy The proposition is clearly expressed in intervened in August, although one of the notes to Rees v. Berrington (7)—“ As the creditors, an attorney, was aware that a surety on payment of the debt is en- bankruptcy was impending, I think it clear titled to all the securities in the hands of that I ought, being in the place of a jury, the creditor, whether he is aware of their to find that the plaintiffs have been negliexistence or not, if the creditor who has gent, and that therefore the defendant, as had or ought to have had them in his surety, should be discharged to the exfull possesssion or power, loses them, or tent of the amount which would be realised permits them to get into the possesssion by the sale of the goods. Under the cirof the debtor, or does not make them cumstances of the case, it does not seem effectual by giving proper notice, the that the defendant would have been able, surety will, to the extent of such security, supposing the security to have been be discharged. A surety, moreover, will handed over to him, to have realised more be released, if the creditor, by reason of than 3001., and he would remain liable for what he has done, cannot on payment by 71. 10s., for which the verdict must be the surety give him the securities in entered for the plaintiffs. exactly the same condition as they for- Quain, J.-I am of the same opinion. merly stood in his hands.” Numerous The rule, as laid down in Strange v. cases are cited in support of that propo- Fooks (8), is in these words—“It is per. sition. Now, has there been in this case fectly established in this Court that if, any such failure of the power to avail through any neglect on the part of a themselves of the security by the plain- creditor, a security to the benefit of tiffs, the creditors ? It has been con- which a surety is entitled, is lost, or is tended that they had no power to realise not properly perfected, the surety is disanything by sale until they had given a charged.” I think that this case falls month's notice, but by the deed the mort- directly within that decision. Nothing gagors were only entitled to retain
posses- can be stronger than the words of the sion until they had made default in pay- deed. [His Lordship read them.] It is ment of the interest: as soon as that plain that on default in payment of the happened, the mortgagees have the or- interest, the creditors could enter and dinary right of mortgagees to seize the seize, although they could not sell until goods, although they could not sell until they had given the month's notice. It is they had given the month's notice. The clear that default was made in payment of mortgagors made the default in February, the interest due on the 25th of February, by failing to pay the interest which then 1871, and the plaintiffs took no steps became due, and the mortgagees could either to register the deed if that ought then at once, if they chose, have taken to have been done, or to prevent the possession, the effect of which would goods being in the reputed ownership of have been to defeat the provisions of the Burns & Pim. They did not take posBills of Sale Act, and prevent the seizure session, but allowed them to remain in of the goods under the petition as being the possession of Burns & Pim. The atin the order and disposition of the bank- torney who acted in the liquidation was rupt, so that they might hold them as a co-partner in business with Billing, one against the trustee in bankruptcy. I am of the plaintiffs, and it is clear that they
knew that Burns & Pim were in difficul. (7) 2 White and Tudor's Leading Cases in Equity, p. 907 (edition 3).
(8) 4 Giff. 408.
June *27, 28. }
OSGOOD V. NELSON.
ties before the 5th of August. They Chancellor, and by the 13 & 14 Vict. c. 61. allow the whole of the property to be 8. 4, the power to appoint is left as before, but swept away under the bankruptcy and the
power to remove is vested in the Lord sold for the benefit of the estate. The Chancellor solely. surety was entitled to have that property Charges had been informally made against handed over to him.
the registrar of the above mentioned City
Court, and the same were investigated by a Rule absolute to reduce the damages committee of the Common Council, who re71. 10s.
ported that the duties of the office had not
been properly discharged by the registrar. Attorneys–Billing & Venn, for plaintiffs ; Merri
The evidence taken on the enquiry was man & Powell, for defendant.
printed and supplied to the members of the Common Council and to the registrar, and at a council afterwards held, it was resolved that the registrar should shew cause on a day named why he should not be removed
from his office. The registrar shewed cause [IN THE HOUSE OF LORDS.]
by counsel, who argued that the only charge 1872.
specifically made against him was too vague, being that he had not properly discharged
the duties of his office; and that the evidence Sheriffs? Court of the City of London
adduced before the committee did not support -Removal of Registrar-London (City)
either the more definite charges informally Srall Debts Acts, 10 & 11 Vict. c. lxxi. ;
brought against him, or the vague charge. 15 Vict. c. lxxvii. s. 11–County Court
made by the report of the committee. He Acts, 9 & 10 Vict. c. 96. s. 24; 13 & 14
declined to adduce further evidence. The Vict. c. 61. 8. 4; 28. 8. 29 Vict. c. 99. 88.
Councii then removed the registrar from his 4, 21.
office and appointed the defendant in his By the 15 Vict. c. lxxvii. s. 11, the chief place : clerk of the London (City) Small Debts Held, first, that the County Court Acts Court is to be appointed by the Mayor, Alder- did not affect the jurisdiction to remove conmen and Commons, and it shall be lawful ferred by section 11 of 15 Vict. c. lr.cvii. for them, in case of the clerk's inability or Second, that although the charge of immisbehaviour, or for any other cause which properly discharging his duties might of may appear reasonable to them, the Mayor, itself have been too vague, still as, by the Aldermen and Commons, to remove such course of the enquiry, the registrar had been clerk.
made acquainted with the particular heads By the 28 f. 29 Vict. c. 99. 8. 4, the of accusation on which the general charge jurisdiction exercised by the judges of the was founded, and evidence had been adduced, Metropolitan County Courts is conferred in support of such heads, and matters were upon the judges of the City Court, except thereby charged, which, if proved, might the power of appointing officers, and the title seem to the Mayor, Aldermen and Communs, of the chief clerk of the City Court is changed reasonable cause for his removal, and he to registrar, and by section 21 it is enacted had had every opportunity of meeting such that that Act and the 9 8. 10 Vict. c. 95 evidence, it was not competent for any Court and any Act amending or altering the same,
of Common Law, or for this House sitting to shall be read and construed as one Act,
review the decision of such Court, to interfere as if the several provisions in the said Acts
with the conclusion arrived at on the evidence, referred to were repealed and re-enacted in or the consequent judgment pronounced by that Act.
the Court of Common Council in the exercise By the 9 & 10 Vict. c. 95. 8. 24, the ap- of the jurisdiction conferred upon them by pointment of the clerks of the County Courts the Act, and also their removal for inability or misbehaviour is vested in the judges of such This was a proceeding in error from the Courts subject to the approval of the Lord Court of Exchequer Chamber, which had New Series, 11.-Q.B.
affirmed a judgment of the Court of “I
propose and desire to prove-1st. Queen's Bench, upon a rule nisi for an That all special pleadings, awards, orders information in the nature of a quo of reference, confessions of debt, notices warranto granted by that Court against for new trials, to vary orders, to set aside the defendant to shew cause by what awards, to review taxation of costs, &c., authority he claimed to exercise the office are required by the Act of Parliament or or franchise of chief clerk or registrar of rules of the Court, to be directed to and the Sheriffs' Court of the City of London. served upon the registrar of the Court,
When the defendant appeared to shew and are afterwards preserved and filed by cause, it was agreed that an action should him as evidence of the minute book and be brought by the plaintiff to recover the proceedings in Court. fees received by the defendant as payable “ 2nd. That the duties Mr. Osgood, as to the registrar of the above Court, and registrar of the Court, desires to impose thata Special Case should be stated therein on me, viz., that of taking charge in Court for the purpose of raising the question of, and accounting to the judge for, all whether the plaintiff had been properly such special pleadings and other matters removed from that office. The Special as above mentioned, as well as of all Case was stated by an arbitrator, the correspondence to the judge, or to himself parties not agreeing. The Special Case is as registrar, in reference to complaints, very
voluminous; the facts disclosed by it or other proceedings in Court, are no part may be shortly stated as follows
of the duties of the high bailiff, and have In 1856 the plaintiff, Mr. Osgood, was never been performed by him, but are enappointed by the Common Council of the tirely and exclusively the duties of the City of London registrar of the Sheriffs' registrar of the Court, and as such hare Court of the City of London, under the been performed by him since the estaLondon (City) Small Debts Act, 1847, blishment of the Court in 1847. and the London (City) Small Debts Ex- “ 3rd. That as high bailiff, I am protension Act, 1852, section 11 of which bibited by the London City Small Debts last mentioned Act (15 Vict. c. lxxvii.) Act from accepting the office of registrar, enacts, that it shall be lawful for the in the execution of the Act, under a Mayor, Aldermen and Commons in case penalty of 501. for every such offence, and of inability or misbehaviour of the clerk am liable to dismissal from my office by (now registrar), or for any other cause which the Corporation. may appear reasonable to them, to remove “ 4thThat the whole of my duties as such clerk. At the time of the appoint- high bailiff have been performed regularly, ment of the plaintiff as registrar of the faithfully, and properly. Sheriff's' Court, Mr. Aikman was high “ 5th. That I have never disobeyed, or bailiff of the same Court. About the year refused to perform any order made, either 1865 disputes arose between these gentle- by the judge or the Corporation in remen, and in August of that year Mr. ference to the duties of the Sheriffs' Aikman, who had previously been in the Court.
John R. AIKMAN." habit of performing certain ministerial “ October 22nd, 1866." offices in the Court, objected to the further The committee finding that the plaindischarge of those offices on the ground tiff was affected by the statements of Mr. that they were part of the duties of the Aikman furnished him with a copy of the registrar, Mr. Osgood. A correspondence correspondence and requested him to ensued between Mr. Aikman and Mr. answer Mr. Aikman's statement in writCommissioner Ker, the judge of the Court, ing, and this he did in an elaborate writand the matter coming before the Lord ten statement, which was laid before the Mayor and Common Council
, it was re- committee at its next meeting, on the ferred to the officers and clerks' com- 30th October, 1866. Mr. Aikman theremittee for them to enquire into and report upon handed to the committee two further upon it. Mr. Aikman, the high bailiff, written statements, as followsattended before the committee, and handed “I will prove that the clerks or some to tl.em the following written statement- of them who sat in Court and minuted the ju lgments, took the judgments down mittee reported finally. Their report, so in pencil
, and that afterwards they were far as is material, was as followswritten in ink by the registrar. I should “We, whose names are hereunto sub. think that Mr. Marshall, Mr. White, Mr. scribed of your committee in relation to Tilt, Mr. Deacon, and, I might also say, officers and clerks, do certify that our reon many occasions the late Mr. Thomp- port presented to this honourable Court son and the present Mr. Grant, often on the 13th December last, on the refe. minuted the proceedings in pencil in rence of the 18th October last, and for Court, and they were afterwards copied in further powers to enable the committee ink by the registrar. John R. AIKMAN. to investigate certain allegations affecting “ Oct. 30th, 1866."
the registrar and the high bailiff of the " That Mr. Osgood does not attend Sheriffs' Court having been agreed to and personally to the correspondence of the ordered accordingly, we decided to request Court. That the correspondence relates the assistance of Mr. Recorder and Mr. to remittances of money, and almost Common Serjeant in the conduct of the to all other matters coming before the enquiry, and also to secure the attendance Court.
of a shorthand writer to take notes of “ John R. AIKMAN. proceedings. Having appointed a special “ Oct. 30th, 1866,"
day for proceeding with the investigation Copies of these two statements were under the reference, Mr. Common Serjeant furnished to the plaintiff.
and the judge of the Sheriffs' Court were The committee met again on the 26th present, and a shorthand writer attended November, 1866, and having made further and took notes of proceedings. Mr. Osinquiries into the matters referred to good, the registrar, having previously obthem, and being specially attended by the tained by permission of the committee a Common Serjeant to assist them in the copy of the letter of Mr. Aikman, and conduct of the enquiry, reported provi- also of memoranda in connection theresionally to the Court of Common Council
, with, handed in by Mr. Aikman and duly and requested further powers to investi- signed by him, and Mr. Aikman having gate the charges.
been supplied with a copy of Mr. Osgood's The power asked for was given and the letter in reply thereto, the two gentlemen committee again met and took evidence, attended before the committee. Mr. both Mr. Aikman and Mr. Osgood at- Aikman was in the first place examined tending and cross-examining each other's by the Common Serjeant. Mr. Osgood witnesses and freely addressing the com- then put questions to Mr. Aikman, and mittee. These proceedings occupied four the Judge of the Court at the request of days, during which, in addition to the the committee gave such information as charges already made by the High Bailiff, was desired. At the request of Mr. Aikwhich were, as summed up, in the trial man the following witnesses were called in the Queen's Bench, by Cockburn, C.J.: and examined : Mr. William James Grant, First-That Mr. Osgood did not give per- clerk of the judgments, Mr. James Cutler sonal attendance; Second–That he al- Tilt, cash clerk, Mr. William Henry White, lowed his duties to be performed by clerks, ledger clerk, Mr. Robert William Marshall, who made the minutes in pencil, he after- copying clerk, and at the request of Mr. wards copying them in ink and signing Osgood the following witnesses were them; and third- That he neglected the called and examined : Mr. Abraham correspondence of the Court, though it Brown and Mr. Moses Coleman, bailiff's. related to money orders and other matters By permission of the committee and with of importance. A further head of charge the concurrence of the Judge of the Court, developed itself, namely, that Mr. Osgood both Mr. Aikman and Mr. Osgood exhad substituted a seal for his signature, amined that learned gentleman. The and by this means allowed the clerks to examination of the witnesses occupied put his signature to documents which he three sittings, and the committee having ought to have signed himself.
then ascertained that neither the regisOn the 12th of March, 1867, the com- trar nor the high bailiff desired to call
any further witnesses, a fourth day was At a Court of the Common Council appointed, when Mr. Osgood and Mr. held on the 21st of March, 1867, the Aikman addressed the committee upon above report was read, and it was resolved their respective cases. The transcript of and ordered that a copy of the report the shorthand writer's notes having been
now read be furnished to Mr. Osgood, laid before the committee at each suc- and that he be at liberty to inspect and ceeding meeting, a fifth day was ap- take copies of the evidence which has been pointed upon which to consider the evi.
given before the committee, and that he dence taken. In addition to the evidence, do shew cause to this Court on the 4th of the transcript of the notes contains the April next at twelve o'clock at noon why various proceedings and documents which he should not be removed from his office were brought under the notice of the of chief clerk or registrar of the Sheriffs' committee during the progress of the Court of the City of London. enquiry. We have given the most anxious The day was postponed at Mr. Osgood's attention to the whole subject, and we request, and on the 2nd of May, 1867, he feel it to be our duty now to submit the appeared by his counsel, Mr. Serjeant result thereof in the following resolutions, Tindal Atkinson, at a Court of the Com. viz., “Resolved unanimously, that, in the mon Council. His counsel then declined opinion of this committee, the duties of to produce further evidence. The evi. chief clerk or registrar of the Sheriffs’ dence taken before the committee had Court have not been properly discharged been printed and circulated among all the by Mr. Osgood. Resolved that, in the members of the council, nearly 400 in opinion of this committee, the duties of number, and it had been supplied to Mr. chief or high bailiff of the Sheriffs' Court Osgood. His counsel, then, relying that have not been properly discharged by Mr. the proceedings were not such as should Aikman.
affect Mr. Osgood's position, not because The report then set out that the com- there was no specific charge formally mittee had resolved to take the opinion of made against him, but because if the the Recorder and Common Serjeant, as statements made by Mr. Aikman were to to the powers of the Common Council to be treated as charges, the evidence adamove the high bailiff and the registrar duced did not support such charges, of the Court, and it set forth the opinion addressed the Court to that effect. At the they had obtained from those learned conclusion of the speeches of the counsel gentlemen, and the report was signed by the Court deliberated with closed doors, W. C. Fowler, the chairman, and by fif- and by a majority of sixty-nine to eleven teen members of the committee.
they arrived at the following resolutionsBy the practice of the Court of Com- “Resolved, that in the opinion of this mon Council and their committees, seven Court the duties of chief clerk or regismembers of a committee constitute a trar of the Sheriffs' Court have not been quorum, and in order to authenticate and properly discharged by Mr. Osgood. give validity to a report of a committee, "Resolved. That this Court having it is not necessary that it should be signed carefully considered the evidence as to the by more than seven members. Of the manner in which the duties of the office members of this committee who signed of chief clerk or registrar of the Sheriffs' the report, only four attended every meet- Court have been discharged by Mr. ing of the committee, but there were Osgood, is of opinion that reasonable seven who had attended on each of the cause exists for his removal from his said three days when evidence was taken. office, and this Court doth hereby remove
It will be observed that the first charge him accordingly." distinctly brought against Mr. Osgood And at the same Court the defendant, by the Common Council or its committee Mr. Thomas James Nelson, was appointed is that contained in the resolution em- pro tempore chief clerk or registrar of the bodied in the last report, namely, that the said Sheriffs' Court. duties of registrar of the Sheriffs' Court At the hearing of the Special Case behave not been properly discharged by Mr. fore the Court of Queen's Bench it was Osgood.