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appoint and pay law agents and factors, to discharge trustees who have resigned, to grant leases, to uplift and discharge debts, to compromise claims, and to pay debts without requiring creditors to constitute them. Clauses conferring these powers may therefore be omitted in future trust-deeds. The Court of Session, or the Lord Ordinary in the Bill Chamber in vacation, may also authorise trustees to sell, feu, excamb, or let on long lease, the trust estate, to borrow money on the security of it; and these powers may also be conferred by the beneficiaries, if they are of age, by deed of consent. Powers of sale may be exercised either by private bargain or public roup, unless otherwise directed ; funds may be invested in the public funds or Bank of England stock; and money may be advanced from capital for the maintenance and education of beneficiaries. The Act also provides for the discharge by the Court on summary petition of a trustee resigning who cannot otherwise obtain a discharge. It gives a form of resignation, regulates the resignation of a sole trustee and the assumption of new trustees, or their appointment by the Court when they cannot be assumed under any trust-deed. It also enables a beneficiary under a lapsed trust to complete his title to property under the authority of the Court. The powers of the Court under the Act are to be exercised by any Lord Ordinary, and the powers conferred by the Act on trustees and on the Court may be expressly negatived, varied, or limited by any trust-deed.


The seeming inequality in the former law of Master and Servant, as regulated by Geo. IV. c. 34, and other statutes, has been remedied by 30 & 31 Vict. c. 141. It may be questioned whether the harshness which was complained of was more than an apparent one, but at all events it had become incompatible with the ideas of the age that there should be a criminal jurisdiction under the sanction of imprisonment against a workman for breach of his contract of service, while the remedy against the master under the same contract was inerely an order for payment of wages enforced by a warrant for sale. The leading principle of the new Act, which proceeds on the recommendations of Lord Elcho's Committee, is that the remedy against each party shall be, in words at least, the same. The third section of the Act limits the scope of the Act to such contracts of service as are within the meaning of the former Acts on similar subjects, which are enumerated in Sched. I. The Act changes the manner of determining questions between employers and certain classes of servants, but not the questions that may be determined. Only if (1) “the contract of service,” (2) “ the employer and employed, and (3)

" the case, matter, or thing arising under or relating to such contract," and upon which the Justices or Sheriff* are required to adjudicate, be such as they might have adjudicated upon if the new Act had not been passed, does the case come within their jurisdiction under the new Act.

The contract, the parties, and the subject matter of the dispute being such as the Justices of Peace might previously have entertained, the Sheriff or Justices may now (sec. 4) proceed to ascertain (1) if either party has neglected or refused to fulfil the contract; (2) if the employed has neglected or refused to enter to or commence his service according to the contract; (3) if the employed has absented himself from the service; (4) if any question, dispute, or difference, has arisen as to the rights or liabilities of either party ; or, (5) if there have been any misusage, rnisdemeanour, misconduct, ill-treatment, or injury to the person or property of either party under such contract of service. We may observe that a question was raised in some London Police Courts, with special reference to this sec. and sec. 9, whether the Act did not take away the jurisdiction of Justices, under 20 Geo. II. c. 19, to order payment of wages in certain cases. That Act is seldom or never used in Scotland, (Barclay's Dig. p. 639), but its summary remedy may sometimes be convenient. Several magistrates of police in London have, after consultation, come to the conclusion that there is no power under the new Act to order payment of wages, and “that only such provisions of the old Acts are annulled as are repugnant to the new one." (Times, September 25 and 26). +

A party aggrieved in any of the respects above enumerated may make a complaint in the form supplied in the Schedule to a Justice


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* By the interpretation clause the word " Magistrate” in the Act does not apply to Scotland; and it is to be observed that this whole class of cases which was formerly confined to the Justices of Peace is now competent before the Sheriff.

t This view is confirmed by a private letter written by Mr Oke, a high authority on such questions, which is published in the Law Times, and which, as

throws light on the history and prospects of this statute, we here annex:

“I am now preparing a new edition of my 'Formulist,' which will bring the law down to the end of the last session, and include forms under the Master and Servants Act, 1867. With reference to the mooted question whether the jurisdiction of justices to order payment of wages is taken away' by the 30th and 31st Vict. c. 141, an opinion to that effect having been, as appears by the newspapers, very hastily expressed by some of the metropolitan police magistrates (but in which I observe you do not, nor can I concur), I am desirous to state for your information, as well as that of others, that that was not, as I know, the intention of those who printed the Bill in Parliament, if not of the Legislature, for the measure was intended solely as a substitute for the punishment by imprisonment, and for misbehaviour and other breaches of the contract by servants, and to give to the servant the same remedy for such breaches as against the master.

I think you will find on a careful perusal of the provisions of the Act, especially of sect. 4, coupled with the express and limited terms of adjudication authorised by sect. 9, to be made by justices, that the Act goes no further than this; and sect. 3 contines it to these cases strictly. I may say further, in corroboration of this view, that when the Bill came to the House of Lords I was instructed by the solicitors for the pronoters to see if its provisions were workable, and to revise it. I found it in such a state of confusion that, with the exception of some immaterial alterations and addi


or Sheriff, who shall cite the party complained against to appear before two Justices or the Sheriff at a time not less than two or more than eight days from the date of the summons or citation. This must be served (sec. 6) not less than two days before the time appointed. A warrant for apprehension of the person complained against may be issued when he neglects or refuses to appear, and after due proof on oath of the service of the summons; the Justices or Sheriff having it would seem no power to proceed ex parte on the defender's failure to appear.

In case of an intention to abscond the justice or sheriff may (sec. 8), after a complaint has been laid, issue a citation requiring the defender within twenty-four hours to give bail for his appearance to answer to the complaint, and if he fail to appear and give bail a warrant may issue for his apprehension, when he may be detained till he find bail. The Act is silent as to the manner in which it may be made to appear to the magistrate that the defender intends to abscond; but Mr. Saunders, the well-known author of "The Practice of Magistrates' Courts," recommends that in a matter so much at variance with the ordinary course of judicial proceeding no such application should be granted unless facts showing such intention be stated on oath and be reduced to writing. In Scotland the analogy of the procedure against debtors in meditatione fugae may afford some guidance. It will probably be the safest course to require the application to be made by written petition stating the grounds of the applicant's belief, and supported by his oath. This seems also to have been the practice in the somewhat similar procedure (now seldom or never resorted to) for enforcing the attendance of an absconding witness required for a criminal trial (Hume, ii., 375, Macdonald, 499). The further question arises, however, when the defender appears, either in obedience to the citation under sec. 8 or in custody under the warrant, whether he is entitled to lead proof. In Scotch practice, where a person has been apprehended as in fuga and is brought up for examination, both parties are not unfrequently allowed

tions in sects. 4, 9, and 14, the Bill had to be redrawn in its details and procedure, which was accordingly done by Mr F. S. Reilly and myself before it went into committee in the Lords, by whom the altered Bill was adopted, and as it now appears as an Act. I suggested a clause giving justices a general power to order payment of wages to all servants within the Acts; but, upon consideration, and especially as the Act was experimental and limited in duration, it was deemed advisabie to conform the Bill to the object I have mentioned, for which it was originally introduced, and 80 the recovery of wages was purposely kept out of the Act. It is, however, erroneous to say that the justices' jurisdiction is ousted by this Act of 30 & 31 Vict. c. 141; there is no repealing clause in it, and it is a mere partial substitution of remedies; and, as the preamble states, is only “to alter in some respects" the older Acts. If'it had been intended to repeal or alter the justices' power in this respect it would have been done definitely and specifically by Mr Reilly or myself; but as that part of the subject is in no way touched by the present Act, wages are, in my opinion, still recoverable under the old Acts. There was not time to .prepare and pass a consolidation Act in the last session (the Bill did not reach me till July), which I recommended when the measure came into my hands; but, with a view to that end at an early period, the Act is only to last for a year and a session."

(see Bell's Com. ii., 561, Davies v. Duncan, Feb. 9, 1861, 23 D. 532) instantaneously or at a very brief interval to adduce evidence, and there does not seem to be any very cogent reason upon general grounds why this practice should not be admissible under the statute. Mr Saunders, however, comes with regret to the conclusion that under this section “the justice will have no functions upon the appearance of the defendant to enter into the question of whether or not he really intended to abscond, but that having so far satisfied himself of the fact as to be induced to issue his summons it will be his duty on the appearance of the defendant, without hearing any denial from him, to bind him over, or, in default, to detain him in safe custody until the hearing of the information or until he sooner finds such security.” The reasons for this opinion are the absence of any provision for the defendant being allowed to controvert the allegations upon which he was arrested, such as occurs in the Absconding Debtors Arrest Act, 14 and 15 Vict., c. 52, which establishes a form of proceeding corresponding to our meditatio fugae warrant; and the analogy of an application for sureties to keep the peace, in which the party against whom the application is made is not allowed to controvert the truth of the facts stated in the complaint (R. v. Doherty, 13 East. 171). It may be doubted how far these reasons apply to Scotch practice, which, as we have seen, is founded on the common law in the case of meditatio fugae warrants, and in lawburrows does not rigidly exclude proof by a respondent disputing the facts alleged against him. Mr Saunders further proceeds on the assumption that the first summons under this section shall only be issued as he advises, on satisfactory and conclusive evidence of the intention to abscond, and not on a prima facie case merely. Upon the whole it is surely advisable that, as nothing in the statute is inconsistent with doing so, Scotch justices and sheriffs should follow the recognized practice of their own country in similar cases; viz., having granted the warrant upon a relevant petition supported by oath, that they should afterwards allow the respondent to redargue the statements in the petition by evidence adduced immediately or at a very early diet.

The 9th sec. empowers two justices or sheriff, after proof of the complaint, to give redress for the breach of contract or inflict punishment for the offence complained of. Under 4 Geo. IV., c. 34 the court could only send the defender to prison with hard labour for a period not exceeding three months, abating wages during imprisonment, or abate the whole or any part of his wages, or discharge him from the service or employment. They have now many alternatives. They may, upon conviction, (1) abate the whole or any part of any wages already due ; (2) direct the specific fulfilment of the contract of service exacting security therefor; (3) annul the contract, apportioning the wages due for so much of it as may be completed; (4) where pecuniary compensation cannot be assessed, or is an inadequate remedy in the circumstances, impose a fine not exceeding L20; (5) fix the damages and costs to be paid to the party complaining inclusive of any wages abated. If the party complained against fail to find security to obey an order made to fulfil the contract a justice or the sheriff (6) may commit to prison for not more than three months ; and power is given (7) to assess compensation or (8) impose a fine in addition to the annulling of the contract. There is no new power conferred to annul an indenture of apprenticeship. A bond of caution for fulfilment of a contract may be enforced (sec. 10) when two justices or the sheriff are satisfied as to the non-performance, by an order for forfeiture of the whole or part of the sum secured, which sum shall be recovered under the Suminary Procedure Act, 1864, and a part not exceeding one half may be applied (sec. 13) as compensation to an employer or employed for the breach of contract or other wrong complained of. An order for payment of money may be enforced by poinding or imprisoment, and imprisonment shall be a discharge of a fine or of any sum assessed as compensation. If any injury to property, misconduct, or ill-treatment, shall appear to be of an aggravated character, and not to have been committed in the bond fide exercise of a legal right existing, or bona fide believed to exist, and where the other remedies provided appear to be insufficient, the justices or sheriff may imprison for not more than three months. An appeal to Quarter Sessions is allowed upon finding security (sec. 15). Parties are competent witnesses (sec. 16). Wages are not payable during imprisonment (sec. 17). The Act is not to prevent proceedings by civil action (sec. 18), or criminal indictment (sec. 19), if otherwise competent.

The Act leaves room for future agitation in omitting to declare that fine or imprisonment under the Act shall annul the contract. After some discussion and fluctuation it appears to be decided in England that a contract of service is not determined by imprisonment, and that a workman who has contracted to serve for (say) a year, and has undergone a term of imprisonment for deserting his work, may be proceeded against anew for not returning to work on coming out of gaol (Unwin v. Clarke, 35 L.J., Mag. Ca. 193). In this respect the Act of 1867 seems to have the same effect as that of 1823.



In a former article we stated our opinion as to the general principles on which this statute appears to be based. We shall now indicate very shortly some of the points of practice which will probably arise under it.

I. To what actions does the statute apply? The answer made in Section 2 is, “ All actions of debt that may competently be brought before a Sheriff for house maills, men's ordinaries, servants' fees,

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