« EelmineJätka »
if tendered, and is not at liberty to refuse to do so in order to proceed with a petition which he had joined in presenting.
It was against this decision of the Divisional Court that the appeal was brought.
In the course of the argument in support of the appeal it was pointed out that in the prescribed form of bond to be entered into in cases in which the debtor disputed the petitioner's debt and in which the court directed a trial of the question of liability, the condition of the bond is not for unconditional payment of the debt when established but for payment "on demand ; and it was contended that this indicated that the creditor is at liberty to choose whether he will take the money due to him, or whether he will elect not to accept payment but to proceed with his petition as he could have done when the petition first came before the court if the debtor had not disputed the debt.
The court allowed the appeal on the broad ground that a creditor cannot be required to accept payment of a debt when he is not willing to receive it after presentation of a bankruptcy petition. In giving judgment the Master of the Rolls referred to the fact that if the debtor's contentions were to prevail it would enable a debtor to defeat a petition by joint creditors for small sums by the simple process of disputing the claims of one or more of them and compelling acceptance of the amount due by paying it
The decision of the Court of Appeal is reported in the Law Reports (1910) 1 K. B. 825.
An appeal was brought by a debtor against a receiving order which had been made against him, his allegation being that if time were allowed he could obtain the necessary funds to satisfy the claims of his creditors, and that this was sufficient cause why the registrar in the exercise of his discretion should have dismissed the petition. Under ordinary circumstances the Board of Trade would have considered that the intervention of the official receiver in the appeal was not necessary, but the facts suggested that there was no real ground for the appeal and that it was only brought for the purpose of delaying the proceedings. It was therefore decided to instruct counsel to appear for the official receiver on the appeal. When the case was called on the debtor intimated that he was not prepared to proceed with the appeal, which was accordingly dismissed with costs.
Another appeal involving questions of a somewhat similar character was brought by a debtor from an order adjudging him bankrupt. The order of adjudication was made upon the application of the official receiver under the provisions of Rule 192 of the Bankruptcy Rules, upon the ground that no composition or scheme had been accepted by the creditors at the first meeting or at one adjournment thereof. The debtor's statement of affairs disclosed the fact that his indebtedness amounted to about £2000, due to a large extent to hotel proprietors for board and lodgings supplied to himself and his family, and that he had been in an insolvent condition for some years. The debtor's hopes of meeting the claims of his creditors rested almost entirely upon his chances of earning certain commissions for negotiating the sale of part of the assets of a company carrying on business on the Continent, and for arranging the transfer of certain oil-bearing pro. perties in America. The debtor in no way disputed his indebtedness to the petitioning creditor, nor did he contend that the receiving order against him was not properly made, but he urged that as his ability to carry out these transactions would be destroyed if the fact of his insolvency were published, the court in the exercise of its discretion ought to postpone the official receiver's application for an order of adjudication against him for such a period as would enable him to complete the sale and transfer of the properties in question.
In giving the judgment of the court dismissing the appeal the Master of the Rolls remarked that the Act showed that in the view of the Legislature it was not desirable that when a receiving order is made against a debtor an indefinite period should elapse before he is adjudged bankrupt, and that the court ought to act upon the principle that an order of adjudication should follow a receiving order as a matter of course except where a scheme of arrangement had been duly sanctioned, or under very special circumstances.
An appeal was brought by a bankrupt from an order of the County Court judge refusing to approve a proposal for a scheme of arrangement. The bankrupt was a solicitor, and at the date of his failure his liabilities amounted to £3779, and (according to his statement of affairs) he was possessed of assets to the value of £1947, an estimate, however. which the official receiver considered to be greatly exagge rated. The debtor's proposal provided for payment in full of the preferential debts and of a composition of 78. 6d. in the £ on all provable debts secured by payment in cash within fourteen days from the date upon which the court should approve the proposal.
The proposal was accepted by the statutory majority of the creditors, and on the matter coming before the court the official receiver filed his report thereon, in which he submitted that certain of the facts mentioned in sect. 8 of the Bankruptcy Act 1890 could be proved against the debtor, and therefore that (subject to the court finding one or more of such facts proved) the case was one in which the court was bound to refuse to approve the proposal unless it provided reasonable security for payment of not less than 78. 6d. in the £ on all the unsecured debts provable against the debtor's
The learned County Court judge found that facts had been proved which would make it necessary for the proposal to provide security for payment of the sum referred to, and being of opinion that no security whatever was forthcoming for payment of the proposed composition, he refused to approve the proposal,
The appeal was brought from this refusal, but the Divisional Court decided that there were no merits in the case, and that in their opinion it had only been brought for the purpose of delaying the proceedings under the receiving order. The appeal was dismissed with
I represented the official receiver on an appeal by a debtor from an order of the County Court by which his discharge was refused. The debtor was a surgeon, and his failure was attributable to liabilities incurred by him in connection with litigation in which he had been concerned arising out of the purchase by him of a medical practice. It was alleged by the debtor that he had been induced to purchase the practice by misrepresentation, and upon that ground he refused to pay a portion of the agreed purchase price, with the result that proceedings were commenced against him to recover the money. The action was decided adversely to the debtor, and in an action for libel arising out of the same transactions judgment was also given against the debtor. An appeal was unsuccessfully brought by the debtor from the judgment in the first mentioned action, and there were other proceedings in which the debtor became involved by reason of his refusal to pay the amounts due under the various judgments against him.
An important feature of the case was that during the pendency of the bankruptcy proceedings the debtor became entitled to certain property under the will of his father, and not only failed to disclose the fact to the trustee, but when the latter was put upon inquiry with regard to it the debtor feigned ignorance of the information required by the trustee in order to enable the property to be realised for the benefit of the creditors.
Upon the application for discharge the official receiver filed his report in which he submitted that the debtor had put his creditors to unnecessary expense by a frivolous and vexatious defence to an action properly brought against him, and that the debtor's conduct during the proceedings under his bankruptcy was unsatisfactory, and upon those grounds the learned County Court judge declined to grant the discharge. The Divisional Court modified this order by directing that the discharge be suspended for three years, intimating at the same time, however, that the County Court judge had very substantial reasons for making the order under appeal and that the debtor had behaved very badly.
In my last report I referred to an action at the instance of the Board of Trade against an assurance company in which the question submitted to the court was whether under a fidelity bond entered into by the company to secure the performance of his duties by a trustee in bankruptcy the company were liable to pay certain interest surcharged against the trustee in respect of moneys of the estate which had been improperly retained by him.
The condition of the bond was that it should be void if the trustee well and sufficiently performed all the duties required of him as trustee by the Bankruptcy Acts or rules, or if he should fail therein and the company should make good any loss or damage occasioned by any default to the estate of the bankrupt.
It was submitted on behalf of the Board of Trade that as the interest payable by the trustee became part of the estate his failure to pay it occasioned loss or damage to the estate for which the company were liable under the terms of the bond. The company contended that the true effect of the contract into which they had entered was that they were only liable (to the extent of the amount of the bond) to put the estate into the position in which it would have stood if the trustee had properly performed his duties, and that as the interest in question if paid would represent (to some extent at least) an accretion to the estate it was not in the contemplation of the parties that the company were to be liable to pay the interest.
As mentioned in my former report Mr. Justice Phillimore upheld the contentions of the Board of Trade, and gave judgment in their favour; but the learned judge's decision was subsequently reversed by the Court of Appeal. Lord Justice Vaughan Williams held that the trustee's liability to pay the interest was a liability to a penalty; and that although his failure to pay it was a default, it was not a default"in well and sufficiently performing and executing the duties required of him as trustee," because it was not one of his duties as a trustee to pay the interest. Lord Justice Buckley expressed the same view in a different way by pointing out that the trustee's liability to pay the interest did not arise in the performance of his duty but from its non-performance.
The judgments are reported at length in the Law Reports (1910) 2 K. B. 649.
As a result of the decision the bonds now accepted by the Board of Trade specifically provide that the surety shall be liable to pay any sum which the trustee may have to pay for interest in respect of moneys of the estate improperly retained by him.
2. Actions and other Proceedings to which Official Receivers were Parties. Most of the cases coming within this category were actions for foreclosure in which official receivers as trustees in bankruptcy of various mortgagors were made defendants. In nearly every case the actions ran their normal course, and the facts do not call for special comment in this report. But two of the actions presented features which seem to be worthy of passing reference.
In the first case the execution of the mortgage and the amount due thereunder were not in dispute, and the mortgagee in the course of the proceedings invited the official receiver to consent to an immediate order for foreclosure, it being suggested that the value of the property was such that there was no probability of a sufficient sum being realised by a sale to satisfy the mortgagee's claim. The
official receiver, however, was advised that in the interest of the mortgagor's unsecured creditors he ought to withhold the required consent, at all events until an attempt had been made to test the value of the property by an effort to find a purchaser.
It was accordingly put up for sale, with the result that the purchase money was sufficient to provide for the amount due to the mortgagee, and leave a surplus approximately sufficient to provide for payment of the bankrupt's liabilities in full.
In connection with this case it may be pointed out that it is one of the instances which occur from time to time to justify official receivers in retueing to give way to the pressure which is often put upon them by mortgagees to assign their equity of redemption or otherwise facilitate mortgagees in obtaining an absolute title to the mortgaged property without the payment of any consideration. It is occasionally suggested that such refusals are a hardship on mortgagees and only result in putting them to additional expense. But in fact what official receivers are asked to do in such cases is to make the mortgagee a present of the possibility that the equity of redemption may prove to be of value, and thus to benefit the mortgagee at the expense of the mortgagor's other creditors.
In the second case the mortgaged property was of great value and a large number of charges had been created upon it. From time to time attempts were made to sell the property and eventually a sum was realised nearly sufficient to satisfy the claims of all the mortgagees together with their costs as brought in for taxation. Owing to the magnitude of these costs it was considered desirable to take an active part in the taxation, upon which more than £550 was disallowed, with the result that a fair dividend will be paid to the unsecured creditors in due course out of the surplus after satisfying the mort. gagees' claims.
I represented the official receiver upon a motion to discharge an order by which he was added as a defendant to an action. The order was made under the provisions of Order XVII., r. 2, of the Rules of the Supreme Court, which provides that in case of the bankruptcy of any party to a cause or matter the court may, if it is deemed necessary for the complete settlement of all the questions involved, order that the trustee be made a party. The action was brought by the plaintiff against certain surveyors and solicitors to recover damages in regard to a mortgage transaction, the allegation being that the surveyors in undertaking to advise the plaintiff with reference to the value of the property, upon the strength of which the plaintiff advanced a large sum of money, had been guilty of negligence and were not in a position to make an unbiassed and impartial report inasmuch as they had acted for the mortgagor for some years previously in certain land speculations. As against the solicitors it was alleged that they were fully aware of the relationship existing between the surveyors and the mortgagor and that by advising the plaintiff to employ the surveyors they were guilty of negligence. After the commencement of the action the solicitors were adjudged bankrupt, and the plaintiff thereupon obtained the order of which the official receiver Cor plained.
It was contended on behalf of the official receiver that the claim against the bankrupts, being in the nature of a demand for unliquidated damages arising otherwise than by reason of a contract, was not a debt provable in the bankruptcy and that therefore he, as trustee in the bankruptcy, was in no way a necessary party to the action; and alternatively that if the claim was a provable debt the continuance of the action after the bankruptcy was in fact nugatory so far as concerned the bankrupts and their estate, because the dispute between the plaintiff and the bankrupts should properly be adjudicated upon in the bankruptcy.
Mr. Justice Warrington dealt with the case upon the second point only and he held that the claim against the bankrupts was one which could be determined in the bankruptcy and that consequently the official receiver should not be made a party to the action. The order was accordingly discharged with costs.
An interpleader summons was issued on behalf of the senior official receiver for the purpose of obtaining relief from claims by adverse parties to money in his hands as a trustee in bankruptcy. The case arose out of a bankruptcy in which the creditors nominated a trustee who was subsequently removed from office by the Board of Trade. At the date of his removal a certain amount was due to him in respect of disbursements made by him on behalf of the estate in excess of his receipts; and as there were no assets available to meet the sum due to him, he was entitled to a lien on the moneys which subsequently came to the hands of the senior official receiver as his successor in the trusteeship. Before any such moneys were received he gave the official receiver a written authority to pay to a third party the amount due to him when sufficient funds were received. After the official receiver had come into possession of funds out of which the former trustee's claim could have been satisfied, the latter claimed to revoke the authority to pay the third party, who contended that the authority was not revocable and called upon the official receiver to pay the sum in question in accordance with the authority. As neither party would recede from the position taken up by him, the official receiver had no alternative but to issue an interpleader summons, and an order was made granting him the relief claimed.
3. Reviews of Taxation of Bills of Costs by County Court Registrars. The power given to the Board of Trade by the Bankruptcy Rules to require the taxation by a County Court registrar to be reviewed by the taxing master of the High Court was exercised in two cases. the first case the trustees had rejected the proof of a person who claimed to be a creditor of the bankrupt, and on an appeal being
brought to the County Court judge he overruled the trustees' decision. and besides directing that the proof should be admitted, he ordered that the trustees' costs of the appeal should be borne by them personally. Notwithstanding this direction of the County Court judge, the trustees' solicitor carried in a bill of costs for taxation in the bankruptcy which comprised their costs of the appeal; and the registrar was induced to allow them as being costs properly payable out of the estate. Upon the review counsel for the trustees contended that the power of the taxing master was restricted to adjudicating upon the quantum of the fees charged, and that he had no jurisdiction to deal with the question of whether or not the County Court registrar had properly accepted the bill (or any part thereof) for taxation. The taxing master overruled this contention, and gave effect to the order of the judge by disallowing the items relating to the appeal amounting to nearly £100.
In the other case the costs to which the Board of Trade objected were charged by the trustee's solicitor for work done by him which it was contended should properly have been performed by the trustee personally, and for business undertaken by the solicitor without the prior sanction of the committee of inspection.
The taxing master, in accordance with previous decisions, to which his attention was called, disallowed the costs in question.
4. Motions in Bankruptcy and Miscellaneous Proceedings. A question of some importance as affecting the liability of debtors' estates for the costs of interpleader proceedings was raised on a taxation before the Bankruptcy taxing master and was ultimately considered by Mr. Justice Phillimore and by the Court of Appeal.
Before the commencement of the bankruptcy execution was levied upon the debtor's goods at the suit of three judgment creditors, and shortly afterwards the sheriff was served with notice that the goods seized were claimed by a bill of sale holder. The execution creditors disputed the claim, whereupon the sheriff issued interpleader summonses in respect of each writ of fi. fa.
Upon the hearing of the summonses orders were made by arrange. ment between the sheriff, the claimant, and the respective execution creditors, but without the debtor's knowledge and without his having an opportunity of being heard, by which the sheriff was ordered to sell enough of the goods seized to satisfy the expenses of sale, the rent (if any) due, the claim of the claimant and the execution creditors and to pay these items out of the proceeds of sale, and to pay the residue (if any) to the debtor, and the orders further directed that the costs of all parties to the interpleader proceedings should also be paid out of the proceeds of sale. Before the sale took place a receiving order was made against the debtor, of which notice was given to the sheriff, but as the official receiver had no opportunity of satisfying himself as to the claimant's title under the bill of sale or of obtaining any information as to the value of the goods he took no steps in the first instance to stop the sheriff from proceeding with the sale. Upon ascertaining, however, that the sale of a portion of the goods had resulted in a sufficient sum being realised to cover the expenses of the sale, the landlord's claim for rent, and the amount due to the bill of sale holder, the official receiver intervened by serving notice upon the sheriff to deliver up the unsold goods and the money received from the sale after deducting the oosts of the execution.
The sheriff claimed to be entitled to deduct from the amount in his hands the costs incurred by the interpleader proceedings by himself, the claimant, and the execution creditors as being costs of the execution; but the official receiver disputed the right to make these deductions and required the sheriff to bring in his costs for taxation in the bankruptcy proceedings in order that the bankruptcy taxing master might adjudicate upon the dispute.
It was contended on behalf of the sheriff that the orders in the interpleader proceedings in effect precluded the jurisdiction of the Bankruptcy Court and made it impossible for the master to disallow the costs in question; and that in any event they were proper costs of the execution which he was entitled to deduct under the provisions of sect. 11 of the Bankruptcy Act 1890. The official receiver's answer to these contentions was that as the orders in the interpleader proceedings were made in the absence of the debtor neither he, nor his estate, was in any way bound by them, and as to the second point the master's attention was called to authorities which appeared to show that the expression "costs of the execution" does not include the costs of interpleader proceedings. The master accepted the official receiver's view, and accordingly disallowed the costs.
The sheriff moved before Mr. Justice Phillimore to vary the decision of the taxing master, and the matter was again fully argued. His Lordship's judgment was that as regards the costs of the claimant and the execution creditors the orders in the interpleader proceedings only amounted to a declaration that they were proper costs for the execution creditors to recover under the execution, but in consequence of the provisions of sect. 45 of the Bankruptcy Aot 1883 in the event of the bankruptcy of the debtor before payment the creditors lost the benefit of the orders as part of the benefit of the execution. The taxing master's decision upon these points was therefore confirmed. But the learned judge was of opinion that the sheriff's own costs stood upon a different footing, and that the heriff was right in his contention that they were part of the costs of the execution. He appeared to think that the case was analogous to that in which owing to inter pleader proceedings or other causes the sheriff is allowed his costs of prolonged possession and he made an order allowing the sheriff his costs of the interpleader.
In view of the large number of cases which would be affected by the decision and being of opinion that it would be inequitable that a
bankrupt's estate should be burdened with the costs of a dispute to which the bankrupt was not a party (which should properly be borne by the unsuccessful litigant) the Board of Trade considered that the case was ons proper to be argued in the Court of Appeal. The appeal was accordingly brought and a decision obtained to the effect that the sheriff stands in no better position than the execution creditor of the claimant. The appeal was decided after the period to which this report relates and it is proposed to refer to it at greater length in my next report.
A case in the Kingston County Court in which I appeared for the official receiver upon an application by him for adjudication of bankraptoy afforded an illustration of the difficulty which frequently arises in determining who are the partners in a firm against which a receiving order has been made in the name of the firm and also of the use which can be made of the limitations of the bankruptcy law as applied to married women.
The firm in the case in question carried on business as builders and contractors under the style of H. and Co, and a receiving order was made against the firm in the firm name. As adjudication cannot be made against a firm as such, but only against the partners individually, it was necessary to ascertain who in fact were the persons carrying on business as H. and Co. As a result of examinations held by the official receiver it appeared that two persons with their respective wives were interested in the business carried on by the firm. One of them was a man of the same name as appeared in the name of the firm and may be called H.: the other (whom I will call A) was a builder who had previously been bankrupt and had not obtained his discharge. A's wife posressed some means, and was apparently the only person conn cted with the firm of whom this could be said. H. and his wife informed the official receiver that the partners were Mrs. H. and Mrs. A., and that the business was managed for them by their respective husbands. It was also stated that the reason why the firm was constituted of the wives (who took no part in the management of the business) and not of the husbands was that A. was an undischarged bankrupt and that H. had at the time when the firm was formed a bankruptcy petition pending against him. In support of the statement that the partners in the firm were Mrs. H. and Mrs. A. there were produced to the official receiver the draft of a deed of partnership (which it was alleged had been duly drawn up and executed) between Mrs. H. and Mre. A., a power of attorney executed by them in favour of H, and a request by them to a bank to open an account in the name of H. and Co. and honour the signature of H. under power of attorney with reference to all business connected with the account. The power of attorney empowered H. to sign and indorse cheques on behalf of Mrs. H. and Mrs. A. in their partnership name of H. and Co. and to eign contracts relating to their business as builders and contractors. On the other hand A stated that his wife had never been in partner. ship with Mrs. H., that the business of H. and Co. was, so far as he knew, that of H. and his brother; and that he (A) had merely been employed by the firm as manager. Mrs. A. also denied that she was or had ever been a partner in the firm. The official receiver's inquiries showed that the business of H. and Co. had been, in fact, carried on by H. and A., both of whom gave orders, interviewed creditors, and at one time or another held themselves out as partners. It also appeared that at the end of each week the profits were divided among H. and A. and their respected wives.
On this information the official receiver asked the court to make adjudication of bankruptcy against Mrs. H. and Mrs. A. as partners in the firm of H. and Co. But as the only available act of bankruptcy was failure to comply with a bankruptcy notice the court was unable to make the order of adjudication asked for, inasmuch as it was decided by the Court of Appeal some years ago that bankruptcy proceeding cannot be maintained against a married woman trading separately from her husband even under a firm name on the ground of non compliance with a bankruptcy notice founded upon a judg ment against her in the firm name. The result of the application was therefore that the whole of the bankruptcy proceedings became abortive, and the firm's creditors were practically left without remedy: the firm was insolvent and had no assets which could be taken in execution and the partners in it were not personally liable for its debts.
The case suggests the desirability of alterations of the bankruptcy law in order if possible to place some restriction upon the power of bankrupts to trade on credit under the shelter of names other than their own and to give creditors an effective remedy by way of bankruptcy proceedings against married women who engage in trade.
In two cases I appeared on applications for the transfer to the High Court of Justice of bankruptcy proceedings which were pending in In both that the County Court. cases it was shown majority of the creditors were resident in London and that the proceedings could be more conveniently conducted in the High Court then in the respective County Courts. The applications were accord. ingly granted.
5. Proceedings against Defaulting Trustees under Deeds of Arrangement. I was instructed in 273 cases to apply to the court for orders directing trustees under deeds of arrangement to render accounts of their receipts and payments in accordance with sect. 25 of the Bank. ruptcy Act 1890. In a large proportion of the cases the trustees were prevailed upon to forward the required accounts as a result of correspondence, and proceedings were found to be necessary in fortythree cases only. In three of these, however, the trustees failed to
comply with the orders of the court and I had to apply for orders of committal before the accounts were forthcoming. In one case the order of committal was executed and the trustee underwent a period of imprisonment. R. ELLIS CUNLIFFE, Solicitor to the Board of Trade. Board of Trade, 8th July 1911.
SITTINGS OF THE COURTS.
FOR THE WEEK ENDING SATURDAY, SEPT. 23.
Bolton, Wednesday, and Saturday (J.S.), at 9.30
Braintree, Friday, at 11
Bridgend, Thursday and Friday
Bury St. Edmunds, Tuesday
Downham, Thursday, at 11
Fakenham, Friday, at 11
Faversham, Friday, at 10.30
Hanley, Wednesday and Thursday, at 9.30
Hertford, Wednesday, at 10.30
Wednesday, Thursday (By at 10.30), and Friday (J.S.), at 10
Leicester, Wednesday and Friday, at 10
Lincoln, Tuesday, at 10
Liverpool, Monday (By at 11), Tuesday, Wednesday, Thursday, and Friday (B., A., & W.C.), at 10
Loughborough, Tuesday, at 9.30
Manchester, Friday (R. By), at 10
Oldham, Thursday, at 9.30 Peterborough, Tuesday, at 9.30 Rochdale, Friday, at 9.30 Rochester. Tuesday,
and Thursday, at 9.30
Swansea, Monday, Tuesday, and
Swindon, Wednesday (By at 11), at 10.30
Tenterden, Monday, at 1
Torrington, Thursday, at 10.30
Uxbridge, Wednesday, at 10
day (J.S.), at 10
Westbury, Monday, at 11
Wigan, Tuesday (J.S.), at 9
Other sittings are specially fixed if necessary.
FAIR WAGES CLAUSES IN CONTRACTS. THE following circular has been issued by the Local Government Board to county councils, county standing joint committees, town councils, metropolitan borough councils, urban district councils, rural district councils, guardians, and visiting committees of county and borough asylums :
Sir, I am directed by the Local Government Board to draw the attention of the local authority to the accompanying memorandum embodying the resolution passed by the House of Commons on the 10th March 1909 on the subject of fair wages clauses in Government contracts, and the recommendations made by the advisory committee of representatives of Government departments which has been established as suggested in par, 124 of the report of the Fair Wages Committee of 1908 (Cd. 4422.)
It will be seen that the advisory committee recommend that clauses such as those inserted in Government contracts should also be introduced into contracts which are not entered into by Government departments, but which involve the expenditure of public money or other consideration granted by a Government department or which require the approval of the department.
It appears to the board that the policy adopted in the case of Government contracts should be followed in the cases of all contracts for the execution of works or the supply of materials which are entered into by local authorities or by or on behalf of any committee wholly or in part appointed by a local authority. Whilst they are aware that many local authorities specify in their contracts conditions to be observed by the contractor as to rates of wages and other matters affecting persons employed by him, the board think that in every case the authority should give the matter careful consideration with the view to the introduction in the contracts of clauses on the lines of those inserted in Government contracts. I am, Sir, your obedient Servant, H. C. MONRO, Secretary.
FAIR WAGES CLAUSES IN GOVERNMENT CONTRACTS. The following clauses recommended by the Fair Wages Advisory Committee for general use in Government contracts, with a view to carrying out the objects of the fair wages resolutions of the House of Commons, have been generally adopted by the contracting departments :—
For Inclusion in all Contracts.
1.- Fair Wages Clause.
The contractor shall in the execution of his contract observe and fulfil the obligations upon contractors specified in the resolution passed by the House of Commons on the 10th March 1909-namely: "The contractor shall pay rates of wages and observe hours of labour not less favourable than those commonly recognised by employers and trade societies (or, in the absence of such recognised wages and hours, those which in practice prevail amongst good employers) in the trade in the district where the work is carried out. Where there are no such wages and hours recognised or prevailing in the district, those recognised or prevailing in the nearest district in which the general industrial circumstances are similar shall be adopted. Further, the conditions of employment generally accepted in the district in the trade concerned shall be taken into account in considering how far the terms of the fair wages clauses are being observed. The contractor shall be prohibited from transferring or assigning, directly or indirectly, to any person or persons whatever, any portion of his contract without the written permission of the department. Sub-letting, other than that which may be customary in the trade concerned, shall be prohibited. The contractor shall be responsible for the observance of the fair wages clauses by the sub-contractor."
2.-Exhibition of Notice at Worke.
The contractor shall cause the preceding condition to be prominently exhibited for the information of his work people on the premises where work is being executed under the contract.
3.-Inspection of Wages Books, &c.
The contractor shall keep proper wages books and time sheets, showing the wages paid and [so far as practicable] the time worked by the work people in his employ in and about the execution of the contract, and such wages books and time sheets shall be produced whenever required for the inspection of any officer authorised by the department. [Specify the department.]
For Inclusion in Contracts in Certain Trades.
Calculation of date of attaining age of seventy or sixty. One of the statutory conditions for the receipt of an old age pension by any person under sect. 2 of the Old Age Pensions Act 1908 is that the person must have attained the age of seventy, and the proviso to sub-sect. (1) (b) and sub-sect. (3) of sect. 3 of that Act deal with cases involving the attainment by a person of the age of sixty years.
Under the law in England and Ireland a person is regarded as having attained a given age on the commencement of the day before his birthday, whereas under the law in Scotland the age is not attained until the actual birthday. Sect. 1 of the new Act renders the law on this subject uniform throughout the whole of the United
Another statutory condition under sect. 2 of the Aot of 1908 for the receipt of an old age pension by any person is that the person must satisfy the pension authorities that, for at least twenty years up to the date of the receipt of any sum on account of a pension, he has been a British subject.
The effect of this condition has been that a number of women who were originally British subjects, but who have ceased to be British eubjects in consequence of having married aliens, have become dis. qualified from receiving a pension, and this disqualification has, in the absence of renaturalisation, continued even though the woman has been left a widow or has been deserted by the husband, or the marriage has been dissolved or annulled.
It is, however, now provided by sect. 3 (1) of the new Act that this condition is not required to be fulfilled in the case of a woman who satisfies the pension authorities that she would, but for her marriage with an alien, have fulfilled the condition, and that, at the date of the receipt of any sum on account of a pension, the alien is dead, or the marriage with the alien has been dissolved or annulled, or that she has, for a period of not less than two years up to the said date, been legally separated from, or deserted by, the alien.
It was under the last quoted enactment of the Act of 1908 a further statutory condition for the receipt of an old age pension that the person must satisfy the pension authorities that, for at least twenty years up to the date of the receipt of any sum on account of a pension, he had had his residence, as defined by regulations under the Act, in the United Kingdom.
This condition is superseded by the condition as to residence prescribed by sect. 3 (2) of the new Act. Under this enactment it is now made a statutory condition for the receipt of an old age pension by any person that the person must satisfy the pension authorities that for at least twelve years in the aggregate out of the twenty years up to the date of the receipt of any eum on account of a pension he has had his residence in the United Kingdom.
But it is provided that, for the purposes of computing the twelve years' residence in the United Kingdom, certain periods shall be counted as periods of residence in the United Kingdom. These periods are:
(1) any periods spent abroad in any service under the Crown, the remuneration for which is paid out of moneys provided by Parliament, or as the wife or servant of a pereon in any such service so remunerated;
(2) any periods spent in the Channel Islands or the Isle of Man by a person born in the United Kingdom;
(3) any periods spent abroad by any person during which that person has maintained or assisted in maintaining any dependant in the United Kingdom;
(4) any periods of absence spent in service on board a vessel registered in the United Kingdom by a person who before his absence on that service was living in the United Kingdom; and (5) any periods of temporary absence not exceeding three months in duration at any one time.
Receipt of Poor Relief as disqualification for Old Age Pension. Under the provisions of sect. 3 (1) of the Act of 1908 a person is still disqualified for receiving or continuing to receive an old age pension, notwithstanding the fulfilment of the statutory conditious, while he is in the receipt of any poor relief other than relief specially excepted under the proviso to that enactment.
In regard to this subject it was pointed out in the circular issued by the board to the local pension committees and sub-committees on the 11th Dec. 1908, to which reference should be made, that the effect of the above enactment in combination with the Poor Law Amendment Act 1834, was to disqualify a person for pension where poor relief was given to or on account of the wife or certain of the relatives of such person. These considerations no longer apply, since it is provided by sect. 4 (1) of the new Act that any rule of law and any enactment, the effect of which is to cause relief given to or in respect of a wife or relative to be treated as relief given to the person liable to maintain the wife or relative, is not to have effect for the purposes of sect. 3 of the principal Act.
The result of this provision is that for the future a person will only be disqualified for pension on the ground of the receipt of poor relief in cases where he or she is the actual recipient of the relief afforded.
Imprisonment as disqualification for Old Age Pension.
The effect of sect. 3 (2) of the Act of 1908 is to disqualify for a pension any person who is convicted of an offence and ordered to be imprisoned without the option of a fine, or to suffer any greater punishment, not only during the detention in prison but for a further period of ten years after the date of release from prison.
Sect. 4 (2) of the new Act reduces the period of disqualification after release from prison to two years, both as respects persons convicted before the passing of the Act and as respects persons convicted
after the passing of the Act, in cases where the term for which the person has been ordered to be imprisoned without the option of a fine does not exceed six weeks.
Liability to detention under the Inebriates Act 1898 as disqualification for Old Age Pension.
Under sect. 3 (3) of the Act of 1908 where a person of sixty years of age or upwards having been convicted by any court is liable to have a detention order made against him under the Inebriates Act 1898, and is not necessarily, by virtue of the provisions of the Act of 1908, disqualified for receiving or continuing to receive an old age pension, the court is empowered, if they think fit, to order that the person so convicted be disqualified for such period, not exceding ten years, as the court direct.
These provisions are supplemented by sect. 4 (3) of the new Act which deals with the case of persons already in receipt of a pension who are convicted of any offence mentioned or deemed to be mentioned or included in sched. 1 to the Inebriates Act 1898, and subjects such persons, if not subject to disqualification under the Old Age Pensions Act 1908, to disqualification for the receipt or the continuance of the receipt of a pension for six months after the date of conviction unless the court direct to the contrary.
A copy of the schedule referred to, so far as it is applicable to England and Wales, is printed as an appendix to this circular.
Calculation of Means.
Sub-sects. (1) and (2) of sect 4 of the Aot of 1908, which relate to the calculation of means for the purposes of the Act, are repealed by the new Act (sect. 9 (1) and schedule), and the new provisions contained in sub-sects. (1) and (2) of sect. 2 of the new Act are substituted for them (seet. 2 (3).
In calculating the means of a person for the purposes of an old age pension it will now be necessary, instead of taking account of the matters mentioned in sect. 4 (1) of the Act of 1908, to take account of the following:
(1) The yearly value of any property belonging to that person (not being property personally used or enjoyed by him) which is invested, or is otherwise put to profitable use by him, or which, though capable of investment or profitable use, is not so invested or put to profitable use by him, the yearly value of that property being taken to be onetwentieth part of the capital value thereof;
(2) the income which that person may reasonably expect to receive during the succeeding year in cash, excluding any sums receivable on account of an old age pension under the Act, and excluding any sums arising from the investment or profitable use of property (not being property personally used or enjoyed by him), that income, in the absence of other means for ascertaining the income, being taken to be the income actually received during the preceding year;
(3) the yearly value of any advantage accruing to that person from the use or enjoyment of any property belonging to him which is personally used or enjoyed by him, except furniture and personal effects in a case where the total value of the furniture and effects does not exceed fifty pounds; and (4) the yearly value of any benefit or privilege enjoyed by that person.
Where, however, under the first of the foregoing paragraphs the yearly value of any property is taken as one-twentieth part of the capital value of that property, no account is to be taken under any other of those paragraphs of any appropriation of that property for the purpose of current expenditure (sect. 2 (1).
The calculation of the means of a person who is one of a married couple living together in the same house is now materially altered. Under the Act of 1908 the means of such a person was not in any case to be taken to be a less amount than half the total means of the couple. The new Act provides that the means of euch a person shal in each case be taken to be half the total means of the couple (sect. 2 (2).
Saving for Existing Pensioners.
In this connection attention may be particularly drawn to sect. 8 of the new Act which provides that the provisions of the Aot modifying the statutory conditions for the receipt of old age pensions are not to operate either so as to disentitle any person who is in receipt of a pension at the time of the commencement of the Act to continue to receive his pension, or so as to reduce the rate of pension to which such a person is entitled.
Limitations with respect to Old Age Pensions
Certain questions have from time to time arisen in the administration of the Act of 1908 in regard to the payment of pensions to pensioners who are absent from the United Kingdom, or to persons who fail to claim payment of their pensions.
These points are met by sect. 5 of the new Act which provides that a sum on account of an old age pension shall not be paid to any person while absent from the United Kingdom or if payment of the sum is not obtained within three months after the date on which it has become payable.
Sect. 6 of the new Act introduces some amendments and alterations in the law with regard to the raising and determination of questions in relation to old age pensions with which for the purposes of the present circular it is not necessary to deal in detail. It may, however, be pointed out that under sub-sect. (6) of this section a pension officer, if dissatisfied with any refusal or neglect of a local pension
ENGLISH AND AMERICAN ADMINISTRATION
By HARVEY F. REMINGTON, of the Rochester (N.Y.) Bar.
So much has been said about the superiority of English criminal procedure of late, so many articles have been written lauding the celerity of procedure in English courts, so many lengthy editorials have been penned along this line, anent the Crippen trial, one might easily come to the conclusion, upon this discussion alone, that criminal trials in the United States were conducted solely in the interests of wealthy offenders; that it was largely the aim of criminal practitioners and prosecuting attorneys to secure delay for offenders of all classes, and that these delays were measured by the culprit's bank account or circle of friends.
It seems to me that in making a comparison between English and American procedure, sight has been lost of the fact that conditions in England are wholly different from those in this country. Great Britain and Ireland contain less equare miles than the State of New Mexico, and less than one half of the area of Texas. The distance from the most remote hamlet in Great Britain to London is about 600 miles, being less than the distance from Boston to Pittsburg. This country was discovered in 1492, and the population of the original thirteen colonies at the time of the Revolution, less than one hundred and forty years ago, was about 3,000,000. What is now Great Britain and Ireland, at the same time had thrice that number of inhabitants; now her population of 40,000,000 is doubled by our own. Her courts had been in existence for centuries prior to that time, and the changes in procedure from that day to this have not been many or varied,