Oldalképek
PDF
ePub

The Legal Observer,

OR,

JOURNAL OF JURISPRUDENCE.

SATURDAY, MAY 3, 1845.

"Quod magis ad nos

Pertinet, et nescire malum est, agitamus."

HORAT.

RAILWAY COMMITTEES.

PUBLIC attention is now very much turned to the committees of the house on

[blocks in formation]

Some of the objections to it are well stated in a recent pamphlet. We think it will not be denied that the establishment

existence.

private bills, and more especially as to of this board took the public somewhat by how far they will be affected by the reports surprise. The inquiry was, under what of the Railway Department of the Board act or by what authority it came into of Trade. We are induced to think that this new department will turn out a "At the end of the last session, when most failure. It will verify, if we mistake not, of the members had left London, and those the old proverb of the shortest way being who remained were wearied by sittings, which sometimes the longest way about. It is lasted from midday to midnight, and were peran attempt to arrive at a correct conclu- business which threatened them for the next haps frightened at the prospect of the private sion by a short cut, and, dispensing both session, Mr. Gladstone obtained a standing with lawyers and parliamentary commit-order of the House, requiring that all those tees, to come to a decision without the documents relating to railway bills, which paraid of either. The experiment is a bold liament requires for its information, should be one, and we shall see if the result justifies it. At present this new department of government appears to us to be on the horns of a dilemma: either it is efficient. and useful or inefficient and useless. If inefficient and useless, no one will support its continuance; if efficient and useful, then other questions arise: is it constitutional? is it governed by proper rules? is it not open to grave difficulties, and thus to great objection? As a mere collector of information on the subject of projected "4. Extension lines and branches, apparently railways, we suppose that no one could projected in order to throw difficulties in the object to its institution; but as a deciding way of new and legitimate enterprises.

body, as a department of government which was to speak with authority on matters so important to the community;

deposited with the Board of Trade; and on the
19th of July he procured authority to create
have filled all men with surprise.
that subsidiary board, whose reckless doings

"The functions of the board were suggested by the fifth report from the select committee on railways, and they are confined to the following heads:

"1. Questions of public safety.

"2. Departures from usual railway legislation.

"3. Provisions of magnitude novel in their principle.

"5 & 6. New schemes which do not afford

Railways and the Board of Trade. Second

if it is to be thus considered, then it edition.

1845.

B

[blocks in formation]

the best mode of communication between the required in surveying a country, to have termini. affected to bring his knowledge as an engineer "7. Proposed arrangements with subsisting to bear in any but the most superficial and companies which may appear as, objectors to new lines.

"And then the report goes on to state, that the reports of this department 'should on no account be regarded in any other light than as intended to afford to parliament, firstly, additional aid in the elucidation of facts, by the testimony of witnesses competent by knowledge, habit and opportunity, and officially responsible; and secondly, recommendations founded upon such elucidation.'

[ocr errors]

perfunctory manner upon the innumerable
questions which have been presented to the
board, and (incredible as it may seem) decided
by them, since the 30th of November last.
Besides, he is an Inspector of Railways; an
office which, as it produces a salary, is, I hope,
also not unproductive of work.
Of railways,
considered as a great national system, General
Pasley, I know, does not pretend to judge-he
is an engineer, and that is all.

"Mr. Porter is the third member of this body; and a very worthy, industrious man he Now this all points to reporting such is. He was a wine-merchant, and in the year information as could be collected, and 1832, or thereabouts, Lord Auckland, who was nothing more. But as the recommenda- then president of the Board of Trade, promoted tions have been carried into practice, a him to a clerkship in that department, upon great deal more has been done. This the credit of certain very useful statistical board, instead of being a mere collecting tables and papers, which he was in the habit of and reporting body, has set up as a deciding of superintendent of the statistical department preparing for an annual publication. His office body. It has called the Gazette and all of the Board of Trade, Mr. Porter still holds, the imposing character of government with much credit to himself. It ought to be a machinery to its assistance, and has not laborious office, and, as I know Mr. Porter to contented itself with reporting to parlia- be a conscientious person, I believe, that, in ment in the shape of a blue book, but has fact, he devotes most of his life to it. He is issued, prematurely, a summary of its also an inspector of railways. Thus he has no intentions to the public; and certainly, if look narrowly into the projects on which he time to look, and most assuredly he does not it had been intended to influence the reports; nor, if he did look into them, would Stock Exchange, no mode of proceeding his opinion be of any weight. Few men know could have been more happily devised for the purpose.

better than he does the aggregate length of all railways; their cost, perhaps the average cost of each per mile; the number of casualties which have occurred in a given space of time; and, very possibly, he has calculated and has a table to show how many of any hundred men would survive for one month, a journey of fifty miles in winter in a second or third-class carriage on the Great Western Railway. But beyond this table-work, Mr. Porter, even if he had time, would be a very incompetent guide

Some little curiosity will be felt, we think, to know who the members of this secret board are. The writer before us gives us some information on this head ::"First in place, and perhaps in capacity, is Lord Dalhousie, a man of business and of considerable acuteness; and if the board had been composed only of such as him, probably small mischief would have been done. He in railway matters. knows little, if anything, of the construction "Mr. or Captain O'Brien follows in the of railways; has, I should think, but very in- order of signature, and plays a very prominent distinct notions of the meaning of a datum part in the board; indeed, between him and line, and would be infinitely puzzled to demon- Mr. Laing, the whole business of the office is strate an error on a section. But if Lord Dal- notoriously borne. Captain O'Brien was sehousie had all the qualifications which I have cretary to Sir James Graham, and is a brother predicated as essential to a good member of of a gentleman, who has quite recently been this board, they would have availed us nothing, promoted from the office of superintendent to for his lordship filled the laborious, or what that of secretary of the South-Eastern Railway. ought to be the laborious office of Vice-Presi- He was himself secretary to the Great North dent of the Board of Trade during the greater of England Railway, an office which he left for part of the investigations of the railway department, and has held the more burthensome office of President of that Board ever since. He cannot possibly have had time to inquire into these projects; he must have formed his opinions upon the statements of his colleagues.

his clerkship in the Board of Trade. He is evidently a man of energy and ability, but the circumstances I have mentioned, foreboded that his decisions would unavoidably be regarded with great mistrust, and the event has verified those forebodings.

"Last in order, but far the first in influence, "Of General Pasley I would desire to speak comes Mr. Laing, the chief instrument in Mr. with all respect, out of gratitude to him for the Gladstone's hands, if, indeed, he was not that great services which, in the zenith of his bodily minister's prompter, of the whole system which and mental powers, he rendered to the country. is now rousing the indignation of all those who He knows too well the caution and deliberation have watched its workings. Mr. Laing was

Imprisonment for Debt under £20.—The Property Lawyer.

IMPRISONMENT FOR DEBT

UNDER £20.

THE act abolishing imprisonment for

either a barrister or an attorney, and of so little success in his profession, whichever it was, that a short time since he became a clerk in the Board of Trade, at a salary of about 3000. or 400. a-year. He is laborious, easy of access, and (with the exception of an excessive, and, to a debts under 207. has been referred to a plain man, somewhat alarming astuteness, and an unceasing watchfulness for the aggrandizement select committee of the House of Lords, of the office which he has, by almost imper- who are to inquire into its operation. ceptible degrees, created for himself) he is, Surely the fate of this measure is a lesson I have no doubt, a very virtuous and respect- for legislators. Here we have a bill, which able person; but to say that Mr. Laing is in was passed in the last session of parliaany one single respect qualified to judge what railways ought to be constructed in this king-faction throughout the country. ment, provoking almost universal dissatisSurely dom; nay, to assert that he has any talents, natural or acquired, which should induce his we are giving way to no captious spirit most intimate friend to consult him, excepting | when we say that this is not the mode in out of courtesy, as to the direction of a garden which legislation should proceed. We path, would be to sacrifice truth most need- should have been glad if the select comlessly to compliment. And yet Mr. Laing mittee had met and had reported before deals with the subjects brought before him as the act had passed. But this is not the though he were conscious of faculties fit to bear

the weight of mightiest monarchies; and, as only act of the last session which is in the We referred to the though the noble projects which have occupied condemned list.

the anxious study of engineers-that class of Transfer of Property Act in our last men whose genius is the main prop of this number. We must now again ask, where country under pecuniary burthens, which but is the promised amendment act? We. for them would well nigh crush it-projects would willingly hope that the fate of these which have attracted the wealth of the capital- two acts will induce parliament to sanction ist, which agitate populous towns, rouse from some revision of public acts. Statutes are their apathy rural districts, and induce great land-owners to allow their paternal acres to be now passed for the regulation of almost invaded, were things by his capacious mind everything; and it would be well if they immediately conceived and intuitively to be were themselves the subject of some judged of. Upon two recent occasions, he regulation. thought it befitted him to receive, singlehanded, at his levee, deputations from a dozen towns in England, headed by members of parliament and borough magistrates. There was a time when county members and the representatives and mayors of ancient towns expected that they should be listened to by a minister of the crown, if deputed to explain the THERE is a very usual clause introduced wants of their constituents; but the railway into wills devising trust estates. It is department has altered all that. Not even the proper that the opinion of the Vice ChanVice-President of the Board of Trade was there; and it seems that these deputations, cellor of England as to this clause should conscious, no doubt, of the power of mischief be known.

THE PROPERTY LAWYER.

DEVISE OF TRUST ESTATE.

66

which Mr. Laing can wield, condescended, "I must enter my protest," said his without a murmur, to present their memorials, Honour, in a recent case, against the and utter their petitions to a clerk in a govern- proposition that it is a beneficial thing for ment office. Verily, I greatly mistake my a trustee to devise an estate which is countrymen if this system lasts. vested in him in that character. My " There is also a Captain Coddington, who, like his colleagues, has favoured the world with opinion is, that it is not beneficial to the an announcement of his intentions, favourable testator's estate that he should be allowed or adverse towards certain railway schemes to dispose of it to whomsoever he may which he has had under consideration. Of think proper; nor is it lawful for him to this gentleman I shall say nothing; because I make any disposition of it. He ought to (in common, I believe, with all the rest of permit it to descend, for in so doing he mankind) know of him nothing, excepting that he appears in the Red Book as an assistant to General Pasley."

acts in accordance with the devise made to him. If he devises the estate, I am inclined to think that the court, if it were We think we have now said enough to urged so to do, would order the costs of make our readers pause before they adopt, getting the legal estate out of the devisee without further consideration, the reports to be borne by the assets of the trustee. of this new department of government. I see no substantial distinction between a

B 2

Notes on Equity.

conveyance by act inter vivos and a devise; number of Mr. Beavan's Reports, (Attorney

for the latter is nothing but a post mortem conveyance; and if the one is unlawful, the other must be unlawful." Cooke v. Crawford, 13 Sim. 97.

NOTES ON EQUITY.

CHARITY.-DOCTRINE OF SURPLUS.

General v. Grocers' Company of London, 6 that Sir William Laxton, Alderman of London, Beav. 526). The facts appeared to have been, by a codicil to his will dated 22nd July, 1556, reciting that he was minded to found a free grammar school at Oundle, in Northamptonshire, to be kept in the Guild or Fraternity House there, and that his intent was that the schoolmaster should have for his stipend yearly 187., and the usher yearly 6l. 13s. 4d., and that seven poor men should each of them have 8d. IN the celebrated Thetford School case, 8 weekly towards their maintenance, and also Rep. 130 b. 131 b., it was laid down, that free house-room in the said Guild or Fraternity where lands were devised for charitable pur- House; and moreover, that "he had set out poses, with a specified distribution of objects unto the Grocers' Company certain of his lands which entirely exhausted the income at the and tenements within the city of London, as time, and where the value of those lands was well for the payments of the stipends aforesaid subsequently much increased, the augmented as also for the reparation of the said Guild or income should be employed in furthering and Fraternity House;" and that he, minding the extending the charity; for as the donor, by accomplishment of the premises, did by his his distribution of the profits, though not by said codicil devise unto the said company, and any general or specific declaration, showed that to their successors for ever, certain messuages, he meant the whole to be devoted to works of charity, and that nothing should be converted to private uses, it followed that, as in the event of a decrease the charity would suffer, so in the event of an improvement, pari ratione, it ought to benefit. This reasonable determination, as reported by Lord Coke, has been followed by all subsequent authorities.

If, therefore, the donor, without making any general declaration of an intention to devote the whole property to charity, should nevertheless give to charitable purposes each and every portion of the income at the time, and by that means exhaust the whole; then, if that income should afterwards increase, the augmentation will also be applicable to charitable pur

poses.

&c. in his codicil specified, to hold the same upon this condition and intent, that they should apply to the Crown to obtain the said Guild or Fraternity House, in order to be appropriated to the uses prescribed by his benefaction. He further willed that the company should from time to time provide a schoolmaster and usher, to whom they should yearly pay the respective sums of 187. and 67. 13s. 4d., 66 out of the rents," &c. of the premises; and in the same way, with the advice of the vicar of Oundle, should appoint seven bedesmen, who were to be accommodated in the said Fraternity House, and to have yearly out of the "issues and revenues" of the premises "34s., which amounted weekly at the rate of 8d. a piece." He also directed the company to pay the vicar yearly 24s. to employed in the reparation and maintenance of the said free school.

Another rule of determination, more recent in point of date, is this,-that where the general character and purpose of a gift is expressly The company accepted the property, and took declared to be charitable, and the particular possession in the year 1573, when the rental payments directed to be made do not exhaust amounted to about 50%. per annum. The sums the whole fund, any surplus remaining over, specified in the codicil amounted to 38%, which after satisfying those payments, will belong to was duly paid by the company. The surplus the charity, unless there are circumstances was retained by them. In 1578 the company from which a contrary intention can be col- increased the salaries of the master and usher lected. Accordingly, we have the authority of by "benevolences" of 61. 3s. 4d. and 31. 6s. 8d. Lord Langdale, in a late case, for holding that At the great Fire of London, in 1666, the proif a donor clearly declares an intention of de-perty in question, together with other property voting the whole income of a property to chari- of the company, was destroyed, and they got table purposes, then, although he does not, in into consequent embarrassments. Thereafter, specifically directing the application of portions by a decree of Commissioners of Charitable of it, exhaust the whole income, still the general Uses, reciting that the company had augmented intention that the whole shall be applied to the payments to 1027. 16s.; that they had, charitable purposes, will prevail.c

however, fallen into arrear with the charity; but that they were willing in future to pay 827. 16s., for which they agreed that their estate should be charged;-it was ordered that all the real estate of the company should be so Com-charged accordingly, and should be conveyed to trustees for that purpose; and in consideration of the impoverished state of the company, twenty years were given them for the payment c ́Attorney-General v. Coopers' Company, 3 of the arrears. The rental of the Laxton

Keeping these principles in view, let us direct attention to a decision to be found in the last

• The Attorney-General v. Coopers' pany, 3 Beav. 34.

b

Attorney-General v. Skinners' Company,

5 Sim. 614.

Bear. 33.

estates at this period appeared to be 1671.,

New Bills in Parliament.

NEW BILLS IN PARLIAMENT.

OATHS DISPENSATION.

5

THIS is a bill to authorize commissioners of bankrupt to examine certain persons, and receive their statements, though not upon oath, under certain circumstances.

while the payments directed to be made were sums prescribed for the purposes of the only 821. 16s. The property in course of time charity. came back to the company; and the gross rental at the date of filing the information, had increased to 1,500l. a year, while there was also a sum of 8,6451. consols derived by the company from the sale of part of the charity estate under the London Bridge Act. Of this augmented income the company applied 300l. a year to the purposes of the charity, and retained the remainder. The object of the suit was to obtain a declaration that the whole income of the property was applicable to the purposes of It recites, that by an act passed in the 6 G. the charity, and to have a more extended 4, c. 16, ss. 36, 37, intituled "An act to amend system of education introduced, in pursuance the Laws relating to Bankrupts," it is amongst of Sir Eardley Wilmot's Act, the 3 & 4 Vict. other things enacted, that it shall be lawful for c. 77. The case having been very fully commissioners of bankrupt to examine the argued, Lord Langdale gave judgment, ob- bankrupt upon oath, either by word of mouth serving that the sums directed by the testator or upon interrogatories in writing, touching all to be paid were certain and definite sums. matters relating either to his trade, dealings, or Now the question was, did the charitable trust estate, or which may tend to disclose any such attach to the whole property? He did not grant, conveyance, or concealment of his lands, find anything in the codicil to justify that con- tenements, goods, monies, or debts, and to reclusion. The testator said "he had set out duce his answers into writing, which examinacertain of his lands to the company." Why tion so reduced into writing the said bankrupt had he done so ? For the payment of the sti- shall sign and subscribe; and if such bankrupt pends to the master and usher, and of the shall refuse to be sworn, or shall refuse to anparticular sums to the seven poor men, as well swer any questions put to him by the said as for the repair and maintenance of the pre- commissioners touching any of the matters mises. If it had been suggested to the testa- aforesaid, or shall not fully answer to the satistor that the revenues might greatly increase in faction of the said commissioners any such progress of time, and that the fixed salaries questions, or shall refuse to sign or subscribe and payments might become insufficient for his examination so reduced into writing as the purpose he contemplated, it is possible he aforesaid, (not having any lawful objection might have made provision for the case. But allowed by the said commissioners,) it shall be he had not done so; and the court could only lawful for the said commissioners by warrant look at the words of the will, which certainly under their hands and seals to commit him to did not express any general devotion of the such prison as they may think fit, there to rewhole property to the purposes of the charity. main until he shall submit himself to such Before the Commissioners of Charitable Uses commissioners to be sworn: And that it the company having professed themselves may happen that persons against whom a fiat willing to pay a larger sum than that which by in bankruptcy may be awarded may be perfectly the codicil they were bound to pay, and indul- willing to make a full disclosure of all their gence having thereupon been given to them to affairs, and give true answer to all questions make good the arrears into which they had touching the same, but may refuse to take an fallen, the court would hold them bound to pay oath, from conscientiously believing oaths to be these increased sums. But as to the further unlawful, and yet may not fall within any deaugmentation of the allowances made subse- scription of persons whose affirmation is now quently by the company, it was not to be by law permitted to be received in lieu of an regarded as evidence that they thought them- oath, and the commissioners may nevertheless selves under an obligation to do it. There hold themselves bound, not only to refuse such might indeed have been a moral obligation on disclosure without oath, but also to commit them, but there was not a legal one. And such person to prison by reason of such refusal, with respect to the Grammar School Act, the whereby important facts may remain unknown, court was of opinion that it did not apply to the prejudice of the creditors, and the party where, as here, the object was to obtain a may be imprisoned for an indefinite time, further fund for purposes of general education, possibly for his whole life, without any moral by an attempt to encroach on the rights of delinquency; it is therefore proposed to enindividuals. The information, therefore, was dismissed with costs. So that the company may appropriate to their own uses the entire revennes, subject to the payment of the appointed

This useful act has for its object to enable courts of equity to enlarge the scope of grammar schools so as to embrace commercial and elemental education.

act,

That in case any person who now is or may hereafter duly be declared a bankrupt, or the wife of any such bankrupt, shall, when attending such commissioners at their meeting, state that he or she cannot conscientiously take an

oath, but is willing to make solemn affirmation to the truth of his or her answers to any questions that shall be put to him or her by such commissioners, and to sign and subscribe his or

« ElőzőTovább »