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Act of 1862? If it were necessary to search for words, we think the 159th and 160th sections would be sufficient: for the one gives power to the official liquidator to compromise with persons claiming to be creditors, or alleging themselves to have any claim, present or future, certain or contingent, ascertained or sounding only in damages, against the company, and the other confers a similar power to compromise all debts, and liabilities capable of resulting in debts, supposed to exist between the company and every person apprehending liability to the company, and to discharge all such debts, whatever their nature. Now, all Lord Cairns can find in the Act to prohibit the exercise of his equitable power as arbitrator is, 1st, the 98th section, which directs the assets to be collected and applied in discharge of the liabilities; and 2d, the 153d section, which voids all dispositions and transfers and alterations in the status of members after the commencement of the winding-up. The joint operation of these two sections, he says, is to fix a trust upon all assets, viz., that, being collected, they shall be applied in discharge of liabilities. The latter section seems to relate to questions with shareholders; but even construed as Lord Cairns has construed it, it seems to leave matters as they were, for, if there is compensation, the asset can be nothing more than the excess of the company debt over the debtor's claim: or the set-off might be viewed as the discharge of a liability by applying the assets so as to save the right of a preferential creditor. But the arbitrator considers that this result is inequitable. "There being no debt actually due and payable at the time of the winding-up, it would appear contrary to what one would expect to be the provision, that from the accident of a debtor to the company having a claim against the company to mature after the winding-up, that debtor should be in a better position than any other debtor to the company, and should have through the medium of his debt a security for his claim against the company maturing after the winding-up." It is not obvious from this whether the iniquity consists in a debtor being able out of his own debt to pay himself in full what his creditor owes him, or in a debtor trying to do this with what his creditor owes him, but is not bound to pay for three months. For it will be observed that the "immature claim" includes not only claims for valuation on current policies, but sums due on policies by death which do not in terms of the contract become payable till after the commencement of the winding-up, though the claim was admitted before. Nay, his Lordship's equity would cover the case of an acceptance falling due the day after the winding-up: it was not a debt in the sense of being actually payable. But, unless it were acquired in mala fide at a nominal value, that bill would be surely within the case of Anderson.
Besides, it is rather late to discuss the policy of the Bankrupt Laws. There is nothing inconsistent between an equitable division of assets and the debtor's right of retention. It is also to be con
sidered that by the arbitrator's proceedings, the debtor is prevented from raising an action to constitute and liquidate his claim. Now, if the company, being solvent, had refused to renew the debtor's policy, his right of action arises; and had he sued them for breach of contract, they might have set off his debt. Insolvency has hitherto been supposed to extend the right of compensation.
If any doubt arose on the Companies Act, 1862, it would have been most proper to follow the analogies of bankruptcy. For upon what grounds does the general Act of 1862 authorize the windingup of a company? The only consideration mentioned in the 199th section, and applicable to the case of the Albert, is "whenever it is proved to the satisfaction of the Court that the Company is unable to pay its debts." Now this was a deficiency estimated as actually existing, not merely a prospective insolvency on the assumption that the business would be carried on.
We shall now briefly illustrate the consequences which have followed from the arbitrator refusing to extend the principle of retention to the case of a claim upon a policy current at the date of winding-up, or a policy on which the ordinary claim for the sum assured has been admitted or adjusted less than three months before the winding-up.
(1.) Bourne's Case-Bourne had a loan from the Medical Assurance Company on the security of his policy. There was no novation by Bourne when the Medical and the Albert amalgamated; and he claimed to set off the value of his policy against the repayment of the loan. He also pled that the mortgagees were not entitled to payment on delivering back the policy, for by their actings the policy had greatly deteriorated in value. Bourne might have declined further payment of premiums, which would have destroyed the security. Lord Cairns held that the transferor company was in no way responsible for the solvency of the transferee, and that on denuding of the policy the creditor was entitled to repayment of the loan.
(2.) Simla Bank Case.-Here the Bank held a deposit consisting of a percentage on the Indian premiums of the Albert, and also the balance on a floating account with the Albert. Lord Cairns refused to recognise this deposit as a mortgage for payment of the policies, for that arrangement would make an agency a separate insurance business; therefore the question of set-off arose with regard to policies where the person assured was dead and the claim admitted, but in terms of the usual condition in the policy the money was not payable for a certain period after the proof of death had been satisfied. It had previously been held by the Court of Chancery that no preference on the assets could be given to policies in this position, although the loss was incurred before the winding-up. But Lord Cairns held this admitted debt of certain amount must not enter into compensation because the term of payment was postponed.
(3.) Parlby's Case.-Parlby borrowed a small sum on his policy, and bound himself to pay interest along with premiums, the policy to become void if Parlby assigned it, or if the interest was not paid. It was also agreed that the Company might retain the amount of the loan out of the sum in the policy. Lord Cairns held that this was an ordinary loan, and not an advance of the surrender value of the policy payable on the policy-holder's death. But he would not allow Parlby's claim to be set off, for his right was "not a liquidated sum due from the Company as a matter of right at the time of winding up, not damages due from the Company, unliquidated in the first instance, and to be liquidated by an action, but his right against the Company is to apply to the Court to put a just estimate as at the date of the winding up, as far as is possible, upon that claim, which has not matured, but which at some future time he may have against the Company." It is a singular mode of reasoning for an arbitrator to adopt. "This rule of justice is in the Bankruptcy Statutes: it is not in the Companies Act, 1862: it is unknown to common law: therefore I can't apply it." We have endeavoured to show that here the analogy of bankruptcy should be followed: that the Common Law does recognise compensation of a claim liquidated by consent; and that if it does so, the Act of 1862 does not exclude it.
(4.) Delhi Bank Case.-Here the Bank owed the Albert a balance on account, and had right to two policies. One life died before, the other after, the winding-up: but the periods of three months expired in both cases before any demand was made by the liquidators. It was argued that the point of time to be considered with reference to set-off was not the date of the winding-up, but of the enforcement or adjustment of the claim. Lord Cairns held that such set-off was not provided for by the Act of 1862, and that the Act, by giving him a power (section 100) to order the Bank to pay without being sued, took away any plea of compensation that might exist at Common Law. There is, according to the arbitrator, no set-off, except under special statutes, if you cannot plead a debt that had arisen before the time of action brought.
It is hardly necessary to add, that what we have said above relates to a proprietary, and not to a mutual, assurance company.
W. C. S.
THE PRESENT CONDITION OF THE ADVOCATES' LIBRARY WE make no apology for laying before our readers these remarks on the present condition of the Advocates' Library. It has long occupied as nearly as possible the position of a National Library for Scotland; and both the character of the collection and the liberality with which access to it has at all times been granted to students, give it very considerable claims to the attention of the
public. There is no library in Scotland which contains so valuable and extensive a collection of books and manuscripts; and there is none which affords greater facilities for consultation. The Faculty have all along taken the creditable course of rendering it as freely accessible as possible to students of every class, so as to supply as much as possible the want of a public library of consultation; and it ought therefore to be a matter of general concern to every one who is interested in literary work, if it should fail to keep up with the wants of the present day. Dr. William Chambers in a letter to the Edinburgh Town Council in 1868, stated that if the Advocates' Library should be closed for public investigation, his firm would probably have to remove to London. The statement may have been extreme, but it illustrates pretty fairly the extent and value of the assistance which has been rendered by the Library to the literary public of Scotland. We need scarcely remind those members of the legal profession who take any interest in the theory and history as well as in the practice of the law, that to them the matter is peculiarly interesting, as there is no other collection in Scotland which contains anything like sufficient material for the student of historical or theoretical jurisprudence.
Such being the position of the Library, it is a matter of interest not merely to its proprietors but to the public, to inquire how far it is keeping up with the wants of the present time. And if it should be found to be in any way seriously defective, it is important to the public, as well as to the Faculty, that its necessary wants should be supplied.
It is well known that for many years intermittent discussions have taken place as to the possibility of instituting a public library for Scotland, by taking advantage of the great stores of valuable books possessed by various semi-public bodies in Edinburgh, and making them available for public use, after the fashion of the British Museum. But these schemes have never hitherto assumed any practical shape, partly from the natural difficulty of making arrangements with the existing proprietors, and partly, we may surmise, from the fact that any such institution, to be successful, or even creditable, would require a considerable money grant, which for such purposes cannot easily be procured for Scotland. It would seem therefore more prudent and practicable to do what can be done to improve the existing arrangements, and let greater schemes sleep until some more favourable conjuncture. But we would remind all those who feel exclusively interested in the institution of a great Scotch public library, that the Advocates' Library alone can furnish the basis of such an institution. No other collection could supply for Scotland the material that is contained in it, and therefore, even apart from all consideration of the existing public use of the Library, it may be worth their while to assist in putting it into a better condition.
It ought to be carefully kept in view in all discussions on
this subject, that a public library, as the word is loosely used, may mean two distinct things. It may be a library for the use of ordinary readers, or it may be a library of research. Its frequenters may go there either simply to amuse or enlighten themselves, or with a more or less mistaken purpose of amusing or enlightening the world at large. A library for the former purpose may be collected at any time, and with no particular difficulty; to collect a library of research is a work of immense time and trouble. The former is a matter which only concerns the inhabitants of the immediate neighbourhood, and ought to be paid for out of local means. A national library of research, on the other hand, is established in the interest of the whole students of the country, and ought to be supported from a central fund.
Now, if the Advocates' Library be properly managed and freely supplied with books, we see no reason why it should not for long continue to discharge the function of a national library of research. We have never heard the management of the Faculty impeached, and we believe that the students who resort to it are well satisfied with the facilities afforded them; but the supply of books stands in a very different position. The case stands thus:-The oldest and most valuable portion of the Library consists of books bequeathed by members of the Faculty, or purchased out of the Faculty funds. For a long period the purchases of books were very extensive and constant. Large collections were purchased at once. In one instance, for example, £3000 was paid for a valuable collection of Spanish literature. Every ascertained want was liberally supplied, more especially when it touched, however remotely, upon Scottish History and Antiquities, or upon any branch of learning which connected itself with the history or theory of law.
The result has been that the collection became rich in the history and literature of nearly every European nation, and pre-eminently rich in everything that related to the history and literature of our own country. Had it been possible to continue the purchases of books upon the same scale as towards the beginning of this century, it is probable that no assistance would have been necessary to keep the Library up to its reputation at its very best time. But unfortunately a very great change has taken place in this respect. On the one hand, the number of persons entering the Faculty, from whose entrance-fees alone the Library is supported, has become less than formerly; and, on the other hand, the expense of managing the Library has increased with its growing bulk. The result has been that, speaking generally, scarcely any books have been acquired by purchase during the last thirty years, and the sole additions made during that period have consisted of books published in England, and obtained from the publishers under the Copyright Act. It is almost needless to comment on such a statement. It means that the process of supplying the omissions of the past has been wholly suspended; that numerous privately printed books, often of