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public prosecutor is concerned-there can be no doubt that it is very distinctnot to examine him. But I apprehend that there is no regular practice as regards private prosecutors. In my own experience, I have seen it done several times, and without objection; and if it were not to be done there would be grave inconvenience. It might so happen that the person who had the right to be the private prosecutor was the only witness in the case, and it would thus happen that if he were excluded it would be excluding the only man who had information upon the subject. It is further said that the evidence has been excluded by decisions-by one in the Court of Session, and another said to have been pronounced here. The Court of Session decision applied to the case of a public prosecutor, and to the case of a public prosecutor who had no information to give upon the matter from his own knowledge, but who was simply in the case qua public prosecutor. It does not appear that the principle applicable to that case is applicable to the present case, because a public prosecutor stands in a very different position from a private complainer. The objection to examining a procurator-fiscal is very much like the objection to examining an ordinary law agent in a case. It is competent to examine a law agent, but he cannot be examined on anything confidentially communicated to him. It seems to me that all information got by a procurator-fiscal, as fiscal, is covered by that plea of confidentiality, and seeing that he could give no evidence, it would be useless to put him into the witness-box; besides, it was contrary to public interest to allow such an official to be examined. For these reasons, I do not think that the rule laid down by the Court of Session as to public prosecutors can apply to private. With regard to the decision in this Court, if there had been any record of it, I would have been bound to treat it with very great respect. But there is no record of it, and therefore the presumption is that it was rather an expression of opinion on the matter than a decision. I must hold, therefore, that there is no ground either in practice or in the authorities of this or any higher Court to take away anything from the plain meaning of the statute that has been founded on by the complainer here. It has been said that it would be unfair to the defender to allow the pursuer to be examined, and not to examine him; and also that the pursuer had an obvious interest in the matter. With regard to such interest, it can always be kept in view in weighing his evidence; and with regard to the supposed unfairness, we must recollect that the principle of excluding the evidence of the defender is that it is an act of kindness and mercy to the defender to exclude him. I have no doubt that if criminal laws were made by the parties immediately concerned in them, the law would be different, as most defenders would be of another opinion, and would prefer to be examinable. But the theory and practice of the law on this point still is that the defender's mouth is shut, because it would not be fair to allow him to be examined and then to ask him questions to criminate himself. I feel myself bound to repel the objection, and to allow the complainer to be examined.
Act.-A. D. Morice.- -Alt.-O. Prosser.
SHERIFF COURT OF PERTHSHIRE.
Sheriff BARCLAY, LL.D.
Sequestration Power of Sheriff to convene Meetings.-A bankrupt, with the necessary concurrence, obtained sequestration from the Sheriff. At the meeting for election of trustee, the bankrupt produced no state of affairs, and whereon the creditors present declined to elect a trustee and commissioners. The bankrupt thereon applied by petition to the Sheriff to appoint another meeting. This petition the Sheriff refused with the following
"Note.—Where, as here, there has been an unproductive meeting, resulting in no election of trustee, there is no provision in the Sequestration Statute for so unusual and unlikely event. The sequestration does not thereby fall, and
as the Sheriff has the power originally to grant sequestration, it may be inferred he has equal power to keep the machine in motion by ordering a second meeting. But the question is, can he competently do so on the sole application of the bankrupt? The sequestration process is primarily for the benefit of the creditors, so that the bankrupt estate may be quickly, cheaply, and fairly distributed amongst them. The privileges obtained by and for the bankrupt are all secondary, and are dependent on the will and vote of the creditors. He cannot obtain sequestration without the concurrence of one or more creditors to a certain specified amount. The sequestration in this case was thus obtained. At the meeting of creditors there were represented four creditors of no great amount, the concurring creditor was not represented. The bankrupt did not send to the meeting the state of affairs in terms of section 81 of the Statute. The creditors represented at the meeting made no election of a trustee. There is no obligation on them to do so, but if any creditor had moved the election such motion could only be met by the nomination of a rival candidate. A motion not to elect would have been incompetent. A petition for recal, presented to the Supreme Court, would have been the only legal stoppage of the procedure. A petition is now presented by the bankrupt in his own name, without any concurring creditor, praying for the appointment of another meeting. No excuse is made for his failure to give a state of his affairs, or for the non-appearance of the original concurring creditor. Were the prayer granted, there is no security but that the same miscarriage may again occur, and the creditors once more put to unnecessary trouble. H. B."
On a second petition, with the concurrence of the former creditor and some others, the Sheriff appointed a second meeting for election of a trustee. Two candidates were proposed, and a vote taken. One of them, with an apparent majority, named his cautioner, who was approved of; the other omitted that step of procedure. Both candidates lodged notes of objections to the votes. The meeting unanimously elected commissioners, and granted personal protection to the bankrupt for six months. On a scrutiny, the candidate who apparently was in the minority was found to have the majority but in respect of his failure to name his cautioner the Sheriff declined to find him duly elected. Portions of the Sheriff's interlocutor and notes are subjoined:
"First. Finds it incompetent in this form to raise the question of the incompetency of the Sheriff calling the second meeting, or the mode which the same was called and held, reserving all competent remedy as accords.
"Second. In respect that the claimant, Janet Robertson, is a conjunct and confident person with the bankrupt, and that there is no legal evidence produced to support her affidavit and claim thereon to vote, sustains the objection to her vote, reserving her right afterwards to support her claim by further evidence, in order to her being afterwards ranked as a creditor, if so advised." (Other votes on both sides are then dealt with, and sustained or rejected.) "On the application of these findings, Finds George Carphin has a majority of votes in value, but in respect that he did not name his cautioner, and obtain the same approved of, he cannot be declared duly elected; Therefore finds that no valid election has taken place at said second meeting, Reserving to parties all further procedure and remedy competent: Finds no expenses due to either party, and decerns. HUGH BARCLAY."
"Note.-It was not without hesitation that the Sheriff authorised a second meeting to be called. It did appear, as it still does, to him that having power to award sequestration, and to convene a first meeting of creditors, there was an implied power to convene a second meeting where the first proved abortive. The first advertisement in sequestration is required to be published in the London Gazette (a very expensive and often unnecessary procedure), so that English creditors (of whom there are none here) may have notice of the fact of sequestration, but all subsequent notices under the sequestration are limited to
the Edinburgh Gazette, of which by the first advertisement the English creditors (if any) are apprised.
"The claimant, Janet Robertson, is a sister or sister-in-law of the bankrupt, and her only voucher of debt bears date the day before she emits her affidavit, obviously with the view of obtaining the sequestration. The sequestration on the face of the bankrupt's state of affairs has been obviously obtained for the bankrupt's sole benefit, as in point of fact there is no estate to administer or divide. Bankrupt and bankruptcy there may be, but bankrupt estate there is none. The sequestration can only be for the benefit of the bankrupt, and the process of cessio seems the appropriate measure. It would indeed be a wise provision to allow no sequestration unless it is shewn that there are at least £100 of assets to distribute. The I. O. U. granted under the circumstances would even with a stranger be liable to much suspicion, but such in the case of a relation is increased to an extent which can scarcely be overcome. The claimant desires to strengthen her voucher by a state annexed to her affidavit, and a gratuitous extract given from bank books by the teller of the branch of the Bank of Scotland at Pitlochry. But, in the first place, such excerpt is not legal evidence; and in the next place, it is open to great suspicion. It merely shews, but does not prove, that a sum was deposited in name of the claimant on the 9th Jannary 1871, and a portion thereof was put to the bankrupt's credit two days thereafter, and that without any voucher obtained at the time. The suspicion clearly is, in the absence of such voucher, that the money from the first belonged to the bankrupt, or may have been paid him in liquidation of a debt, or given him as a donation. No doubt, in cases of pecuniary difficulty, it is near relations whose aid is sought, but in that case undoubted legal evidence should be got at the time of the advance of money to constitute the debt. The objection to the election of Mr. Carphin is insuperable, and it is extraordinary how in a matter so trivial such a blunder should have been committed in the face of the example set by his competitor for the empty office. The solicitor for Mr. Lindsay argued that the Sheriff, because of the omission which disqualified Mr. Carphin from taking office, was necessarily obliged to declare his opponent duly elected, whatever was the result of the scrutiny of votes. The Sheriff cannot adopt this extreme view. The protest on each side taken at the meeting, and the notes of objections thereafter duly lodged, fairly brought up and compelled a scrutiny. If the argument was good, then, although Mr. Lindsay had not a single good vote, yet because of the lapse of his opponent, he would fall to be duly elected without one vote, and put in office contrary to the votes of the creditors.
"The Sheriff has minutely examined the authorities bearing upon this question, and he cannot find any case exactly bearing upon the point, but all of them tend in the direction of a new election. In the case 10th July 1841, Mackersy, 13 Jurist 538, one competitor was declared at the meeting to have a majority of votes, and had his cautioners named and approved of. The other, having a minority of votes, omitted to name his cautioner. The successful candidate did not lodge a note of objections against the unsuccessful candidate, but he lodged such note against the election of his competitor. The Sheriff, apparently without any scrutiny of votes, held that as the successful candidate had lodged no note of objection against his competitor there was no competition before him, and that therefore the person in an apparent minority must have the office. On appeal, the Court found both parties to be in the wrong, and therefore ordered a new election.
"A similar decision was given 11th July 1846, Miller, 18 Jurist 557, and there, both parties being again in the wrong, a new election was ordered. "The last case was a very intricate one, and which went up from this Court, 29th January 1848, Wright, 20 Jurist 172. There the person with the apparent majority was disqualified by a personal objection, whilst his competitor offered
1 The state shewed only £30 of household furniture, subject to the landlord's claim for rent.
as his cautioner a person who was not approved of by the meeting. Therefore the Court again held that neither party could take office, and ordered a new election. In all these cases expenses were given to neither competitor-a rule which has been followed in this case. Although in all these cases the Court of Session ordered the meeting of creditors, it by no means follows that the Sheriff might not have done so. The case was before them on appeal, and as the Superior Court had and has the power to award sequestration, and order the first meeting, it naturally followed that they should have the same power to order a second meeting without the circumlocutory proceeding of remitting to the Sheriff to do what they themselves could as well perform.
Another petition was presented to the Sheriff in name of the bankrupt, with the same concurring creditors, including the one whose vote was rejected. The Sheriff appointed a third meeting, at which the candidate who had formerly been found to be in the majority was without competition elected trustee, and his nomination declared and confirmed, as well as that of commissioners.
JOURNAL OF JURISPRUDENCE.
RIGHTS OF TRADE UNIONS UNDER THE TRADE UNION ACT, 1871.
TRADE unions are associations of workmen for mutual assistance in securing generally the most favourable conditions of labour." 1 They are not possessed of any of the privileges of corporations, and differ from ordinary partnerships only in so far as the rules applicable to these are modified by the will of their members, or in a few respects by the common law, in order to meet the requirements of bodies that have a numerous and fluctuating membership. A trade union is the creature of contract. Assuming its purposes to be lawful, its constitution, as contained in its rules, is like a partnership agreement, for breach whereof the remedy in England is mostly in Chancery. Members of lawful societies have the same rights to the property of the Society as other joint owners have to joint property, or as other beneficiaries or cestui que trustent have with respect to the property held in trust for them.
But although such rights exist in law, it is difficult in practice to enforce them. In most unions the members are being changed perpetually by outgoing and incoming, while no provision has been made for transmission of rights of property." It is evident, moreover, that in the case of such extensive associations, the number of the individuals composing them makes it difficult for the ordinary tribunals to deal with their civil rights satisfactorily. Until 1871 it was practically impossible for a trade society to sue a member or for a member to sue a society: a society could maintain no action against third parties; the Courts can yet be called in to adjust the rights of members at its dissolution; and each member still incurs an indefinite liability for its debts.3
In England there was a technical difficulty in punishing violations of the rights of property belonging to a union by its own
1 Messrs. T. Hughes and F. Harrison in Final Report of Trade Union Commission, 1869, p. xli.
2 Sir Wm. Erle, Law Relating to Trade Unions, 3.
3 Way v. Kay, June 5, 1828, 6 S. 914. Clark on Partnership, 544. Macmillan v. F. Ch., 9th July 1862, 24 D. 1282. Attwood v. Small, 7 B. & C. 390. Bramah v. Roberts, 3 Bing. N. C. 963. Todd v. Emly, 10 M. & W. 505.
VOL. XVII. NO. CXCVIII.-JUNE 1873.