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plaintiff pledged a large quantity of furniture tration of a lady greatly distressed for money and plate, valued at about £2000, as a further not being regarded as standing on equal terms security for the loan. By the instrument of with the lender. The facts of the case are charge it was provided that in the event of somewhat involved and need not be explained default of payment of the promissory note, or in detail. The plaintiff, a widow, was in any instalment, the defendant was to be at difficulties in consequence of having resorted to liberty to sell the furniture and chattels and money-lenders on several occasions. She very repay himself thereout for all principal, interest, unwisely borrowed more money from the and costs arising out of the transaction. When defendant, another registered money-lender, and
. the plaintiff signed the necessary documents also agreed to pay the defendant £100 in conat the defendant's office she had no independent sideration of services to be rendered by him in advice and was unable to calculate the rate of adjusting her financial arrangements. This interest which was charged upon the loan. necessitated a further loan from the defendant, At that time she was in dire financial straits and eventually the plaintiff became involved and had no alternative but to sign the pro- in a perfect network of complicated financial missory note and the instrument of charge on transactions. The borrower then claimed relief her furniture and chattels. The plaintiff failed under the Money-Lenders Act, 1900. Keke
the first instalment due under the wich J. did not regard the charge of £100 for promissory note, and the whole sum of £500 services to be rendered by the money-lender became payable forthwith. Even if all the as unconscionable, but the learned judge payments had been duly made, the rate of ordered an account to be taken on the footing interest would have been 821 per cent. Mr of the plaintiff being charged with interest at Justice Eve held that as the loan was not made 5 per cent. on the amount actually advanced. on personal security only, but was adequately This decision was affirmed by the Court of secured by the goods pledged, the rate of Appeal, where Vaughan Williams L.J. (21 interest, which might not have been regarded T.L.R. at p. 12) said that the Legislature threw as necessarily excessive for a loan on personal upon the money-lender who chose to advance security only, became outrageous and extor-money to persons in a position of financial tionate for an advance upon good security. distress the obligation not to take advantage of The learned judge was also of opinion that the their distress or of their incapacity to negotiate. lender had made an unconscionable bargain, The third leading distinction is between and directed that the contract should stand cases where some unconscionable circumstance as a security for £300 with interest, at the rate is pr ent and cases where no such circumof 15 per cent. from the date on which the stance exists. The distinction is a wide one, loan was originally made. In this connection it and a number of unconscionable circumstances is very important to note that a high rate of have already been discussed. It remains, interest cannot per se constitute harsh and therefore, to enumerate certain other important unconscionable" bargain. The rate of interest grounds on which the Court may be entitled charged on the loan is a very important element to reopen a money-lending transaction under to be considered, but it must be combined with the Act of 1900. A fairly common other circumstances in order to enable the scionable circumstance" in contracts of loan Court to relieve the borrower on the ground is found in connection with the default clause. that the transaction in question is a "harsh As we have already noted, the customary and unconscionable" bargain within the mean- default clause provides that the whole amount ing of section 1 (1) of the Money-Lenders Act, of principal and interest outstanding shall 1900.
become due upon default in payment of any Another leading distinction is that between agreed instalment. This clause is, of course, a borrower who is an intelligent and competent thoroughly understood by professional moneyperson, able to appreciate the terms of the lenders, but its full significance is not always bargain and in a position to bargain with the appreciated by the borrowers. The authorities lender on fairly equal terms, and a borrower have established that it is the duty of the who does not possess such qualifications and money-lender to bring the nature and the advantages. There is, for example, a wide gulf effect of the default clause to the attention of between an experienced man of business who the borrower. n Levene v. Greenwood (20 resorts to money-lenders in order to tide over T.L.R. 389) Channell J. held that a default some period of temporary financial embarrass-clause understood by the lender, but not underment, and an elderly widow, unaccustomed to stood by the borrower, made the transaction deal with monetary affairs, who is driven to “ harsh and unconscionable" within the meanhave recourse to money-lenders through strait- ing of the statute. ened circumstances. The case of Poncione v. Other common examples of harsh and Higgins (1904, 21 T.L.R. 11) affords an illus- unconscionable circumstances comprise the
following: Lending money to a youth in we come to consider the personal status and reliance upon fear of exposure to force his financial position of the borrower. At the parents to pay; improperly tempting the bor- time of obtaining the loan the borrower was rower, as, for example, by sending bank-notes employed by a responsible firm at a salary which in reply to the first preliminary letter of investi- varied from £600 to £1000 per annum. The gation; the exaction of a high rate of interest defendant Kerman said that he was not aware when the lender knows that he is not running of this fact. Tomlin J., however, expressed any appreciable risk; in fact, any loan trans- the view that a lender could not resist an appliaction at a high rate of interest brought about cation for relief under the Money-Lenders by means which are not consistent with fair Act by saying that he was unaware of material dealing between
In this facts which he might have elicited by making connection, the circumstances in which the reasonable inquiries. The learned judge was Court will exercise its discretion in reopening satisfied that each of the four transactions was a transaction with a money-lender were admir- “harsh and unconscionable.” He considered ably summarised by Eve J. in the course of that 30 per cent. was a fair rate of interest his judgment in Jennings v. Seeley (40 T.L.R. to be charged by both defendants, and directed 97): First,” said the learned judge, “there an account upon that basis to be taken in is the status of the contracting parties. Were respect of each of the first three bills, with a there any, and, if so, what disparities as to age, declaration that the defendant Kerman was intelligence, education, and capacity between liable to repay any sum he had received in excess them ? Next, one has to see whether there thereof. In regard to the defendant company was any trickery, overreaching, or undue M. Dunn Ltd., an account must be taken in pressure or other misconduct, not necessarily respect of the fourth bill on the same footing, amounting to fraud or misrepresentation on the plaintiff undertaking to redeem the goods the part of either, and, if so, how far such by paying whatever was found due to the misconduct really influenced the conduct of company on taking the account.
And on the other; and thirdly, one must not interfere those terms Tomlin J. gave judgment against in the case of a party understanding the contract both defendants with costs. and appreciating the obligations thereby undertaken and the consequences resulting from any breach thereof. Now it may well be that the answers to those questions, or some of them,
COMPANY PRACTICE. are such as to afford good ground for the exercise
SCHEMES OF ARRANGEMENT. of the statutory discretion. On the other hand, while not affording such good grounds, these
[From a Correspondent.] answers may constitute contributory elements in favour of its exercise when the further rele- Practitioners are perplexed by the unvant matters have been examined. But it by no reasoning diversity of practice between the means follows that if there be no disturbing two Divisions of the Inner House in reference answer to the questions with which I have to to the procedure for the carriage of schemes of deal the contract may not be varied.
arrangement under section 120 of the ComWhat were the circumstances present in panies (Consolidation) Act, 1908. There seems Garde v. Kerman and Others (supra)? There is to be no justification for different rules in such no doubt that the first three bills of sale granted matters. Not so long ago the First Division by the borrower were adequately secured on the announced that all applications for sanction of furniture. It is true that when the fourth bill schemes under this section should undergo an was executed some slight fall had taken place induciæ of so many days for the purposes of in the market value of the furniture, but the intimation on the Walls and in the Minute lender does not appear to have given any Book. So far as public notification is conregard to that. The value of the security did cerned, this formality serves much the same not vary substantially in all four cases, and the purpose as an intimation in the old days to learned judge (Tomlin J.) accepted the view the lieges at the pier and shore of Leith by that at the time of the first transaction the the almost now extinct messenger-at-arms. value of the furniture was such as to justify But the application for sanction may be a loan of £175 to £200. It is true that the incompetent, and there is just the millionth plaintiff borrowed money on four different chance that some eagle eye may discover this occasions on the same security, but it must be and lodge answers, and so prevent the Court remembered that each loan was substantially from ordering abortive meetings. The Second exhausted in paying off the previous advance. Division takes an entirely opposite and perhaps So much for the value of the “real” security, a more business view, and orders the meetings which might be regarded as fairly sound. Now by its first deliverance to be summoned rigạt
away. Naturally, some solicitors rush to the an English paper. “There is a shortage of Second Division to escape all necessity for a solicitors, and in order to get the right men for first order for needless intimation. Surely the their offices, many firms are offering tempting Court ould rule by Act of Sederunt in favour terms to barristers to leave the Ba and qualify of one uniform practice for both Divisions. as solicitors. Many firms of city solicitors now
The Second Division, again, without any have ex-barristers on their staffs." It may be announcement to the profession, to judge by a doubted if there is a shortage in any branch of recent application in April last, has departed the legal profession in Scotland. from its own invariable practice, and that of the The extract quoted suggests that perhaps First Division for decades in another respect, this is the thin end of the “fusion” wedge. with regard to these arrangement schemes. Polls taken among solicitors have frequently It is no longer competent, according to the revealed that there is no demand whatever officials of the Second Division, for the Court among them for such a reform. Can it be that to authorise the directors of a company to fix a demand for it will first come from the other the dates of the meetings of creditors or of branch of the profession ? Certainly reform, members, or of both such classes, as they may which during the past year has been very find convenient. The proposed dates must much in the air, seems rather to have faded be specified in the prayer of the petition or away once more. There seemed some months supplied to the Court for incorporation in its ago to be a general agreement that something first order. It may be that English Chancery must be done, and done quickly, to save the judges adopt this practice. But one would situation. The Faculty of Advocates passed a conjecture that the Court is master of its own resolution asking for a Royal Commission to procedure, and as the section of the Act leaves consider the question of reform of Court of the Court to summon the meetings" in such Session procedure. Other legal bodies passed manner as the Court directs,” it is difficult to pious resolutions in similar terms. More than see wherein the Court is made so helpless as to that, concrete proposals of the way in which be unable to delegate the fixing of the dates reform might best be effected were laid before with time and place to the Board of Directors the learned faculties. The mountains rumbled ; of a going company or to the liquidator of a but nothing has been brought forth, not even a dissolving one. It is a pity that there is here mouse. Perhaps those concerned have decided also no common rule for both Divisions. Prac- that it is better to gang the gait we are going, titioners have long expected to see some and lapse through genteel stagnation into comprehensive Act of Sederunt dealing with complete decay, than to make a vigorous effort all company business, including liquidations. to restore an institution so obviously doomed as
C. K. the Court of Session. It may be so, but it
sometimes seems a little pusillanimous to go NOTES FROM PARLIAMENT HOUSE.
down without the semblance of a struggle.
During the vacation the appointment was Another session is here, and as regards work announced of the Scottish Ecclesiastical Comthere has again to be recorded an adverse missioners under the Church of Scotland report. The atmosphere in Parliament Hall is (Property and Endowments) Act of 1925. As once more what Lord Oxford would call one of was anticipated, the chairman is a senator of
inspissated gloom." The only really satis- the College of Justice, in the person of Lord factory feature is that, contrary to the general Ashmore; another of their number is Mr R. C. practice of recent years, there seems to be no Henderson, K.C. From the standpoint of the immediate prospect of a general election. As to Commission these are admirable appointments, the state of the rolls, for what it is worth, the but from the point of view of the Court's work session began with 41 cases in the First Division, it is to be feared that the appointment of Lord made up by 12 Summar Roll, 17 Short Roll, and Ashmore is virtually equivalent to depriving 12 Long Roll; the Second Division had a total the Court of the services of a learned and of 62 cases, made up by 14 Summar Roll, 45 popular judge for an indefinite period, possibly Short Roll, and 3 Long Roll. The Lords two or even three years. The duties of the Ordinary again have moderate rolls, and the Commissioners are multifarious and may extend opening days of session were once more marred over a very considerable time. They have to by a distressing rush to settle. One hundred frame and give effect to schemes under the Act and fifty-one cases were called in the vacation, relating to burgh churches, to deal with the and of these fully one-third are of the " con- transfer to trustees of churches, manses, endowsistorial” variety, raised largely in the names ments, to give effect to the provisions of the of poor" litigants. So far as the writer is Act which relate to the transfer of rights in aware, there is in Scotland no tendency such as glebes, and so forth. Of course they are masters that noted in the extract which follows from of their own procedure, and may possibly devise
means of dealing expeditiously with these Grant had now unrolled ; there were no husky difficult topics. They are to give“ such enquiry proletarians, in scarves and corduroy trousers, in each individual case as they may think fit,” spitting in the sawdust on the floor of the but without doubt in some cases it will need to public reading-room while discussing the latest be considerable. Mr Fisher, advocate, has been tips in the “Noon Record.” Nothing of that appointed secretary to the Commissioners. sort was visible. In fact, it was made quite
It will be remembered that when Lord plain at the trustees' meeting that there would Mackenzie's Committee recommended a Court be no change of any sort or kind in the public of Criminal Appeal for Scotland, Sir Herbert arrangements of the Library. But none the less Stephen came forward with two important im- a great tradition has been broken, and one provements which he suggested might be intro- cannot but be sorry for the end of another“ auld duced, in view of the need felt for them in the sang.”. Certainly the Faculty of Advocates English practice. The first was the ordering of could no longer sustain a burden of which they a second trial where it was felt necessary, the are no doubt well rid. But it is much to be second was the granting of appeals at the in- regretted that it was found impossible to retain stance of the Crown. A third, rather acute the name which two and a half centuries of their question has now arisen in England. There i devoted care have made famous, if not, indeed, are, it seems, far too many appeals, and some to politicians and plutocrats, certainly to every means of curtailing the present system may man of culture in both hemispheres. In the have to be sought. The Lord Chief Justice has books of every library there must be numerous more than once deprecated “the regularity, references to books or manuscripts contained in amounting to routine, of appeals from con- “ Advocates' Library, Edinburgh"; it seems
” victions for murder.” It is hard to see, how- a pity that our modern craze for nationalisation ever, any satisfactory method whereby appeal should have rendered these meaningless and can be allowed and then restricted. This point have stamped the new library with a name is one which must needs be carefully con- which lacks both character and tradition. But sidered when the new Scots Court is established. these things happen. It would be interesting Increased labour will in any case be thrown on to hear the views of “Bloody" Mackenzie on the judges, and whether our judicial establish- the subject. ment is large enough to bear the burden After various unedifying scenes in Comremains to be seen. It may be said, however, mittee the Law Agents (Scotland) Bill was that the question is academic, for if, as appears dropped by its promoters. The Bill likely, the inauguration of a Court of Criminal designed to set up a disciplinary committee for Appeal is deferred until it can be effected the solicitors' branch of the legal profession in simultaneously with reform of the Court of Scotland on the lines of the well-tried and Session, it may be that no one now living will successful committee which has been established
for many years in England. A great deal of the The “appointed day" has come and gone opposition to the Bill was based on the fear, real under the statute dealing with the transfer of or pretended, that it would give opportunities the Advocates' Library to the nation. On for victimisation of a political kind. It was 26th October the first meeting of the Board of suggested that to place the power of defining Trustees was held, under the presidency of Sir professional misconduct in the hands of a Herbert Maxwell. A large and distinguished coterie or clique of seven members selected by body assembled, prepared to apply to the the Lord President of the Court of Session library that steadfast, unremitting, and efficient would be a bad thing both for the public and attention which a body like the Faculty, (a rare solicitude on the part of a politician) necessarily absorbed in professional labours, for the members of the legal profession. A was never able to do. Speeches were made, in distinguished member of the Privy Council which suitable tributes were paid to the part and ex-member of the Cabinet stated that played by the Faculty in maintaining the everyone was filled with suspicion about the Library so long and so successfully. To the Bill, and it made them more suspicious that regret of the keen conveyancer there was no there had been no word of explanation from symbolical tradition of a book and a pinch members of the legal profession, who sat like of dust made by the Dean of Faculty to the dumb dogs.” Unfortunately, this state of mind Secretary for Scotland. Nor to the enquiring was so generally prevalent that the Bill had to visitor would any great change have been be dropped, especially in view of the fact that apparent on the following morning. There the Scottish Grand Committee had other Bills of was no queue of eager new proprietors of importance which required its immediate attenScotland's National Library pressing forward to tion. It is to be hoped, however, that a view the ample page, rich with the spoils of measure which commanded the support of time, which the munificence of Sir Alexander moderate men in all parties will be successfully
revived on a more favourable occasion, and as an abstract thing which involves no personal that it has not received its final quietus considerations. That Court is identified with from an opposition that was both factious and one living—we had almost said one immortal ill-informed.
Its abuses have all sprung to thei full enormity under him. If he has not produced,
be has reared, cherished, and protected them." LONDON LETTER.
But, once the revolution had begun, there
can be no doubt that the Law Society was the THE TEMPLE, 27th October 1925. most powerful influence that enabled the
revolution to be carried through. In fact, the The year 1825, besides seeing the birth of late Mr Blake Odgers, K.C., in his lecture in Paul Kruger and the invention of the candle, “A Century of Law Reform" on "Changes in witnessed also the establishment of the “ Society Procedure and in the Law of Evidence," points of Attorney Solicitors, Proctors, and others, not out that, in that very Court of Chancery, being barristers, practising in the Courts of thanks largely to the efforts of the Law ciety, law and equity of the United Kingdom.” They enormous abuses were swept away. Individual took a longer time to describe everything a barristers and judges have in their time done hundred years ago. To-day we cannot be great work for the development and simplificabothered to refer to that same society by any tion of legal procedure—and now and again we longer name than “the Law Society," but, have had a reforming Lord Chancellor—but
a though its name may be short to-day, its their efforts were unco-ordinated and their views influence for good has been very great. A were not backed up by any corporate body: symposium was published in 1901 called " A It is largely due to the united and powerful Century of Law Reform,” being a collection of voice of the Law Society that the present Law twelve lectures given by various eminent Courts were opened forty years ago, when the lawyers on different aspects of the complete Courts were concentrated under one roof in a revolution brought about in every form of legal convenient place, that the Solicitors' Act was procedure and judicial administration between passed in 1843, and that the Supreme Court of 1800 and 1900. It is a most interesting book, Judicature Act was passed in 1873, all achieveand the picture it gives of legal administration ments of the greatest importance. in 1800 bears scarcely a sin glo point of resem- It is, of course, easy to make a butt of the blance to legal administration to-day. In Rent Restrictions Act and to shew the abpoint of fact, that revolution really only began surdities inherent in it, but what are we to say about 1830 and not in 1800, and the greatest when two Divisional Courts, differently constimulus to revolt was probably given by the stituted, give flatly contradictory judgments on insupportable weight of Lord Chancellor Eldon. the same point of law? How is an unfortunate A few days ago the “ Times” published an lawyer to advise his client, except by saying extract from a leading article printed by it in that it does not matter what the County Court 1825 which is worth transcribing as shewing judge may think on this point, because, even the state of public feeling at the time that the on appeal, no one can say which way a third Law Society began its beneficent career. Divisional Court, differently constituted from
“Our table is loaded with the complaints of the other two, may lean. It is an apparently worn-out and ruined heads of families against simple point in dispute. Can an order for Lord Chancellor Eldon and the Court which he possession be made against a defendant who overhangs, as it were a perennial nightmare. has legally sublet and who is thereby himself Neither public opinion, nor parliamentary no longer in actual occupation ? As long ago enquiry, nor the sense of right, nor the feelings as 15th April 1924 an appeal from the Chesterof humanity, nor the promised approach of an field County Court was heard by a Divisional event which levels all ranks and crushes all Court consisting of Swift J. and Acton J. perverted powers and punishes all trans- (Hicks v. Scarsdale Brewery,  W.N. 189). gressions, whether negative or positive, seem The County Court judge held that an order for to penetrate that case-hardened fortress in possession could be made. Acton J. disagreed which the spirit of Chancery has for almost a with this decision, but Swift J. agreed, and so, fourth part of an hundred years enthroned of course, the opinion of the appellate Court itself. No cries of distress can melt it—all being equally divided, the decision of the mortal arms rebound from its adamantine inferior Court held good. On 5th February 1925 surface-neither moth nor mould have yet im- the Court of Appeal in Northern Ireland, in paired its vigour ; but Time, the consumer of Martin Estates v. Watt & Hunter ( all else beneath the sun, is himself devoured by W.N. 79), came to the same decision. Moore the everlasting demon of the woolsack. It is L.J. expressly said that he preferred the convain and foolish to talk of the Court of Chancery clusion of Swift J. in the former case to that