Register House (where the continued vacancy in the offices of depute-clerk register and curator has excited some comment), to Land Court reform, and to Scottish police methods. The last question arose, of course, from the evidence given by the Governor of Duke Street Prison at the Kirkintilloch murder trial, in which he reflected adversely on the police methods of identification. The judge who presided at the trial, however, expressed the opinion that the allegations made against the police in this connection were based upon suspicions which were groundless, and the Secretary for Scotland has silenced critics for the time being by saying that, so far as this particular case was concerned, he saw no reason to suppose that what the learned judge said was not well founded. Evidently basing his enquiry upon the amusing details of a recent Sheriff Court case, Mr Macquisten has asked the Secretary for Scotland whether he was aware that fishery cruisers were only permitted to use blank cartridge to fire upon poaching trawlers, who cover up their marks and steam away, and whether he would instruct the fishery cruisers to fire charged cartridge upon such trawlers, and cause them to heave to and be conclusively identified and brought to justice. The Secretary for Scotland has promised to consider the question of securing identification in this class of case. an 6 Courts and in the public eye, of dignified sportsmanship on moor and stream in vacation, and of an extremely intellectual form of 'High Jinks,' has always been the characteristic manière de vie of the typical Scots advocate in our own and in other generations." It is hard to say which is the more admirable--the writer's knowledge of the French tongue or his familiarity with Scots legal habits. 66 Again, comment The writer makes one peculiar reference to one of our high judicial offices. Referring to the occasion on which Lord Dunedin generously waived his claim to the Lord President's chair, he says: The great office of Lord President fell vacant, the only high office on the Scots Bench (except, perhaps, the Lord JusticeClerkship, which, however, carries no special prestige), and one which unites in itself the functions of the English Lord Chancellor and Lord Chief Justice.' It would be interesting to hear the comments of Braxfield and Inglis, to name only two among the great men who have held the Justice-Clerkship, on the daring scribe who ventured to assert that their position carried no special prestige. In a recent book of reminiscences, the same office is treated even more disrespectfully. Lord Coleridge, who in the dual rôle of distinguished judge and eminent scholar should surely know better, refers to the Monson trial, and describes The following passages are extracted from the Justice-Clerk who presided as "Judge "Appreciation" of Lord Dunedin which Macdonald of Scotland." | appeared recently in an English law paper: would be valuable. "He had chambers, like all other advocates, in the stately Athenian precincts of the New Town,' crossed over by Princes Street and 'the Mound' every morning to the Hall of Parliament House just beyond the picturesque vale which bisects Edinburgh in two, fought his cases in the courts, and played golf in the late afternoon upon the Meadows' just half a mile away, as five generations of Scots advocates have done before and since." We have made enquiries, but are informed that the Bar Foursomes are not to take place in the Meadows this year. But, besides golf on that hallowed spot, the advocate is a highly privileged creature, allowed actually to enjoy himself amid the austere gloom of Edinburgh society. Among the bourgeoisie proper, whether haute or petite, the merchants, professional men, and tradesmen, a certain Puritanical and Whig gloom of spirit renders all approach towards English enjoyment of leisure, at theatre and dance and game, almost a forbidden thing. But the Scots Bar has always been to some extent a privileged body in Scotland, permitted to enjoy in its moments of relaxation a certain degree of revelry not sanctioned in others. A certain alternation of austere decorum in the But The Dail Eireann, on the initiative of the Free State Government, has abolished, in Southern Ireland, the limited right of divorce hitherto open to Irish nationals. The Irish law Courts have never enjoyed power to grant decrees of divorce a vinculo matrimonii. Their power was restricted to granting decrees of judicial separation a mensa et thoro, and to declarations of nullity of marriage on grounds existing at the date of the contract. Parliament had the right to grant divorce to such persons as had the inclination and the means to promote a private Bill for divorce in the House of Lords. This power passed, under the Treaty, to the Free State Parliament, which, acting it is said under clerical pressure, has decided to abolish it. The consequences of this action may be serious, but they are largely political and do not concern us here, save in one respect. It is said that Irishmen anxious to obtain divorce will resort to Scotland, and one lively journalist has already looked into the future and dubbed Edinburgh a Scottish Reno." It is hoped that no one will be induced to join the Bar by the prospects of practice thus attractively set forth. Opinion on divorce in Ireland being what it still is, no great number of injured spouses is likely to 66 seek redress in any Courts, and the proportion they were informed by the Post Office that in ours will be negligible. Change of domicile their client's claim should be referred to the will be necessary, and will be subject to careful Registrar. scrutiny as.to its bona fides. Quite apart from religious sentiment, not many Irishmen, from among the very limited class wealthy enough to pursue such a means of escape, would willingly exile themselves on our shores for the sole purpose of securing divorce. Meanwhile the administratrices approached me and asked me to hear the dispute; and, being unaware that they had begun Chancery proceedings, I issued notices of hearing to them, the Post Office, and the alleged donee in the ordinary way. On 24th March the donee's solicitor wrote to me that Chancery proceedings were pending, and that they, in their turn, had been advised by counsel that the matter was JURISDICTION OF H.M. REGISTRAR OF one for the Chancery Division, and asked for FRIENDLY SOCIETIES. an adjournment till after the decision. I replied on 26th March that I had exclusive JURISDICTION OF REGISTRAR QUESTION-DIS- jurisdiction, and that I would only adjourn PUTE BETWEEN POSTMASTER-GENERAL AND MORTIS CAUSA-EVIDENCE-EXPECTATION Edward Hiatt. Post Office Savings Bank, £369, 10s. Hearings, 31st March, 30th August; Award, 1st September 1924. The written judgment of the Chief Registrar was as follows: In this case the jurisdiction of the Registrar to hear the dispute is questioned in peculiar circumstances. The depositor died unmarried and intestate on 27th November 1918, and administration to his estate was granted out of the Principal Probate Registry on 14th February 1919 to Kate Maud Wynn and Ada Caroline Jones, his lawful nieces and two of his next-of-kin. On 28th January 1919 the administratrices informed the Post Office of his death, and stated that the deposit-book was held by a Mrs Butfoy. On 21st March 1919 the solicitors for the administratrices applied to the Post Office for payment, and stated that Mrs Butfoy held the book and claimed the deposits as a donatio mortis causa, and that if the Post Office would not pay without production of the book they proposed to take proceedings. On 25th March 1919 the Post Office told them that the dispute ought to be referred to the Registrar. The solicitors then appear to have consulted counsel, who advised them that the Registrar could not deal with the matter. They then began proceedings in Chancery against the alleged donee. On 1st March the solicitors for the alleged donee, whose real name was given as Maude Amelia Sayers, informed the Post Office that she claimed as a donee mortis causa, and asked the Post Office not to hand over the deposits till a decision was obtained. On 25th March the case if both parties consented and agreed to abide by the decision of the High Court. The administratrices did not consent, and at the hearing an objection to the jurisdiction was raised by counsel for the donee. I did not accept his arguments; but as the Chancery proceedings had been begun by the administratrices and not by the donee, I told the administratrices that if they wanted to come before me they must discontinue those proceedings, as they could not proceed before two Courts at the same time. I quite understood that, if they discontinued, the matter would come before me without any further question on the part of the donee. On 10th June 1920 the Chancery proceedings were dismissed, and the administratrices subsequently paid the taxed costs. On 27th July the solicitors for the administratrices referred the matter to me, and on 9th August they informed me that the donee had begun a fresh action in the Chancery Division. The writ was, in fact, issued on 6th August. I told them that, in my opinion, that did not make any difference. On 16th August I issued notices of hearing for 31st August to the administratrices, the Post Office, and the alleged donee. On 18th August the donee's solicitors stated that they had begun proceedings in Chancery, that they were advised by counsel that the Chancery Division was the proper tribunal, and that they proposed to appear by counsel at the hearing. I replied on 20th August that I would hear any submission they had to make at the hearing as to the jurisdiction, but that, if I decided I had jurisdiction, I should proceed to hear and determine the dispute. I have now had the advantage of hearing counsel's arguments and do not agree with them; but as the point is of great importance and has not been argued before me previously, nor, so far as I know, before my predecessors, I have thought it better, after giving judgment summarily against the donee on this point, to set out my reasons in a written judgment, so as to settle the matter once and 1863 (26 & 27 Vict. cap. 87), sections 48 and 49, for all as far as I am concerned. Counsel rested his main contention on the construction of the sections, and did not cite any authority in support. As a matter of fact there is none. He also contended that the order of 10th June 1920, dismissing the Chancery proceedings, made the matter res judicata. But if I am right in holding that the jurisdiction of the High Court is ousted, this order was made coram non judice and can have no such effect; and, moreover, the alleged donee has since begun new Chancery proceedings, so that obviously the first order did not conclude the matter. The jurisdiction of the Registrar in Post Office Savings Bank cases is conferred by the Savings Bank Act, 1844 (7 & 8 Vict. cap. 83), sections 14 and 15, which are as follows: 14. ...If any dispute shall arise between the trustees and managers of any savings bank and any individual depositor therein, or any executor, administrator, next-of-kin, or creditor, or assignee of depositor, who may become bankrupt or insolvent, or any person claiming to be such executor, administrator, next-of-kin, creditor, or assignee, or to be entitled to any money deposited in such savings bank, then, and in every such case, the matter in dispute shall be referred in writing to the barristerat-law appointed under the said recited Acts, who shall have power to proceed ex parte on notice in writing to the said trustees or managers left or sent by the said barrister to the office of the said institution; and whatever award, order, or determination shall be made by the said barrister shall be binding and conclusive on all parties, and shall be final to all intents and purposes without any appeal; and no submission to, or award, order, or determination of the said barrister shall be subject or liable to or charged with any stamp duty whatever. 15. On any such reference it shall be lawful for the said barrister, and he is hereby authorised to inspect any book or books belonging to the said institution relating to the matter in dispute, and to administer an oath to any witness appearing before him, or to take the affirmation in cases where affirmation is allowed by law instead of oath; and if upon such oath or affirmation any person making the same shall wilfully and corruptly give any false evidence, every person so offending shall be deemed and taken to be guilty of perjury, and shall be prosecuted and punished accordingly. This Act originally related to trustee savings banks, but was repealed by the Trustee Savings Banks Act, 1863, section 1, and Schedule A. Its provisions, however, were preserved and applied for the purpose of the Post Office Savings Bank by the Post Office Savings Bank Act, 1861 (24 & 25 Vict. cap. 14), section 14. The jurisdiction in trustee savings bank cases is conferred by the Trustee Savings Banks Act, which are practically identical in terms with the sections set out above. The jurisdiction conferred on the barrister by those Acts was transferred to the Registrar by the Savings Bank (Barrister) Act, 1876 (39 & 40 Vict. cap. 52), section 2. I may add that, in fact, the jurisdiction has existed since 1829, when it was first conferred by 9 Geo. IV. cap. 92, section 45. This jurisdiction, which has been exercised for over ninety years, has never been successfully disputed; and, in my opinion, the authorities shew that the Registrar has exclusive jurisdiction in such a dispute as the present dispute, ousting the jurisdiction of the High Court and of every other Court. There is no English decision dealing with such a dispute as the present, where the PostmasterGeneral or the trustees have declined to pay deposits to a depositor or his administrator, or a person claiming to be entitled to the deposits, on the ground that there is another party who claims them, and to whom also the PostmasterGeneral or the trustees have also declined to pay the deposits on the ground of the existence of the other claim; but there is a Scottish decision which is directly in point, and, to my mind, a Scottish decision must be regarded as equally binding on the Registrar where, as here, he exercises jurisdiction in both countries It would under a statute applying to both. be intolerable if the Registrar exercised jurisdiction in certain cases in Scotland under a statute and declined to exercise jurisdiction in England in the same cases under the same statute, particularly as by section 3 (1) of the Friendly Societies Act, 1896, the Assistant-Registrar for Scotland is subordinate to the Chief Registrar, and by section 2 of the Savings Bank (Barrister) Act, 1876, he is to exercise his powers "subject The to the direction of the Chief Registrar.' case is Lewis v. Paulton (14 S.L.T. 818), also reported in the "Chief Registrar's Report for 1907," Part A, p. 106, and the decision was that of Lord Guthrie, one of the most eminent of modern Scottish judges. The parties were the executrix of a depositor, persons claiming as creditors, the Assistant-Registrar for Scotland, and the Lord Advocate representing the Postmaster-General, so that the matter was fully argued, not only by the parties concerned, but by the officials who were interested. The action was for a suspension and interdict against proceedings taken or threatened by the creditors before the Assistant-Registrar to determine whether deposits were payable to the executrix or to the creditors, and the decision goes even beyond the present case, because the claim was one by creditors, which did not go to the title of the executrix, whereas here the competing claims are completely is made a dead letter, for it would be competent for inconsistent with one another. His judgment was as follows: At the present moment the Postmaster-General is in the position of refusing to pay the sum deposited with him at Campbeltown to either of the parties claiming it, namely, the complainer and the leading respondents. In these circumstances is there a dispute between him and " a person claiming to be entitled to money deposited in a savings bank" in the words of the 1863 Act read short, or in the words of the 1876 Act, " a person claiming through or under a depositor? I am of opinion that there is, and that the provisions of the statutes compelling arbitration apply. The complainer maintains that the statutes only apply where the Postmaster-General is the proper contradictor, and that they do not apply to the present case where the Postmaster-General has no interest in the merits of the dispute, these being at issue only between the two claimants to the fund inter se. He seeks to limit the application of the statutes to such cases as questions about the exact amount of principal or interest due to the depositor, | or a person claiming under the depositor. I do not find this limitation in the statutory words, and to read it in would, I think, be contrary to the obvious intention of the Legislature. The complainer founded on the way in which the question arose among the parties, and argued that there had been no dispute between her and the Postmaster-General, because she had never claimed the money directly from him. I do not think this is material. The test seems to me to be: Suppose the complainer had applied to the Post Office for payment, she would have been met by a refusal. Suppose she had then raised an action for payment; the Post Office would have pled the statutory arbitration, and I do not see how it could have been denied that a dispute would then have existed between the Postmaster-General on the one hand, and the complainer as a person claiming through or under a depositor on the other hand. It does not seem to me to make any difference that in the arbitration the Postmaster-General (the other claimant having come forward) will stand aside and leave the claimants to fight out the matter before the arbiter. This decision appears to me to be amply supported by the other cases in which the jurisdiction has been dealt with. both parties to refer the dispute to arbitration, if they both agreed upon it, without the intervention of the statute. In order, therefore, to give these words of the statute any force or operation, the word "shall" must be construed as obligatory, that is, that the matter in dispute shall of necessity be referred to arbitration and not be determined in any of the Courts of Westminster Hall. But, looking at the object and intention of the Legislature, we think it clear that the remedy by action is taken away and that by arbitration substituted in its place. These institutions were intended to comprehend a very large number of depositors, chiefly from the lower walks of life; many of them contributing very small sums, and claiming very small profits by the addition of interest. On the other hand, the trustees and managers are uncertain in point of number. To allow, therefore, actions at law to be maintainable by each depositor against the trustees upon the occasion of every dispute with the institution, either as to the amount of the balance due or the interest claimed by him, would be, in effect, to cause the ruin both of the depositors and the institution, by casting the costs of an action in the superior Courts at Westminster upon the losing party. No person would fill the gratuitous office of a trustee or a manager if he was exposed to the hazard of suits of law, at once so expensive and so numerous; no depositor would be able to enforce his just rights, if he must sue in the superior Courts, at the hazard of being defeated with heavy costs if he sued more of the trustees than he might be able to prove liable, or subject to have his suit abated if he sued too few. It is evident, therefore, that the Legislature contemplated the cheap, simple, speedy, and equitable adjustment of all disputes by a reference in the mode pointed out in the Act, instead of a more expensive, dilatory, and uncertain remedy by action at law; and we think we should defeat that very serviceable object-serviceable alike to be depositors and to the institution-unless we construe the words used as words which import an obligation to refer, and which take away the right to sue in the superior Courts. This decision has been followed or cited with approval in a large number of English cases: R. v. Mildenhall Savings Bank, 6 A. & E. 952 at p. 957, though it was stated there that Parke B., when at the Bar, had advised to the contrary; Morrison v. Glover, 4 Ex. 430 at pp. 442, 444, where Parke B. was a member of the Court and agreed in the judgment; Reeves The leading case is Crisp v. Bunbury (8v. White, 17 Q.B. 995 at pp. 1015, 1016; CalBing. 394), decided under 9 Geo. IV. cap. 92. laghan v. Dolwin, L.R., 4 C.P. 288 at p. 294; 686; Huckle v. Wilson, 2 C.P.D. 410 at p. 414; Prentice v. London, L.R., 10 C.P. 679 at p. Municipal Permanent Building Society v. Kent, 9 A.C. 260 at p. 275; and Joseph Crosfield & Sons Ltd. v. Manchester Ship Canal Co., [1904] 2 Ch. 123 at pp. 135, 149. cap. 92 The headnote is : "Since 9 Geo. IV. I must refer for the sake of completeness to three other reported cases under 9 Geo. IV. cap. 92, section 45. If recourse to arbitration is not intended except In R. v. Cheadle Savings Bank (1 A. & E. both parties choose to adopt it then, indeed, the Act | 323 n.) a mandamus was granted against the trustees of a savings bank to appoint an arbitrator on a claim made to deposits by minors. The deposits had been withdrawn, and it was a question whether the person who withdrew them had authority to do so. In R. v. Witham Savings Bank (1 A. & E. 321) a mandamus to the trustees to appoint an arbitrator was refused because it was not clear whether the applicants, who purported to represent the depositors in question, did, in fact, represent them. In R. v. Northwich Savings Bank (9 A. & E. 729) a mandamus to the trustees to appoint an arbitrator was refused because it was clear an arbitration could have no result, inasmuch the period during which, under the rules, the deposit could be claimed had expired. There is only one other English case, so far as I know, dealing with the matter, which is only reported in the " Chief Registrar's Reports," Part A, for 1886, p. 100, and 1887, p. 70, under the title of Cardiff Savings Bank v. Aberdare District of Oddfellows, though its real title appears to have been R. v. Registrar of Friendly Societies, as it was an application for a writ of prohibition against the Registrar to restrain him from hearing a dispute arising out of the failure of the Cardiff Savings Bank, namely, a claim by depositors for payment in full in spite of a compromise into which they had entered with the trustees. The writ was refused and the trustees appealed. The appeal was dismissed, Stephen J. saying: "If there was a dispute and if there was a depositor, then it was admitted that the matter must go before the Registrar of Friendly Societies.. The will a question as this, whether a savings bank or its depositor should suffer from a forgery should be withdrawn from the cognisance of the ordinary Courts, so that apparently it is a question which can never be authoritatively determined; still, that appears to be the effect of the statute, the terms of which are too plain to admit of question. I think the policy of the Act is to protect savings banks and their depositors from the cost of ordinary litigation, and to provide that disputes between them should not come into Court at all." R. (Cochrane) v. Littledale (10 L.R. 1, 78) and, on appeal (12 L.R. 1, 97), concerned a claim by the administrator of a deceased depositor against the Newry Savings Bank for payment of certain deposits made by the depositor in fictitious names. The dispute was referred to the Assistant-Registrar for Ireland, and he, for reasons which are not very plain, but apparently because he regarded the whole of the transactions as fraudulent and outside his powers, declined to hear the dispute. The administrator applied for a mandamus. The Court of first instance had no doubt that “on the claim made by the personal representative of the depositor to be entitled to the money so deposited, which was controverted by the trustees and managers of the bank, a dispute arose within the meaning of section 48, which the Assistant-Registrar had jurisdiction to entertain," but they refused the writ because the cause of action arose ex turpi causa and because it would be fruitless, as the Assistant-Registrar could only come to the same conclusion as the Court. The appeal was dismissed on the same grounds. of the Legislature is declared by the 48th section of the Act of 1863, which seems to contemplate Lynch v. Fitzgerald (2 Ir. Jur. (O.S.) 268), that these disputes are to be decided in a par-reported also in the "Report of the Select Comticular way. I have nothing to say as to the mittee on Savings Banks," etc., 1853, and in wisdom or the character of that legislation." Forbes on the Law relating to Trustee and There it is, and it is our duty to carry it out." Charles J. said: "Whether there is jurisdiction or not depends on whether there is a dispute between the trustees or the managers of the savings bank and any individual depositor therein or any person claiming to be entitled to any money deposited in the savings bank. The affidavits prove satisfactorily to my opinion that there is a dispute." The other authorities are one case in Scotland and five in Ireland. In Melrose v. Adam (24 R. 483) there was a dispute whether the depositor should be credited with a certain amount, which had been withdrawn by a forged order, and the depositor proceeded by action. The action was dismissed on the ground that the AssistantRegistrar for Scotland had exclusive jurisdiction over the matter. Lord Kincairney said "It may seem a little startling that so general Post Office Savings Banks," p. 213, was an action of debt by a depositor against one of the trustees of the Tralee Savings Bank on an award made by the Registrar. It was an award against one of the trustees personally, and the award was set aside, but only because the Registrar had not complied with the statutory requirements. Blackburne C.J. said in the course of his judgment, dealing with the contention that the jurisdiction was limited to claims against the bank as an institution and did not extend to the defaults or personal responsibility of the trustees: deemed and intended to be adequate to enable the To me it seems clear that its provisions were arbitrator in all cases of dispute between depositors, and those who had acquired their rights, and the trustees, to do complete justice in the same manner and to the same extent as might and could have been done by the ordinary tribunals of the land if |