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Register House (where the continued vacancy in Courts and in the public eye, of dignified sportsthe offices of depute-clerk register and curator manship on moor and stream in vacation, and has excited some comment), to Land Court of an extremely intellectual form of High reform, and to Scottish police methods. The Jinks,' has always been the characteristic last question arose, of course, from the evidence manière de vie of the typical Scots advocate given by the Governor of Duke Street Prison in our own and in other generations. It is at the Kirkintilloch murder trial, in which he hard to say which is the more admirable—the reflected adversely on the police methods of writer's knowledge of the French tongue or his identification. The judge who presided at the familiarity with Scots legal habits. trial, however, expressed the opinion that the The writer makes one peculiar reference to allegations made against the police in this con- one of our high judicial offices. Referring to nection were based upon suspicions which were the occasion on which Lord Dunedin generously groundless, and the Secretary for Scotland has waived his claim to the Lord President's chair, silenced critics for the time being by saying that, he says : “ The great office of Lord President so far as this particular case was concerned, he fell vacant, the only high office on the Scots saw no reason to suppose that what the learned Bench (except, perhaps, the Lord Justicejudge said was not well founded. Evidently Clerkship, which, however, carries no special basing his enquiry upon the amusing details of prestige), and one which unites in itself the a recent Sheriff Court case, Mr Macquisten has functions of the English Lord Chancellor and asked the Secretary for Scotland whether he Lord Chief Justice. It would be interesting was aware that fishery cruisers were only per- to hear the comments of Braxfield and Inglis, mitted to use blank cartridge to fire upon to name only two among the great men who poaching trawlers, who cover up their marks have held the Justice-Clerkship, on the daring and steam away, and whether he would instruct scribe who ventured to assert that their the fishery cruisers to fire charged cartridge position carried no special prestige. In a recent upon such trawlers, and cause them to heave book of reminiscences, the same office is treated to and be conclusively identified and brought even more disrespectfully, Lord Coleridge,
. to justice. The Secretary for Scotland has who in the dual rôle of distinguished judge promised to consider the question of securing and eminent scholar should surely know identification in this class of case.
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. Again, comment appeared recently in an English law paper : would be valuable. "He had chambers, like all other advocates, The Dail Eireann, on the initiative of the in the stately Athenian precincts of the “ New Free State Government, has abolished, in Town,' crossed over by Princes Street and Southern Ireland, the limited right of divorce 'the Mound' every morning to the Hall of hitherto open to Irish nationals. The Irish Parliament House just beyond the picturesque law Courts have never enjoyed power to grant vale which bisects Edinburgh in two, fought decrees of divorce a vinculo matrimonii. Their his cases in the courts, and played golf in the power was restricted to granting decrees of late afternoon upon the Meadows' just judicial separation a mensa et thoro, and to half a mile away, as five generations of Scots declarations of nullity of marriage on grounds advocates have done before and since." We existing at the date of the contract. But have made enquiries, but are informed that Parliament had the right to grant divorce to the Bar Foursomes are not to take place in the such persons as had the inclination and the Meadows this year. But, besides golf on that means to promote a private Bill for divorce hallowed spot, the advocate is a highly in the House of Lords. This power passed, privileged creature, allowed actually to enjoy under the Treaty, to the Free State Parliament, himself amid the austere gloom of Edinburgh which, acting it is said under clerical pressure, society. "Among the bourgeoisie proper, has decided to abolish it. The consequences whether haute or petite, the merchants, pro- of this action may be serious, but they are fessional
men, and tradesmen, certain largely political and do not concern us here, Puritanical and Whig gloom of spirit renders save in one respect. It is said that Irishmen all approach towards English enjoyment of anxious to obtain divorce will resort to Scotleisure, at theatre and dance and game, almost land, and one lively journalist has already a forbidden thing. . But the Scots Bar looked into the future and dubbed Edinburgh has always been to some extent a privileged a Scottish Reno." It is hoped that no one body in Scotland, permitted to enjoy in its will be induced to join the Bar by the prospects moments of relaxation a certain degree of of practice thus attractively set forth. Opinion revelry not sanctioned in others. A on divorce in Ireland being what it still is, no certain alternation of austere decorum in the great number of injured spouses is likely to
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 Meanwhile the administratrices approached religious sentiment, not many Irishmen, from me and asked me to hear the dispute; and, among the very limited class wealthy enough being unaware that they had begun Chancery to pursue such a means of escape, would proceedings, I issued notices of hearing to them, willingly exile themselves on our shores for the the Post Office, and the alleged donee in the sole purpose of securing divorce.
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
the case if both parties consented and agreed ADMINISTRATRICES DEPOSITOR-RE
to abide by the decision of the High Court. FUSAL OF POSTMASTER-GENERAL TO PAY
The administratrices did not consent, and at DEPOSITS OWING TO CLAIM BY AN ALLEGED
the hearing an objection to the jurisdiction was DONEE MORTIS CAUSA-ALLEGED DONATIO
raised by counsel for the donee. I did not MORTIS CAUSA-EVIDENCE-EXPECTATION
accept his arguments; but as the Chancery OF DEATH.
proceedings had been begun by the adminis
tratrices and not by the donee, I told the Edward Hiatt. Post Office Savings Bank, administratrices that if they wanted to come
£369, 10s. Hearings, 31st March, 30th before me they must discontinue those proAugust ; Award, 1st September 1924. ceedings, as they could not proceed before two
Courts at the same time. I quite understood The written judgment of the Chief Registrar that, if they discontinued, the matter would was as follows:
come before me without any further question In this case the jurisdiction of the Registrar on the part of the donee. to hear the dispute is questioned in peculiar On 1ōth June 1920 the Chancery proceedings circumstances.
were dismissed, and the administratrices subThe depositor died unmarried and intestate sequently paid the taxed costs. on 27th November 1918, and administration to On 27th July the solicitors for the adminishis estate was granted out of the Principal tratrices referred the matter to me, and on 9th Probate Registry on 14th February 1919 to August they informed me that the donee had Kate Maud Wynn and Ada Caroline Jones, his begun a fresh action in the Chancery Division. lawful nieces and two of his next-of-kin. The writ was, in fact, issued on 6th August.
On 28th January 1919 the administratrices I told them that, in my opinion, that did not informed the Post Office of his death, and stated make any difference. On 16th August I issued that the deposit-book was held by a Mrs notices of hearing for 31st August to the Butfoy. On 21st March 1919 the solicitors for administratrices, the Post Office, and the the administratrices applied to the Post Office alleged donee. On 18th August the donee's for payment, and stated that Mrs Butfoy held solicitors stated that they had begun proceedthe book and claimed the deposits as a donatio ings in Chancery, that they were advised by mortis causa, and that if the Post Office would counsel that the Chancery Division was the not pay without production of the book they proper tribunal, and that they proposed to proposed to take proceedings. On 25th March appear by counsel at the hearing. I replied on 1919 the Post Office told them that the dispute 20th August that I would hear any submission ought to be referred to the Registrar. The they had to make at the hearing as to the jurissolicitors then appear to have consulted counsel, diction, but that, if I decided I had jurisdiction, who advised them that the Registrar could not I should proceed to hear and determine the deal with the matter. They then began pro- dispute.
They then began pro- dispute. I have now had the advantage of ceedings in Chancery against the alleged donee. hearing counsel's arguments and do not agree
On ist March the solicitors for the alleged with them; but as the point is of great imdonee, whose real name was given as Maude portance and has not been argued before me Amelia Sayers, informed the Post Office that previously, nor, so far as I know, before my she claimed as a donee mortis causa, and asked predecessors, I have thought it better, after the Post Office not to hand over the deposits giving judgment summarily against the donee till a decision was obtained. On 25th March 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.
which are practically identical in terms with Counsel rested his main contention on the the sections set out above. construction of the sections, and did not cite The jurisdiction conferred on the barrister any authority in support. As a matter of fact by those Acts was transferred to the Registrar there is none. He also contended that the order by the Savings Bank (Barrister) Act, 1876 of 10th June 1920, dismissing the Chancery (39 & 40 Vict. cap. 52), section 2. proceedings, made the matter res judicata. I may add that, in fact, the jurisdiction has But if I am right in holding that the juris- existed since 1829, when it was first conferred diction of the High Court is ousted, this order by 9 Geo. IV. cap. 92, section 45. was made coram non judice and can have no This jurisdiction, which has been exercised such effect; and, moreover, the alleged donee for over ninety years, has never been successhas since begun new Chancery proceedings, so fully disputed; and, in my opinion, the authorithat obviously the first order did not conclude ties shew that the Registrar has exclusive the matter.
jurisdiction in such a dispute as the present The jurisdiction of the Registrar in Post dispute, ousting the jurisdiction of the High Office Savings Bank cases is conferred by the Court and of every other Court. Savings Bank Act, 1844 (7 & 8 Vict. There is no English decision dealing with such cap. 83), sections 14 and 15, which are as a dispute as the present, where the Postmasterfollows :
General or the trustees have declined to pay 14.
If any dispute shall arise between the deposits to a depositor or his administrator, or trustees and managers of any savings bank and any
a person claiming to be entitled to the deposits, individual depositor therein, or any executor, ad on the ground that there is another party who ministrator, next-of-kin, or creditor, or assignee of claims them, and to whom also the Postmasterdepositor, who may become bankrupt or insolvent, General or the trustees' have also declined to or any person claiming to be such executor, adminis- pay the deposits on the ground of the existence trator, next-of-kin, creditor, or assignee, or to be of the other claim; but there is a Scottish entitled to any money deposited in such savings decision which is directly in point, and, to my bank, then, and in every such case, the matter in mind, a Scottish decision must be regarded as dispute shall be referred in writing to the barristerat-law appointed under the said recited Acts, who equally binding on the Registrar where, as shall have power to proceed ex parte on notice in here, he exercises jurisdiction in both countries
It would writing to the said trustees or managers left or sent under a statute applying to both. by the said barrister to the office of the said institu- be intolerable if the Registrar exercised juristion; and whatever award, order, or determination diction in certain cases in Scotland under a shall be made by the said barrister shall be binding statute and declined to exercise jurisdiction in and conclusive on all parties, and shall be final to England in the same cases under the same statute, all intents and purposes without any appeal; and particularly as by section 3 (1) of the Friendly no submission to, or award, order, or determination Societies Act, 1896, the Assistant-Registrar for of the said barrister shall be subject or liable to or Scotland is subordinate to the Chief Registrar, charged with any stamp duty whatever.
15. On any such reference it shall be lawful and by section 2 of the Savings Bank (Barrister) for the said barrister, and he is hereby authorised to Act, 1876, he is to exercise his powers “subject inspect any book or books belonging to the said to the direction of the Chief Registrar.” The institution relating to the matter in dispute, and to case is Lewis v. Paulton (14 S.L.T. 818), also administer an oath to any witness appearing before reported in the “Chief Registrar's Report for him, or to take the affirmation in cases where affirma- | 1907,” Part A, p. 106, and the decision was that tion is allowed by law instead of oath; and if upon of Lord Guthrie, one of the most eminent of such oath or affirmation any person making the same modern Scottish judges. The parties were the shall wilfully and corruptly give any false evidence, executrix of a depositor, persons claiming as every person so offending shall be deemed and taken to be guilty of perjury, and shall be prosecuted and creditors, the Assistant-Registrar for Scotland, punished accordingly.
and the Lord Advocate representing the
Postmaster-General, so that the matter was This Act originally related to trustee savings fully argued, not only by the parties concerned, banks, but was repealed by the Trustee Savings but by the officials who were interested. The Banks Act, 1863, section 1, and Schedule .. action was for a suspension and interdict Its provisions, however, were preserved and against proceedings taken or threatened by the applied for the purpose of the Post Office creditors before the Assistant-Registrar to Savings Bank by the Post Office Savings determine whether deposits were payable to Bank Act, 1861 (24 & 25 Vict. cap. 14), the executrix or to the creditors, and the section 14.
decision goes even beyond the present case, The jurisdiction in trustee savings bank cases because the claim was one by creditors, which is conferred by the Trustee Savings Banks Act, 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.
both parties to refer the dispute to arbitration, if His judgment was as follows:
they both agreed upon it, without the intervention
of the statute. In order, therefore, to give these At the resent moment the Postmaster-General words of the statute any force operation, the word is in the position of refusing to pay the sum deposited shall must be construed as obligatory, that is, with him at Campbeltown to either of the parties that the matter in dispute shall of necessity be claiming it, namely, the complainer and the leading referred to arbitration and not be determined in respondents. In these circumstances is there a any of the Courts of Westminster Hall. But, looking dispute between him and “ a person claiming to be at the object and intention of the Legislature, we entitled to money deposited in a savings bank” in think it clear that the remedy by action is taken the words of the 1863 Act read short, or in the away and that by arbitration substituted in its words of the 1876 Act," a person claiming through place. These institutions were intended to compreor under a depositor ? I am of opinion that there hend a very large number of depositors, chiefly from is, and that the provisions of the statutes compelling the lower walks of life ; many of them contributing arbitration apply.
very small sums, and claiming very small profits by The complainer maintains that the statutes only the addition of interest. On the other hand, the apply where the Postmaster-General is the proper trustees and managers are uncertain in point of contradictor, and that they do not apply to the number. To allow, therefore, actions at law to be present case where the Postmaster-General has no maintainable by each depositor against the trustees interest in the merits of the dispute, these being at upon the occasion of every dispute with the instituissue only between the two .claimants to the fund tion, either as to the amount of the balance due or inter se.
He seeks to limit the application of the the interest claimed by him, would be, in effect, to statutes to such cases as questions about the exact cause the ruin both of the depositors aqid the instituamount of principal or interest due to the depositor, tion, by casting the costs of an action in the superior or a person claiming under the depositor. I do not Courts at Westminster upon the losing party. No find this limitation in the statutory words, and to person would fill the gratuitous office of a trustee or read it in would, I think, be contrary to the obvious a manager if he was exposed to the hazard of suits intention of the Legislature.
of law, at once so expensive and so numerous ; no The complainer founded on the way in which the depositor would be able to enforce his just rights, if question arose among the parties, and argued that he must sue in the superior Courts, at the hazard of there had been no dispute between her and the being defeated with heavy costs if he sued more of the Postmaster-General, because she had never claimed trustees than he might be able to prove liable, or the money directly from him. I do not think this subject to have his suit abated if he sued too few. is material. The test seems to me to be : Suppose It is evident, therefore, that the Legislature contemthe complainer had applied to the Post Office for plated the cheap, simple, speedy, and equitable payment, she would have been met by a refusal. adjustment of all disputes by a reference in the mode Suppose she had then raised an act for payment; pointed out in the Act, instead a more expensive, the Post Office would have pled the statutory arbi- dilatory, and uncertain remedy by action at law; tration, and I do not see how it could have been and we think we should defeat that very serviceable denied that a dispute would then have existed object-serviceable alike to be depositors and to the between the Postmaster-General on the one hand, institution-unless we construe the words used as and the complainer as a person claiming through or words which import an obligation to refer, and which under a depositor on the other hand. It does not take away the right to sue in the superior Courts. seem to me to make any difference that in the arbitration the Postmaster-General (the other
This decision has heen followed or cited with claimant having come forward) will stand aside and approval in a large number of English cases : leave the claimants to fight out the matter before the R. v. Mildenhall Savings Bank, 6 A. & E. arbiter.
952 at p. 957, though it was stated there that
Parke B., when at the Bar, had advised to the This decision appears to me to be amply contrary; Morrison v. Glover, 4 Ex. 430 at supported by the other cases in which the
pp. 442, 444, where Parke B. was a member of jurisdiction has been dealt with. The leading case is Crisp v. Bunbury (8 v. White, 17 Q.B. 995 at pp. 1015, 1016; Cal
the Court and agreed in the judgment; Reeves
. Bing. 394), decided under 9 Geo. IV, cap. 92. laghan v. Dolwin, L.R., 4 C.P. 288 at p. 294 ;
. The headnote is : “ “Since 9 Geo. IV. cap. 92 Prentice v. London, L.R., 10 C.P. 679 at p.
. an action does not lie against the trustees of a
686; Huckle v. Wilson, 2 C.P.D. 410 at p.
414 ; savings bank. In case of disputes, the only Municipal Permanent Building Society v. Kent, mode of proceeding is by arbitration.” The 9 A.C. 260 at p. 275; and Joseph Crosfield question at issue was whether Crisp was entitled to be paid a certain deposit or not, and  2 Ch. 123 at pp. 135, 149.
& Sons Ltd. v. Manchester Ship Canal Co., the action was an action of assumpsit against
I must refer for the sake of completeness to the trustees, for money had and received. three other reported cases under 9 Geo. IV. Tindal C.J. in his judgment said, at p. 400 :
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 a question as this, whether a savings bank or
a claim made to deposits by its depositor should suffer from a forgery minors. The deposits had been withdrawn, and should be withdrawn from the cognisance of the it was a question whether the person who with-ordinary Courts, so that apparently it is a drew them had authority to do so.
question which can never be authoritatively In R. v. Witham Savings Bank (1 A. & E. determined; still, that appears to be the effect 321) a mandamus to the trustees to appoint of the statute, the terms of which are too plain an arbitrator was refused because it was not to admit of question. ... I think the policy clear whether the applicants, who purported of the Act is to protect savings banks and their to represent the depositors in question, did, in depositors from the cost of ordinary litigation, fact, represent them.
and to provide that disputes between them In R. v. Northwich Savings Bank (9 A. & E. should not come into Court at all.” 729) a mandamus to the trustees to appoint R. (Cochrane) v. Littledale (10 L.R. 1, 78) and, an arbitrator was refused because it was clear on appeal (12 L.R. 1, 97), concerned a claim an arbitration could have no result, inasmuch by the administrator of a deceased depositor as the period during which, under the rules, the against the Newry Savings Bank for payment deposit could be claimed had expired.
of certain deposits made by the depositor in There is only one other English case, so far as fictitious names. The dispute was referred to I know, dealing with the matter, which is only the Assistant-Registrar for Ireland, and he, reported in the “Chief Registrar's Reports," for reasons which are not very plain, but Part A, for 1886, p. 100, and 1887, p. 70, under apparently because he regarded the whole of the title of Cardiff Savings Bank v. Aberdare the transactions as fraudulent and outside his District of Oddfellows, though its real title powers, declined to hear the dispute. The appears to have been R. v. Registrar of Friendly administrator applied for a mandamus. The Societies, as it was an application for a writ of Court of first instance had no doubt that prohibition against the Registrar to restrain the claim made by the personal representative him from hearing a dispute arising out of the of the depositor to be entitled to the money so failure of the Cardiff Savings Bank, namely, a deposited, which was controverted by the claim by depositors for payment in full in spite trustees and managers of the bank, a dispute of a compromise into which they had entered arose within the meaning of section 48, which the with the trustees. The writ was refused and the Assistant-Registrar had jurisdiction to entertrustees appealed. The appeal was dismissed, tain,” but they refused the writ because the Stephen J. saying: “If there was a dispute cause of action arose ex turpi causa and because and if there was a depositor, then it was ad- it would be fruitless, as the Assistant-Registrar mitted that the matter must go before the could only come to the same conclusion as the Registrar of Friendly Societies. The will Court. The appeal was dismissed on the same of the Legislature is declared by the 48th section grounds. 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.' Post Office Savings Banks," p. 213, was an Charles J. said: “Whether there is jurisdiction action of debt by a depositor against one of the or not depends on whether there is a dispute trustees of the Tralee Savings Bank on an award between the trustees or the managers of the made by the Registrar. It was an award savings bank and any individual depositor against one of the trustees personally, and the therein or any person claiming to be entitled award was set aside, but only because the to any money deposited in the savings bank. Registrar had not complied with the statutory The affidavits prove satisfactorily to my opinion requirements.
Blackburne C.J. said in the that there is a dispute.'
course of his judgment, dealing with the conThe other authorities are one case in Scotland tention that the jurisdiction was limited to and five in Ireland.
claims against the bank as an institution and In Melrose v. Adam (24 R. 483) tbere was did not extend to the defaults or personal à dispute whether the depositor should be responsibility of the trustees : credited with a certain amount, which had been withdrawn by a forged order, and the depositor deemed and intended to be adequate to enable the
To me it seems clear that its provisions were proceeded by action. The action was dis
arbitrator in all cases of dispute between depositors, missed on the ground that the Assistant- and those who had acquired their rights, and the Registrar for Scotland had exclusive jurisdic- trustees, to do complete justice in the same manner tion over the matter. Lord Kincairney said : and to the same extent as might and could have " It may seem a little startling that so general been done by the ordinary tribunals of the land if