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cape colony

July 18, 1885. Kimberley or in the Orange Free State. It is ceive the warrant issued by his official superior proper that that question should yet be tried, as a valid warrant in all respects, and his sole but there is fair evidence for averring, as the duty is to consider whether the evidence laid beprosecutor is doing, that it was committed in fore him is such as will justify him in committing Kimberley. If the prisoner, desiring to get him the prisoner for trial upon the specified charge. away, gets him in any manner out of Kimberley, Now, the views I have expressed enter to a cerand is seen to administer violence to him across tain extent into the question of jurisdiction. It the border, and the evidence stops there, and is is essential to the validity of the warrant that the only taken up again by the body being found offence charged is an offence supposed to be at a place ou the Kimberley side of the committed in the Queen's dominions, otherwise borders, then there is a return to the juris- the Secretary of State would have no jurisdicdiction where the proceedings commenced. tion. But this need not be expressed in the warIf Kimberley were the county of Roxburgh, rant, and in my opinion the warrant is to be and Orange Free State were England, and assumed to be in proper form. But if it apwe had the

removed in this pears on the face of the proceedings—I mean on case into England, maltreated there, and his the depositions and oral evidence- that the body afterwards found in a well in Roxburgh, offence was not committed within Her Majesty's no magistrate would hesitate to convict as for an dominions, then I apprehend it will be the duty offence committed in Roxburgh. Applying here of the magistrate to refuse to grant a warrant of the consideration which the Sheriff is entitled commitment for trial. But I am bound to say by the statute to do, I cannot doubt that he that considering the evidence for the purpose of acted rightly in grantiug the warrant before us. satisfying myself whether the offence was or was

There remains an appeal to the Secretary of not committed within the Queen's territory, I State, since if we hold that the Sheriff is right, cannot accept the view that a crime was not he must report to the Secretary of State, and it committed within the Cape Colony. On the remains with him to say if he will grant warrant contrary, I think that there is evidence that the to transmit the prisoner. It is not unimportant crime was planned in Kimberley and begun to that the principle of our judgment be declared. be carried out there. I think that the deposiWe have referred to the evidence as if it were tions point to this conclusion, that from the time precognition, not as evidence concluding the the unfortunate man entered the car until he was guilt of the prisoner-his case may result in an last seen he never was a free agent. If it were acquittal—but it is such evidence as any magis- necessary, I should be prepared to support the trate might proceed upon in committing a pri- commitment on the words of the 21st section of soner for trial.

the statute, which introduces our doctrine as to

crimen continuum. I think that at common law LORD MÓLAREN-I entirely agree with what as well as upon the terms of that section there your Lordships have said as to the Sheriff's was evidence sufficient to warrant the Sheriff in judgment upon the evidence, and do not wish to holding that the crime which was begun and to a make any observations upon that matter. I certain extent carried out in Kimberley, and think the Sheriff has taken a reasonable view of apparently completed at Kamfers Dam, was thus the evidence, and that being so, it would not be committed in the Queen's dominions. according to the practice of this Court to interfere. The statute makes the Sheriff or magistrate

The Court refused the bill. the judge of the sufficiency of the evidence, and

Counsel for Carlin Mackintosh - Guthrie. he is to consider it in the same light as in an

Agents-John Clerk Brodie & Sons, W.S. application to commit a prisoner in order to trial for a crime committed witbip the territory.

Counsel for Colonial Government-Sol.-Gen. Upon the legal aspects of the case there are Robertson-Omond. Agent-G. M. Wood, S.S.C. two points upon which I desire to say a few words—the first relating to the form of the warrapt, the second to the jurisdiction. Now, it appears to me, on a consideration of the statute in

Monday, August 17. all its clauses, that it was not intended that the Sheriff or magistrate should form or express an opinion on the validity of a warrant which is (Before Lord Justice-General, Lord Young, and sent to him for the purpose of determining

Lord Adam.) whether the prisoner ought to be returned to the ROBERTSONS V.CAIRD (P.-F. OF KINCARDINEcountry from which he is a fugitive. It comes to

SHIRE). the Sheriff as a Secretary of State's warrant, because it is the Secretary of State's indorsation Justiciary Cases-Indictment-Conviction- Alterwhich gives currency to the warrant in this

native Charge. country; and it comes to the Sheriff through

Where a libel was expressed alternatively, that official channel for the very purpose, as I

but there was no proper inconsistency beconceive, of relieving the Sheriff from the respon

tween the charges, but only a second narrasibility of considering the validity of the docu

tive of the same facts in an alternative form, ment, which he may well be incompetent to

the Court refused to suspend a sentence proadjudicate upon. If there is any good objection ceeding on a verdict of guilty as libelled, on to the form of the warrant it will no doubt be the ground of general conviction following on considered in limine by the Secretary of State,

an alternative charge. who has facilities for inquiry as to the laws and Fraudulent Bankruptcy-Debtors (Scotland) Act usages of colonial governments which the Sheriff 1880 (43 and 44 Vict. c. 34), sec. 13—Debtor" does not possess.

The Sheriff, I take it, is to re- - Art and Part.

v. Caird

, 18

A person who was neither a debtor under sequestration or cessio nor insolvent, having been convicted of the offence specified by section 13 of the Debtors Act 1880, on the ground that he had assisted such a debtor, of whose position and fraudulent design he had full knowledge, to conceal his effects from his creditors, the Court suspended the conviction, on the ground that only a debtor in the sense of the section

could competently be convicted under it. David Robertson, sometime tenant of the farm of Roughbog, on the estate of Durris, Kincardinesbire, and his brother Robert Robertson, tenant of Middleton of Rottearns, Perthshire, were charged before the Sheriff and a jury at Stonehaven with wicked and “fraudulent concealment and putting away or disposing of his property or effects by a person insolvent, or on the eve of it, in contemplation of bankruptcy, for the purpose of defrauding his creditors," as also, under the Debtors (Scotland) Act 1880, sec. 13, which provides by section 13-" The debtor in a process of sequestration or cessio shall be deemed guilty of a crime and offence, and on conviction before the Court of Justiciary or before the Sheriff and a jury shall be liable to be imprisoned for any time not exceeding two years, or by the Sheriff without a jury for any time not exceeding sixty days, with or without hard labour : (A) In each of the cases following, unless he proves to the satisfaction of the Court that he had no intent to defraud- that is to say, . (3) If after the presentation of the petition for sequestration or cessio, or within four months next before such presentation, he conceals any part of his property, or conceals, destroys, or mutilates, or is privy to the concealment, destruction, or mutilation of any book, document, paper, or writing relating to his property or affairs. (B) In each of the cases following (5) If, being insolvent and with intent to defraud his creditors, or any of them, he makes or causes to be made any gift, delivery, or transfer of, or any charge on or affecting, his property."

The libel set forth that the accused were both and each or one or other of them guilty of the common law crime above stated, and of the statutory crimes and offences constituted by the sub-sections of the Act quoted, or one or other of the said statutory crimes and offences, actors or actor, or art and part, in so far as David Robertson having been tenant of Roughbog, and having failed to pay any of the rent for crop and year 1884, and having become indebted to the landlord therefor, and the landlord having applied for and obtained sequestration for the rent of that year under the right of hypothec, and David Robertson having afterwards (in Feb. 1885) been sequestrated on his own petition, and a trustee appointed, and “the said David Robertson having been insolvent for at least three months or thereby immediately prior to the said 16th day of February 1885, or being then on the eve or in contemplation of bankruptcy, and he having formed a fraudulent design to conceal and put away from his creditors a large quantity or quantities of bis property or effects for the purpose of being appropriated to his own uses, and thus to defraud his creditors, or one or more of them, the said David Robertson, in prosecution of his said fraudulent design, and the said Robert

Robertson acting in concert with him, and in the knowledge of the said fraudulent design, and of the insolvency of the said David Robertson above libelled, did, both and each or one or other of them, on various or one or more occasions during the months of December 1884 and January and February 1885, the particular time or times being to the complainer unknown, and being within four months next before the presentation of the foresaid petition for sequestration of the estates of the said David Robertson, wickedly, fraudulently, and feloniously conceal and away put or dispose of, or did cause or procure to be concealed and put away or disposed of,” a quantity of farm stock and other effects, the property of David Robertson, and forming part of his effects, “by carrying off and conveying the same, or causing or procuring the same to be carried off or conveyed” from Roughbog to Middleton of Rottearns, “and all this, or part thereof, the said David Robertson and Robert Robertson did, the said David Robertson being in insolvent circumstances, or, on the eve or in contemplation of bankruptcy, for the purpose of concealing and putting away the said property and effects from the diligence of the creditors of the said David Robertson, that the same might be subject to bis disposal or control, and for the purpose of defrauding his lawful creditors ; or otherwise,”—bere followed an alternative charge that at the time above libelled David Robertson “did make, or cause to be made, delivery or transfer of” the same stock, &c., as was already enumerated, “the property of the said David Robertson, by then and there delivering or transferring, or causing the same to be transferred or delivered, to the said Robert Robertson, and tbis, or part thereof, the said David Robertson did at a time when he was insolvent, and with intent to defraud his creditors, or one or more of them, the said Robert Robertson well knowing him to be so, by concealing or endeavouring to conceal the fact that the said property and effects so transferred or delivered formed part of the estates of the said David Robertson."

At the first diet the libel was found relevant, and at the second diet the case went to trial, when the jury unanimously found both panels “ guilty as libelled," and the Sheriff (DOVE WILSON) passed sentence of six months'imprison


The present process of suspension and liberation

was then brought.

The grounds of suspension as ultimately argued to the Court were- -(1) That Robert Robertson, not being a person to whom the Debtors Act applied, could not competently be convicted of the statutory charge, and that the general verdict "guilty as libelled” was therefore bad. (2) That the minor proposition of the indictment was alternative, and the conviction was general, and therefore that the conviction was bad.

Argued for suspenders — (1) The statutory charges could not apply to Robert Robertson. He was not a “debtor," and to a debtor only did the statute apply. In order to be obnoxious to it the accused must be a debtor in a process of sequestration or cessio. Robert Robertson was neither, and it was not even averred that he was. No statutory crime was therefore averred against him, and the conviction being “guilty as libelled" inferred that he had committed the statutory


crime, and therefore it could not stand. (2) The minor proposition was alternative ; it charged “ fraudulently concealing, away putting, or disposing of” property " or otherwise" "making or causing to be made delivery or transfer of” pro. perty with intent to defraud creditors. The object of the framer of the libel was to charge alternatively the offence in A 3 and that in B 5. But the verdict was general, and the conviction was therefore bad.

Argued for respondent-(1)The statutory charge applied to Robert, for though not debtor or insolvent, he was rightly charged and convicted of being art and part in his brother's crime. A crime may always be committed by accession, the only and well-known exceptions being treason and concealment of pregnancy. The latter was an exception only because the disclosures neces. sary to accession elided the charge of conceal. ing pregnancy during its whole course. The success of Robert Robertson's argument would lead to this, that where there had been such a conspiracy as this case disclosed the debtor and his accomplice must be tried on separate libels. (2) The second objection would only be good if the alternative was truly an alternative, but it was really not an alternative charge, but only a redundant and alternative way of stating the modus. The thing was the same, and it was no more a proper alternative than would be “six, or otherwise half-a-dozen.”

At advising

LORD JUSTICE-GENERAL--The indictment before us contains three charges in the major proposition. The first is a common law charge of “wicked and fraudulent concealment and putting away or disposing of his property or effects by any person insolvent or on the eve or in contemplation of bankruptcy, for the purpose of defrauding his creditors;" the second is a charge under section 13 of the Debtors (Scotland) Act 1880, sub-section A, No 3; and the third is a charge under sub-section B (5) of the same section. The verdict against both parties is “guilty as libelled," and that means that both and each of the panels are guilty of all three offences charged.

As regards the statutory charge, the first provision with which we have to do is, that "the debtor in a process of sequestration or cessioshall be deemed guilty of a crime and offence “if [A(3)] after the presentation of the petition for sequestration or cessio, or within four months next before such presentation, he conceals any part of his property.”

The other (B 5) is that he shall be guilty of a crime and offence if, being insolvent, and with intent to defraud his creditors, or any of them, he makes or causes to be made any gift, delivery, or transfer of or any charge ou or affecting his property.

It seems, then, that no one can commit the statutory offence who is not a “debtor" in the meaning of section 13—that is, in the case of A(3), a person who has been sequestrated or against whom a decree of cessio has been pronounced, and in the case of B (5) a person insolvent.

Now, Robert Robertson was not in the situation conteinplated by either of these definitions. He was not made bankrupt, nor sequestrated, or under decree of cessio, nor was he insolvent; and that being so, it is plain that the conviction of Robert under the statutory charge is bad,

and as the verdict cannot be split, that disposes of the whole case as against Robert. I give no opinion as to the relevancy of the statutory charge as it is here stated. Against it something appears capable of being said. As to Robert, then, decree of suspension and liberation ought to be granted.

The case of David is in a totally different position. He was bankrupt and a debtor in the sense of section 13, and may be convicted of the common law offence charged, and also under both statutory charges. The difficulty in his case is that there is introduced in the minor proposition of the indictment an alternative. If it is a proper alternative—that is, if the two things with which he is charged are properly inconsistent-the objection is good, because then we have an alternative charge and a general conviction, but I think that so far from being inconsistent then they are substantially the same. The part of the minor which precedes the words - or otherwise". consists of a statement that the accused removed from his own to his brother's farm a large part of the stock to conceal it from his creditors, and what follows" or otherwise” is just a narrative of the same thing in other words. Now, that species facti, thus doubly described, satisfies, as was admitted, both sub-section A (3) and sub-section B (5). I therefore am for holding that the conviction of David is good.

LORD YOUNG—I concur in all respects.
LORD ADAM-I also concur.

As regards the case of Robert Robertson the Court suspended the sentence complained of, and granted liberation, finding no expenses due. As regarded the case of David, the Court refused the bill of suspension and liberation.

Counsel for Suspenders—A. J. Young. Agent -D. Roberts, S.S.C.

Counsel for Procurator-Fiscal-Rankine, A.D. Agent-Crown Agent.



Friday, July 24. (Before Earl of Selborne, Lords Blackburn, Wat

son, and Fitzgerald.) ORR EWING AND OTHERS V. ORR EWING'S

(Ante, vol. xxi, p. 423, 11 R. 600—29th

February 1884).
Jurisdiction-Foreign-Executor - Trust, Trust

Funds situated partly in England and partly in Scotland— Confirmation and Probate Act 1858 (21 and 22 Vict. c. 56), sec. 9 and 12Treaty of Union 1706 (6 Anne, c. 11), article 19.

A domiciled Scotsman died leaving a trustdisposition and settlement executed in Scottish form disposing of his personal property, which was of great amount, and was situated in Scotland, except about one-sixteenth which was in England. He appointed six trustees and executors, all Scotsmen, and four of

v Orr Ewing's


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whom were domiciled in Scotland and two in England. None of the purposes of the trust fell to be performed out of Scotland. The trustees gave up an inventory and obtained from the Commissary of the county in which the deceased died doiniciled decree of confirmation under sec. 9 of the Confirmation and Probate Act 1858, and had this confirmation sealed with the seal of the English Court of Probate under section 12 of the same Act. After the English assets, except a very small part thereof, bad been transmitted to Scotland, an administration suit was commenced in the Chancery Division of the High Court of Justice in England against the trustees (three of whom were cited in England and three in Scotland) at the instance of an infant residing in England who was one of the residuary legatees, suing by his next friend.

The trustees appeared and objected to the estate being administered in England, but ultimately the High Court of Justice and the House of Lords on appeal decided that an administration order should be made, and that complete accounts and inquiries should be taken and made in England. Thereafter the Court of Session, in an action at the instance of the residuary legatees (other than the infant plaintiff) against the trustees, granted a decree of declarator that the trustees were bound to administer the estate according to the law of Scotland, and subject to the jurisdiction of the Scottish Courts alone, and were not entitled to place the funds in the hands of or render accounts to any Court furth of Scotland, and also sequestrated the estate and appointed a judicial factor suspending the action of the trustees in the meantime, and interdicted the trustees, until the estate should be fully vested in the judicial factor, removing the estate or any part thereof, or any writs belonging thereto, out of the jurisdiction of the Scottish Courts.

Held that the declaratory portion of the judgment ought to be reversed, because (1) the trust-disposition and settlement did not contemplate that the investment and administration of the estate must necessarily be in Scotland ;(2) while the succession to the estate of a person deceased must be according to the law of his domicile, the forum in which the rights resulting therefrom must be vindicated is not necessarily the Court of that domicile (the dictum of Lord Westbury to that effect in Enohin v. Wylie, 10 Clark, House of Lords Cases, 1, being disapproved); (3) the decisions of the Scottish Courts show that the Courts of Scotland will when necessary sustain their jurisdiction over the parties administering a foreign will when they are resident within Scotland, or the estate they are administering is within Scotland, though the Courts of Scotland will only exercise that jurisdiction when an accounting cannot be obtained in the more convenient forum ; (4) because the terms of Art. 19 of the Treaty of Union relied on in the Court of Session did not apply;(5) because the Confirmation and Probate Act 1858 relied on in the Court of Session has no bearing on a question of jurisdiction.

But (II.) held that the sequestration of the
trust- estate and appointment of a judicial
factor having been ordered by the Court of
Session in the exercise of its own independ-
ent jurisdiction unaffected by the decision
of the House of Lords in the English appeal,
and in order that the administration of the
estate should proceed in the proper and con-
venient forum, were right and ought to be

This Case is reported ante, vol. xxi., p. 423, and
11 R. 600, 29th February 1883.

On 27th May 1884 a petition was presented
in name of the trustees (defenders) to the First
Division praying the Court to grant authority to
petitioners to present a petition of appeal to the
House of Lords in common form against the
interlocutor of the Lord Ordinary and that of the
First Division of 29th March 1884, and subse-
quent interlocutors, granting warrant to the judi-
cial factor to take complete possession of the
trust-estate and books and papers thereof, and
granting warrant to messengers-at-arms to search
for and recover the same, and if necessary to open
shut and lockfast places.

It appeared and was admitted at the bar that the trustees in whose name the petition was presented were not themselves desirous to appeal, but that the appeal was to be brought and prosecuted in their name by the infant plaintiff in the English administration suit and his next friend. An extract from the judgment of a Judge of the Chancery Division giving the infant plaintiff's next friend liberty to prosecute the appeal in the trustees' names on a proper indemnity for costs was produced.

The Court postponed consideration of the petition hoc statu, to enable Malcolm Hart Orr Ewing (the infant plaintiff) and his next friend, if so advised, to sist themselves as defenders in the Scottish action, being of opinion that leave to appeal ought not be granted to a person not a party to an action merely on the ground that he had obtained permission of a party to the action to use his name (see 12 R. 343).

Malcolm Hart Orr Ewing and his next friend did not sist themselves, but appealed without leave.

At delivering judgment

EARL OF SELBORNE—My Lords, the appellants in this case are trustees under the will of John Orr Ewing, a testator who died on the 15th April 1878 domiciled in Scotland, and leaving a very large personal estate, estimated at more than £460,000, of which all but £25,000 was in Scot. land. The respondents are four of the residuary legatees under the will. When the Scottish suit, out of which this appeal arises, and in which the respondents are pursuers and the appellants are defenders, was commenced (5th July 1883) another suit was already pending in England in which Malcolm Hart Orr Ewing, another of the residuary legatees (an infant suing by his next friend), was plaintiff and the appellants were defendants, and in which the respondents (though not defendants on the record) had for the protection of their own interests intervened. A decree had been made in that suit for a general administration of the testator's estate under the direction of the Chancery Division of the English High Court of Justice by the Court

Orr Ewing's


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of Appeal on 29th November 1882. The infant plaintiff was resident in England, and it had been found, upon inquiry by the English Court, that the prosecution of that suit would be for his benefit. Of the defendants, the trustees, two were permanently and one occasionally resident in England. These three were all served with the process of the English Court wbile personally within its jurisdiction. The other three ordinarily resided in Scotland, and were there served according to the rules of the procedure of the English Court. They appeared to, and joined in defending the suit without raising any question as to the propriety of that service.

From the English decree of 29th November 1882 there was an appeal by the defendants, the trustees (now also appellants here), to your Lord. ships' House. They submitted that the English Court had not jurisdiction in the case, and that if there was jurisdiction it ought not to have been exercised. Your Lordships were of a contrary opinion, and dismissed the appeal; and it cannot in my opinion admit of any doubt that your Lordships'adjudication on that appeal is now absolutely conclusive upon both the points so raised. Nor is it correct to represent the question of jurisdiction then determined as depending upon the mere procedure and practice of the English Court without reference to any general principles; though the other question, whether the jurisdiction had been rightly exercised, undoubtedly did

I will not repeat what was then said, though to all that I myself said, after carefully reconsidering it, I adhere. That decision turned upon the doctrine of trusts and upon the authority of a Court of Equity to act in personam against trustees personally present within and subject to its jurisdiction, whatever may be the situ8 of the subject-matter of the trust or the domicile of any deceased person by whom (whether by deed inter vivos or by testamentary instrument) that trust might have been created.

A decision of this House in an English case ought to be conclusive in Scotland as well as in England as to the questions of English law and English jurisdiction which it determined. It cannot of course conclude any question of Scottish law or as to the jurisdiction of any Scottish Court in Scotland. So far as it may proceed upon principles of general jurisprudence, it ought to have weight in Scotland, as a similar judgment of this House on a Scottish appeal ought to have weight in England. If, however, it can be shown that by any positive law of Scotland, or according to authorities baving the force of law in that country, a different view of the proper interpretation, extent, or application of those principles prevails there, the opinions on those subjects expressed by noble and learned Lords when giving judgment on an English appeal ought not to be held conclusive in Scotland. When a Scottish decision in apparent conflict with them is brought to the bar of this House, the first duty of your Lordships must, I conceive, be to ascertain whether there is any settled rule of Scottish law requiring or justifying that decision. If not, it may still be open to the House to reconsider the points raised in any new light which may be presented by the view of them taken in the cottish Court.

It is now proper for me to state the effect of

the principal interlocutor under appeal. The Inner House (recalling in form but only modifying in substance the interlocutor of the Lord Ordinary) has, in the first place, adopted and affirmed the declaratory conclusions of the summons, which I will read:-"It ought and should be found and declared, by decree of the Lords of our Council and Session, that by virtue of said trustdisposition and settlement and relative codicils, and of said testament-testamentar, the defenders are bound, as trustees and executors foresaid, to uplift, receive, administer, and dispose of the whole estate and effects of the said deceased John Orr Ewing, and to give effect to and carry out the purposes of his foresaid trust-disposition and settlement and relative codicils in Scotland, and according to the law of Scotland, and under the authority and subject to the jurisdiction of the Scottish Courts alone : And further, it ought and should be found and declared, by decree foresaid, that the defenders, as trustees and executors foresaid, are not entitled to place the said estate and effects under the control of the Chancery Division of the High Court of Justice in England, or to administer the same under the directions of the said High Court of Justice in England or any of the Divisions thereof, or of any other foreign Court or tribunal furth of Scotland, and having no jurisdiction in Scotland, or to place the said estates and effects beyond the control of the Scottish Court: And further, it ought and should be found and declared by decree foresaid that the defenders, as trustees and executors foresaid, are bound to render just count and reckoning for their intromissions with said estate and effects whenever the same shall be legally required in Scotland, and according to the law of Scotland, and under the authority and subject to the jurisdiction of the Scottish Courts alone; and that the said defenders are not bound nor entitled to render any accounts of the said estate and effects to the said High Court of Justice in England, or any of the Divisions thereof, or to any other foreign tribunal furth of Scotland, and having no jurisdiction in Scotland ; nor bound nor entitled to part with the custody of any of the title deeds, writs, or evidents of the said estate, or to deposit the same in the custody of any Court situated furth of Scotland and having no jurisdiction in Scotland, or to place the same beyond the jurisdiction or control of the Courts of Scotland.”

The Court has also granted an interdict which appears to me to depend partly, though not wholly, upon those conclusions. Beyond this it has exercised the unquestionable jurisdiction of the Court of Session over the parties and the subject of the suit by sequestrating the whole moveable estate of the testator (that part of it which was not in Scotland at the testator's death having been afterwards brought within their jurisdiction), and appointing a judicial factor to take possession of and administer it with all usual powers till the further orders of the Court, suspending also for the present, and till the further orders of the Court, all action on the part of the defenders, the trustees, in the administration and disposal of the estate.

The first question for consideration is, whether the decerniture in terms of the declaratory conclusions of the summons is or is not correct? That decerniture appears to me to be not only inconsistent with but contradictory to the



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