COMMITTEE.

HC Deb 09 July 1857 vol 146 cc1187-205

Order for Committee read.

House in Committee.

Clause 3 agreed to.

Clause 4.

MR. E. C. EGERTON

said, he rose to move, in line 5, after "property," to insert "or being entrusted with any property of any description for the purpose of performing, or causing to be performed, any work or labour upon or in respect of the same." His object in proposing this Amendment was to render persons liable to punishment, under the Bill, who fraudulently appropriated materials, which had been furnished to them for the purpose of being worked up into marketable goods. In the town of Macclesfield, which he had the honour to represent, a large quantity of raw silk was entrusted to persons called throwsters, and it frequently happened that it was disposed of in the manner he had mentioned. At present the only remedy in such a case was a civil action, and he thought it desirable to remove this anomaly.

MR. AYRTON

remarked, that he thought there were provisions in various Acts of Parliament under which such cases might be dealt with summarily.

MR. E. C. EGERTON

said, there was no Act applicable to the silk trade, though there was one, he believed, applicable to the hosiery trade. As regarded the former, many cases had been brought before the magistrates, who had expressed their regret that they had no jurisdiction.

MR. CHEETHAM

observed, that he also could bear out the statement that the law did not at present meet the case which had been mentioned.

MR. HADFIELD

said, he hoped the Attorney General would adopt the Amendment, for the sake of the town of Sheffield.

THE ATTORNEY GENERAL

had not the least objection to include the cases which had been mentioned, attempts having been made to prosecute parties for the offences referred to on several occasions and those attempts having failed. His fear was, that the words proposed, would do a good deal more than was contemplated, and on that point he thought there was great force in the remark of his hon. and learned Friend the Member for the Tower Hamlets (Mr. Ayrton). The words "being entrusted with any property of any description," though no doubt meant to apply to materials partially manufactured, would include common larcenies. If he gave a tailor cloth to make a coat, and if the tailor appropriated this cloth to his own use, the result of adopting the Amendment as it stood might be to exempt the tailor from the ordinary punishment of larceny. It would, perhaps, be better that the words "raw materials," for the word "property" in the Amendment. Not wishing, however, to retire from the promise which he had virtually given, he would suggest that the best course would be to postpone the Amendment till the bringing up of the Report, prior to which a happier and more efficacious form of words might be devised.

MR. PAGET

said, it appeared to him that the Amendment proposed by the Attorney General would not meet the requirements of the ease, inasmuch as wrought silk, which was one of the articles thus fraudulently appropriated, could not properly be called a "raw material."

MR. HASSARD

said, that he was equally anxious that muslin given out to be sprigged, as was commonly done in Ireland, should not be excluded from this Enactment.

MR. BAINES

remarked, that he thought that the words in this clause, coupled with those in the interpretation clause defining "property" to mean every description of personal property, would be amply sufficient to secure all the objects which hon. Members were anxious to obtain. If upon consideration it were found that this was not the case, words might be introduced upon the Report which would put the matter beyond doubt.

MR. E. C. EGERTON

said, that his own belief was that the words of the clause were quite sufficient, but in moving the Amendment he had yielded to a strong desire entertained by the manufacturers that this matter should be made the subject of a special clause. At present he would withdraw his Amendment, but if upon reflection and communication with those interested in manufactures ho found that the clause, as it stood, was not sufficient, he would avail himself of the offer made by his hon. and learned Friend the Attorney General, and would remind him of his promise to insert, on bringing up the Report, such, words as would meet their wishes.

MR. HADFIELD

remarked, that he was not at all satisfied that the clause would, as it stood, include these cases.

Amendment, by leave, withdrawn, clause agreed to, as was also Clause 5.

Clause 6. (Penalty for the keeping of fraudulent accounts).

MR. SPOONER

said, he wished to ask for an explanation of the words "otherwise than in payment of a just debt or demand."

THE ATTORNEY GENERAL

said, it had unfortunately been found in the case of certain companies that directors took sums of money out of the bank, without authority, in the guise of loans. The Bill therefore provided that if a, director received money from the bank or company, and did not enter it in the books, he would be liable to punishment for fraud. It was thought necessary, however, to exempt from the operation of the provision persons who should have taken the money in payment of a debt; and it was for the purpose of effecting that object that the words to which the hon. Gentleman referred had been introduced.

MR. SPOONER

said, he thought that if a director paid himself what was due to him from the company without entering the payment in the books, such a proceeding ought to be treated as a fraud. Otherwise the debt would still remain on the face of the books, and he might claim it again from the company.

THE ATTORNEY GENERAL

said, that the irregularity supposed by the hon. Gentleman, although, no doubt, very reprehensible, did not come within the same category as those fraudulent appropriations of the property of other persons against which this Bill was directed.

MR. AYRTON

observed, that the fraud in the hypothetical case put by the hon. Member would not be in omitting to enter the repayment, but in taking the money a second time.

Clause agreed to, as were also Clauses 7 and 8.

Clause 9. (Punishment for a misdemeanour under this Act).

MR. HADFIELD

remarked, that seven years' penal servitude was a very heavy punishment to inflict upon a trustee. Prudent men, as the law now stood, objected strongly to act as trustees; and care ought to be taken in legislating on such a subject not to deter honourable men from accepting such an office. If a stringent Act like this was adopted to punish fraudulent trustees, a countervailing measure ought, on the other hand, to be passed to protect honest trustees from the risks and losses to which they were constantly exposed. He understood, indeed, that a Bill had been introduced into the other House for the latter object; but he did not think it was being pressed forward with sufficient vigor.

THE ATTORNEY GENERAL

said, that he was willing to admit the importance of the subject stated by the hon. Member; but the question of an alteration in the law which pressed heavily upon trustees in a civil sense had engaged the attention of a noble and learned Lord in another place, and the Bill on the subject to which reference had been made would probably, come down to that House in time to receive due consideration. With regard to the clause immediately under discussion he was desirous of making two or three Amendments in it. Since the clause was framed, Parliament had made a material alteration in the terms of penal servitude. The shortest of those terms, at the time when this Bill was originally drawn, was seven years. It had now been reduced to three years. He had deemed it expedient to introduce this species of punishment into a measure of this kind, and yet he had felt that seven years would probably be too severe a term for such a class of delinquents. In the French and American codes, the punishment was limited to two or three years' imprisonment. The Committee would agree with him that it was desirable to retain the punishment of penal servitude, and he proposed to alter the clause as follows:— To be kept in penal servitude for the term of three years, or to suffer such other punishment by fine or imprisonment for not more than two years, with or without hard labour, as the court shall award. The maximum term of penal servitude would thus be three years, but there would be some minor offences which would be punishable by fine, some other offences which would be punishable by simple imprisonment not exceeding two years, and in the worst cases there might be the addition of hard labour.

MR. G. HADFIELD

observed, that he still thought the clause too severe, and hoped the case of honest trustees would have the consideration of the Government.

Clause, as amended, agreed to.

Clause 10. (Nothing in the Bill shall exempt any person from answering any questions in any court, but that no evidence given by such person shall be admissible against him in any prosecution under the Act).

MR. BUTT

said, he had a strong objection to this clause as an infringement of the principle of law that no man was bound to criminate himself. An innocent trustee might be subject to an accusation under this Act, and it was most improper to expose a person to a species of legal inquisition or torture to extort a confession and self-crimination. Nor did the proviso altogether remove his objection, because, although a person's answer was not to be admissible in evidence against him, it might supply the links of evidence that might convict him in a court of law. At a future stage of the Bill he should take the sense of the House on this clause.

MR. AYRTON

said, he also would support the objection to the clause. It was an ancient principle of English law that a party should not be compelled to criminate himself. Even in the exceptional cases in which such disclosures were required it was carefully provided that the party should not be subject to prosecution. This would be the first statute which wholly departed from this old established principle of law.

THE ATTORNEY GENERAL

said, the clause in question was absolutely essential, and its omission would render the Bill nugatory; for, otherwise, if a Bill were brought in Equity, any fraudulent trustee might protect himself from discovery on the plea of liability to criminal prosecution; he would have nothing to do but to say, "I might be brought within the provisions of the Fraudulent Trustees' Act, and I will close my mouth and will not say one word." In the Banker's Act, under which Paul and Strahan were convicted, it was attempted to raise such an exemption, but, happily, without success. The effect of the clause was simply to preserve the civil remedy. The principle of common law was simply that a confession of a party should not be used in a criminal proceeding.

MR. BUTT

said, the principle of law was quite the reverse. There was no objection to the use of a confession, but the objection was to the extortion of it; and every day's experience attested that this was the principle of our law, for any witness could protect himself from answering a question on the score of self-crimination. Now this clause broke in upon that principle, and would enable parties to subject a trustee to inquisition, by which to extort admissions which might ground a criminal prosecution. Could the Attorney General cite any statute which was a precedent for such a provision?

MR. BAINES

maintained that the clause was calculated in no degree to introduce a new principle into our legislation. It was quite true that, in accordance with the rules of the common law, a man who happened to be called as a witness in a court of justice, in a case of burglary, for instance, was not bound to give an answer which might afterwards be used as evidence to convict him of participation in the offence. Now, the clause under discussion, on the other hand, provided that no person should be entitled to refuse to answer any question in a civil proceeding in a court of equity, and his hon. and learned Friend (the Attorney General) had very properly introduced that provision into the Bill, because, if he had not done so, parties would constantly decline to give the necessary information to the Court of Chancery, upon the plea that to do so would necessarily involve a liability to conviction upon a criminal prosecution. But, while his hon. and learned Friend had taken that course, he had furnished an ample safeguard against any dangerous consequences which might be supposed to result from its adoption, inasmuch as the clause set forth that no answer given by a person in a suit in equity should be admissible against him in any proceeding under the Act.

MR. MALINS

said, that he concurred in the interpretation which had been put upon the clause by the right hon. Gentleman who had just spoken, and that in order to facilitate the ends of justice it was highly expedient the clause should be retained in the Bill. In illustration of his meaning he might state that he had been the day before engaged in a case in which, after the death of his two co-trustees, the surviving trustee had appropriated trust money to the amount of £1,500 to his own use. When the case came before a court of equity he had been asked if he had done so, and he had in answer admitted the appropriation, thus saving the court all further trouble in proving the offence. If, then, the clause under discussion were omitted from the Bill, the administration of justice, instead of being facilitated, would be impeded under its operation. Moreover, the present clause, while it preserved the civil remedy, provided that the disclosures obtained in the civil suit should not be used in a criminal procedure.

MR. BUTT

said, he must renew his protest against the principle involved in the clause, on the ground that what to-day was only an experiment might to-morrow become a dangerous precedent.

MR. COLLIER

said, the rule of law was that a man was protected from answering a question, the answer to which would be evidence against him in a criminal prosecution; this clause, however, provided that the admission should not be evidence in a criminal prosecution.

Clause agreed to.

Clause 11.

MR. CAIRNS

said, he wished to direct the attention of the Committee to the case of a trustee who wilfully or through neglect had misappropriated the money committed to his charge, and had been called upon by the parties interested in the matter to make good the deficiency which his violation of trust had occasioned. Now, in that case the trustee might, through his own exertions or those of his friends, be enabled to replace the money; but then there was a rule of law which set forth that in the case in which to compromise any transaction might be an indictable offence, such compromise was itself invalid, and the party was not entitled to the benefit of it. Let him suppose, for instance, that a trustee willfully misappropriated a sum of £1,000 in violation of the provisions of the Bill under their notice. It might be that he was willing to restore the money, or to compromise by a promise of future payment upon security. Now, the object of the Bill was to protect persons beneficially interested in trust property, and any provision which tended to invalidate such a compromise would be injurious rather than advantageous to them, and he therefore proposed to add to the clause the words— And nothing in this Act contained shall affect or prejudice any agreement entered into or security given by any trustee, having for its object the restoration or repayment of any trust property misappropriated.

THE ATTORNEY GENERAL

said, that if he were convinced of the necessity of such a proviso he should prefer one more specifically expressed and accurately worded. Inasmuch, however, as he did not see the necessity for such a proviso, and as the words, if introduced, would be perfectly innocuous, he should not object to their insertion in the clause.

Words inserted; clause agreed to.

Clause 12.

MR. CAIRNS

said, he proposed to amend this clause, so that it should stand as follows:— No proceeding or prosecution for any offence included in the first section of this Act shall be commenced or carried on otherwise than in the manner hereinafter mentioned (that is to say)—1. If in any civil proceeding against a trustee, or if in any proceeding under the bankruptcy of any person being a trustee, it shall appear to the Court or Judge before whom such proceeding shall be pending that there is reasonable and probable cause for a criminal prosecution against such trustee under this Act, it shall be lawful for such Court or Judge to make an order sanctioning such prosecution. 2. Such order sanctioning a prosecution may be made at any stage of the proceeding pending before such Court or Judge, and may be obtained upon motion or petition in a summary way. 3. If the Court or Judge, on an application being made to sanction such prosecution, shall be of opinion that the trustee should be held to bail until either such sanction shall be refused or until a warrant for the arrest of such trustee shall be issued in due course of law, it shall be lawful for the Court or Judge to direct a writ or writs of ne exeat regno to issue against the trustee, marked for such sum as the Court or Judge shall think fit, not exceeding the estimated value of the property alleged to have been misappropriated; and such writ or writs of ne exeat regno shall thereupon be issued and executed, and shall be returnable in the usual manner, provided that the Court or Judge shall have power to require from the person applying for any such writ security to answer any damages in case it shall be found that such writ was improperly obtained. It was quite possible, as the Bill stood, that a plausible charge might be brought against a trustee; and although he might be in no danger of being convicted, yet the odium of having been indicted for a criminal offence would remain, and the imputation, of dishonesty might deeply injure him. A man, for instance, might consent to become a trustee on a marriage, and afterwards, in the natural course of events, children might grow up; estrangements might take place, and it might become the interest of some member of the family to annoy the trustee. Nothing would be more easy in such a case than to get up a case against him, and on an exparte statement to procure his indictment, and thus the stigma would remain against the man all his life, that he had been indicted at the Old Bailey. The Attorney General himself felt that there should be some protection against such a contingency, and the only question was what it should be. His hon. and learned Friend proposed that before an indictment was brought against a trustee, the consent of the Attorney General, or some Judge in equity, must be obtained. Now, with regard to the first check, the duties of the Attorney General were already so onerous that he would not have time to investigate the cases which might be brought before him, and which would rest upon an ex parte statement alone. Again, an equity Judge, if asked to determine upon an ex parte statement, would consider it a most obnoxious duty, and would refuse in any case to grant his consent. The expedient which he proposed was a simple one. It was to give the Judge the power of hearing both sides in the most simple, inexpensive, and summary manner, and of then determining where civil responsibility ended and where criminal liability began. In order, also, to avoid the chance of a person absconding, he would give the Judge the power upon affidavit, which afforded a reasonable ground of suspicion of intent to do so, of granting a writ of ne exeat regno.

MR. BOWYER

said, the Amendment appeared to him to be an important improvement in the Bill, because it afforded some security to trustees against the species of danger and vexatious proceedings pointed out by his hon. and learned Friend the Member for Belfast. As the Bill at present stood, he believed it would be impossible in nine cases out of ten to find any persons to act as trustees, and it would then become necessary to assimilate the law to that of other countries, and enable property to be dealt with without the intervention of trustees. The law now imposed upon persons who filled this thankless office more responsibility and required from them a greater degree of skill, exactness, and care than from any other class of persons. As a general rule, everything which a trustee did not according to the rules of a court of equity constituted a breach of trust, and anything he omitted to do which equity said ho ought to do was also a breach of trust. As to what these rules were, the most skilful practitioners and the most learned judges differed, and therefore there was quite enough at present to deter people from acting as trustees; but if there were added to these burdens the dangers of a criminal prosecution, he repeated that it would be most difficult to find persons to perform these functions. The Bill at present exposed a trustee upon an ex parte statement, perhaps craftily and wickedly devised, to the preliminaries of a criminal prosecution, and a slur would be cast upon his character, even if he subsequently proved his innocence. Against this danger the clause of his hon. and learned Friend would, to some extent, and with certain amendments, guard, and thus tend to mitigate the disinclination which persons would naturally feel to take upon themselves this delicate office. If in the course of any civil proceedings against a trustee it appeared to the Court that that person had so misbehaved himself that the case was inadequately dealt with by these civil proceedings, the Court in such a case ought to have the option of directing a prosecution against the trustee. This was the true remedy to be provided. No step beyond this should be taken, lest prudent men should be deterred altogether from accepting responsibilities which even now were felt to be too heavy.

MR. COLLIER

said, that the effect of the Amendment would be that no criminal prosecution could be instituted against a fraudulent trustee without a previous suit in Chancery, and it appeared to him that a provision of that sort would almost destroy the efficacy of the Bill, which had been brought forward in a great measure for the benefit of the poorer classes. In his opinion a fraudulent trustee was as great a criminal as the man who picked a pocket. But, he would ask, what necessity was there to make the Court of Chancery the vestibule to the Old Bailey? He thought that the clause proposed by the Attorney General was quite sufficient for the protection of trustees, as he considered it to be more in accordance with the principles of jurisprudence in such cases, if trustees were to be protected, that no criminal proceeding should be instituted against them without the sanction of a high law officer of the Crown or of one of the Judges, than that there should be of necessity a suit in Chancery in the first instance.

MR. CAIRNS

said, that the hon. and learned Gentleman, who had no doubt a great horror of Chancery proceedings, had entirely misunderstood the effect of the Amendment. All that the Amendment required was that, if there had not been a suit in Chancery, a suit should be instituted. ["Hear, hear," from Mr. COLLIER.] But instituting a suit was the simplest thing in the world; it was merely placing upon a file a piece of paper called a claim, consisting of only a few lines of writing, and, having done that, the suitor could go the same hour to the Judge, tell him his complaint, and state that, in his opinion, there ought to be a criminal proceeding as well as a civil remedy. That done, the great advantage of the Amendment became apparent, because the Judge would then have the power of at once calling the other party before him, which no Judge could do unless a suit were instituted. No expense and no delay would result from the adoption of the Amendment, and the only difference between his proposition and that of the Attorney General was, that the one proposed that the Judge should act upon an ex parte statement, while the other provided that both sides should be heard.

SIR FITZROY KELLY

said, he thought that some objection might he taken both to the clause as it stood and to the Amendment of his hon. and learned Friend the Member for Belfast. The objection to the clause, and a very sound and reasonable objection it was, was that a trustee might have a prosecution entered and a true Bill found against him without ever having had an opportunity of being heard before a Judge. It appeared to him that a very slight Amendment in the clause of the Attorney General would remedy the difficulty. The clause as it stood provided that no prosecution should be instituted except with the consent of a Judge of one of the superior courts or of the Attorney General; but upon that consent being obtained, a Bill might be presented to a grand jury ex parte, and a trustee might thereupon find himself unawares made the defendant in a criminal prosecution. A new class of offences hitherto unknown to the law were created by the Bill, and trustees, whether belonging to the upper or middle classes, might fairly demand the satisfaction of having their cases sifted before they were exposed to a criminal prosecution. He would suggest, therefore, in order to remedy the inconvenience referred to, that before a prosecution should be sanctioned, the trustee should be summoned before a Judge, or before the Attorney General, as the case might be, and heard in his defence. He would, moreover, go so far as to say that it ought to be in the power of every Judge of a civil court, either a court of equity, a court of common law, or a court of bankruptcy, and that not merely in suits instituted against trustees, but in the course of any proceedings whatever in which it should appear to the Judge that a trustee had been guilty of a fraud or crime which would bring him within the operation of this Act, to order a prosecution. But then he would add that the prosecution ought not to be authorized unless the trustee in question was made a party to the suit, and had ample opportunity afforded to him of knowing all the accusations against him. He must confess it seemed to him that the clause and the Amendment of his hon. and learned Friend might be very well blended together.

THE ATTORNEY GENERAL

said, he was willing to allow that the clause was not perfect; still it was to be preferred to the Amendment of his hon. and learned Friend. As to whether the Judge or the Attorney General should call the other side before him, that he thought might well be left to his discretion. They could scarcely imagine that, unless a primâ facie case were shown, the prosecution would be ordered to issue. He (the Attorney General) objected to the trustee being allowed an opportunity to meet the charge before the Judge in chambers, for the only effect of a summons under such circumstances, if the party implicated were guilty, would he to warn him to take flight with more alacrity than he at first intended. His hon. and learned Friend said that the Judge should have the power of directing a prosecution. That was the law as it now stood. Every Judge before whom it should appear that a crime had been committed might direct a prosecution. But the clause in question did more—it enabled the Judge to be appealed to, and empowered him to order the prosecution to issue at once. He would now deal with the objections to the clause as it stood; and, in the first place he would say that he should have been glad not to have had this clause in the Bill, but it had been introduced to meet the apprehensions of some hon. Gentlemen of the inconvenience that might occur if some check was not established. But he confessed that he did not at all participate in such apprehensions. Hon. Members mistook altogether the things that did frighten, and justly frighten trustees. The honest and well-meaning man was intimidated by those pitfalls which were presented by the present state of the law. Trustees were frightened because there were too many technical rules. But it could not be seriously said that the Gentlemen of England would be deterred from accepting offices of this kind because there were enactments which punished dishonesty and crime. It had been objected, however, to the clause that it gave too much power to the Attorney General; but were not his hon. Friends opposite aware that powers of an analogous character were exercised by him at the present moment, and that scarcely a day passed without his being called upon to sanction the initiation of criminal proceedings? and, speaking for himself, he would say that he had no fear of not being able to make the investigations which the hon. and learned Gentleman thought would entail so heavy an additional burden upon him. If, however, he could accomplish that, which perhaps it was too late to attempt this Session, but which he hoped would yet form part of a great legal measure—namely, the establishment of a public prosecufor—a great part of the machinery of this Bill would be unnecessary. There were many points connected with an investigation of this kind which could not be adequately dealt with by the police magistrates, intelligent as they were, and therefore he had thought it desirable to give a power to some judicial officer to institute a preliminary investigation, in order to ascertain whether there was a corpus delicti under the Act. This would be a sufficient cheek, a sufficient safeguard, and a sufficient preliminary inquiry to prevent the process under the Act becoming liable to abuse, and yet to render it so quick and ready that only a few hours should elapse between the application and receiving a sanction to proceed. He admitted that the application would be ex parte, but it must be made to a Judge in chambers or to the Attorney General, who were always accessible. He would now come to the suggestions of his hon. and learned Friend the Member for Belfast (Mr. Cairns). Let him take the first and second parts of the clause; they provided that there must be some civil proceeding pending; and that it must be made to appear to the Judge before whom the proceedings were going on that there was sufficient cause for a prosecution. Now, such cause could only appear to the Judge after the evidence had been taken, after the defendant had been heard, and when it became the duty of the court to pronounce judgment. Judges would put a strict construction upon this clause; they would approach the discharge of the duty imposed upon them with great unwillingness; they would act with extreme caution, and he might even say reluctance. A Judge, putting a strict construction upon the clause, would say, "I cannot declare that it appears to me there is reasonable and probable cause for a criminal prosecution until the case has been regularly heard, and until the defendant has had a full opportunity of explaining his conduct." The result would be to make the whole Bill a mere farce, for a man against whom a judicial decision had passed would take care not to remain in the country until criminal proceedings could be taken against him. "This would render the whole proceedings nugatory, and would also be most objectionable on every principle of criminal law; for if a Judge should, after such a preliminary discussion, think fit to direct a criminal prosecution of the trustee, would any one tell him that the trustee could then have a fair trial before any jury of this country? With regard to the third part of the clause proposed by his hon. and learned Friend, the full extent of the frauds committed by a trustee might not be at once discovered. It might be supposed that he had fraudulently appropriated to his own use £50, £100, or £150; while, in fact, he might have misappropriated as many thousands. The effect of the writ of ne exeat regno would simply be that the defaulting trustee Would be required to give bail for the small amount of his discovered frauds mentioned in the writ, and would then be enabled to fly from the country and avoid the consequences of his crime. He (the Attorney General) therefore maintained that the mode of proceeding proposed by the Bill was infinitely more efficacious than that which his hon. and learned Friend wished to substitute, and he hoped it would be sanctioned by the Committee.

SIR FITZROY KELLY

said, he only wished to guard himself against a misapprehension of the suggestion he had made to the Attorney General. He entirely concurred with him in thinking that there would be danger of the parties escaping from an indictment for misdemeanour under the Act unless they were apprehended immediately. His desire was that a Judge or the Attorney General should be enabled, if there appeared reasonable grounds to believe that a trustee was about to abscond, at once to issue a warrant for his apprehension, but to allow him to show cause against the accusation. Considering, however, the extensive scope of this Bill—that it applied to every one, from the highest nobleman to the humblest individual in the land who might be a trustee, he was anxious to provide that a person so charged and apprehended under warrant should have an opportunity of going before the Attorney General or a Judge to make such preliminary defence or application as might be proper under the circumstances, before being at once committed to prison.

THE ATTORNEY GENERAL

said, he would consider whether some words to carry out the views of his hon. and learned Friend could not be introduced into the Bill before bringing up the Report.

MR. ROLT

said, he was surprised to hear from his hon. and learned Friend the Attorney General that this clause had been introduced into the Bill to meet the apprehensions entertained by other persons, and that it did not gain his approval. He should have thought that would obviously have been part of the scheme of his hon. and learned Friend, when he was introducing a new code of criminal law in respect to breaches of trust, to protect the innocent trustee as well as to punish the guilty one. He (Mr. Rolt) contended that the relation in which a trustee stood to his cestuique trust was wholly different from that which obtained between man and man in any of the ordinary transactions of life. All mercantile transactions between men, generally speaking, were simple, short in duration, and easy of solution compared with, the relation subsisting between a trustee and his cestuique trust, spreading, as the latter often did, over a whole life, and generating in some cases feelings of respect and in others of animosity. Then, again, in mercantile life men entered into transactions for the sake of their own profit; but it was different in the other case, and there would be great difficulty in finding persons to take upon them the relation of trustees if, while the Legislature provided a punishment for the guilty trustee, it did not protect the innocent trustee from malicious prosecutions.

THE ATTORNEY GENERAL

explained that what he said was that he had not introduced this clause because he deemed it necessary to allay the apprehensions that persons would feel on becoming trustees, but because it was necessary to have persons better competent to judge of the nature of the fraud than in ordinary cases.

MR. ROLT

The explanation of the hon. and learned Attorney General seemed to approve the view he (Mr. Rolt) took, that it was necessary to shield the innocent trustee from malicious prosecutions, while provision was made for the punishment of the guilty one. At all events, he submitted that the Amendment of his hon. and learned Friend (Mr. Cairns) was undoubtedly to be preferred to the clause as it stood originally, inasmuch as in cases where a hostile feeling arose between a trustee and the cestuique trust, it was more likely to meet the justice of the case. The essential difference between the two was, that the clause of the Attorney General proceeded on an ex parte statement, and it would therefore impose so great a responsibility upon the Judge or the Attorney General that it could not be acted upon, and, in consequence of that, the object of the clause would be virtually abandoned. The Amendment of his hon. and learned Friend the Member for Belfast, on the contrary, hit upon a happy medium, as by it the inquiry might be instituted in any civil proceeding, and at any stage of it, a circumstance which seemed to have escaped the notice both of the Attorney General and of the hon. and learned Member for Plymouth (Mr.Collier). It might be ex parte, but the Judge would in that case hold the trustee to bail, and thus give him an opportunity of being heard before the prosecution was instituted; while at the same time it would prevent a guilty trustee from escaping from the jurisdiction of the court.

THE SOLICITOR GENERAL

said, after the statement of his hon. and learned Friend the Attorney General, he could not understand the object of his hon. and learned Friend the Member for Belfast in persisting with his Amendment, and the less so as there was so much identity between it and the proposition of the Attorney General. The clause as it stood provided for both cases, that of ex parteproceedings, and of the hearing of the party, leaving the question as to which should be adopted at the discretion of the Judge. What, then, was the meaning of the Amendment? It would not leave the Judge any discretion in the matter. But was his hon. and learned Friend the Member for Belfast prepared to say that there was no case in which the Judge ought not to proceed ex parte? Surely it must be admitted that for the furtherance of justice there were cases in which it would be absolutely necessary to proceed ex parte. He granted that if the person to be proceeded against were a man of status he might be summoned; but for one such case there were a thousand cases of dishonest trustees who wished to escape. He could not conceive that any object would be accomplished by the Amendment which was not duly accomplished by the clause of the Attorney General.

MR. HENLEY

said, he understood the object of the clause to be to give some protection to a trustee against malicious prosecutions, but he believed that unless the defendant were heard it would prejudice him rather than protect him. If these cases were so complicated that greater ability was necessary than the ability of a stipendiary magistrate to decide whether the status of trustee existed or not, he thought it quite possible that some deed might be suppressed, or a state of things represented which admitted of a complete and immediate answer. Upon charges of forgery and murder, it could hardly be said that any ex parte proceedings were taken, and the power of going before a grand jury and preferring a Bill of indictment behind a man's back was viewed with considerable disfavour, because of its liability to abuse. It was I quite possible under this Bill that one case might be taken before the Attorney General and another before the grand jury. There was not a tittle in the clause to insure the defendant having any knowledge of what was alleged against him. He thought the requiring a suit to be first instituted unnecessary, as in many of the worst cases, the only object would be punishment. If the Government gave an assurance that they would introduce words to secure the party being heard, he should prefer the clause to the one proposed in substitution of it. If the defendant were not heard, he would go before the grand jury with the weight of the Government official unfairly pressing against him; but if he were heard, he would stand in the same position as a defendant before a magistrate, and might exercise his own discretion whether he would say anything or not in his defence.

THE ATTORNEY GENERAL

said, he would give his right hon. Friend the assurance that words should be added to the clause, giving the Judge or the Attorney General, and more particularly the Judge, power to summon the party, and in fact indicating generally that the party ought to be summoned, though he could not carry it to the extent of making it imperative. He would gladly do so if the Judge had power to commit, but he was afraid there was great difficulty in that. If the Judge had the power to commit, he would be in the situation of a committing magistrate, and the party would be summoned before him, which he thought infinitely better. That was his object, and he had so framed the clause; but on consulting the Judges, he found there was an objection to exercise the power. When the Report was brought up, he would introduce an Amendment to the effect he had stated.

MR. CAIRNS

said, that after the assurance of the hon. and learned Gentleman (the Attorney General) he need give the Committee no further trouble, the object of his Amendment having been directed solely to giving a due amount of protection to the trustee, and affording him an opportunity of being heard in his defence. He would, therefore, with the permission of the Committee, withdraw his Amendment. At the same time he would suggest, whether it would not make the machinery more complete if they added a power of issuing a writ of ne exeat regno in those cases in which some step was required to be taken at once?

Amendment, by leave, withdrawn.

MR. AYRTON

objected to this power being placed in the hands of the Attorney General. He thought that these cases had much better be left to the ordinary tribunals of justice. He hoped that the Attorney General would strike out this provision.

Clause agreed to.

Clauses 13 to 16 were also agreed to.

Clause 17.

MR. E. C. EGERTON moved, after the words "personal property," to insert the words "goods, materials."

Clause, as amended, agreed to; as were also the remaining clauses of the Bill.

House resumed.

Bill reported; as amended, to be considered on Monday next.