"to the Assistant Registrar for his decision, and he conceiving the entire transaction was "fraudulent and outside his powers, forwarded the case to the Treasury. 66 By a Treasury Minute, dated the 13th September 1876, the Lords of the Treasury "directed that certain of the powers conferred on the barrister appointed to certify "Savings Bank Rules under the 26 & 27 Vict. c. 87, ss. 38 and 46, should be "transferred to the Solicitor of the Treasury, and that minute being in fuli force, the "case so forwarded by Mr. Littledale was referred to the Treasury Solicitor, who "was of opinion that the deposits made in fictitious names were so made with a "fraudulent intention by the late Mr. Cochrane. If that is to be regarded as a "decision on the matter coming within the powers of that officer, the result would be "the forfeiture of the fund to the Commissioners for the Reduction of the National Debt. "On receiving the above-stated opinion of the Treasury Solicitor, Mr. Littledale. "declined to act under Section 48 of the statute, and a conditional order was obtained "for a mandamus to hear and determine the dispute which had so arisen between the personal representatives of Cochrane and the trustees; cause is now shown against that "order. 66 "In the discussion before us several questions have been debated, arising principally on 38 and 48 section of the 26 & 27 Vict. c. 87, on which, in the view which the Court "takes of the case, it will not be necessary for us to decide. "We have no doubt that if the facts raised a question as to whether a deposit had "been made with a fraudulent intention so as to create a forfeiture, that question would "be properly referred to the Solicitor of the Treasury, being the person appointed "by the Lords of the Treasury to perform the duties and exercise the powers of "the barrister in that respect. We are equally clear that no question of forfeiture "arose within the meaning of Section 38; the absolute forfeiture contemplated by that "section arises only on either of two events, viz. In case the declaration made by "the depositor shall not be true, and 2nd, of it the person shall hold or be possessed of "any deposit or funds in more than one Savings Bank.' 66 66 "The depositor Cochrane made no declaration, he was never required to do so, he "did not hold nor was he possessed of any deposit in any Savings Bank but the one, "VIZ.: The Newry Savings Bank; the case of forfeiture under Section 38 did not "therefore properiy arise. We are also of opinion that on the claim made by the personal representative of the depositor to be entitled to the money so deposited, "which was controverted by the trustees and managers of the bank, a dispute arose "within the meaning of the Section 48, which the Assistant Registrar had jurisdiction "to entertain; but there is behind all this another consideration which we think ought "to govern the court on the present motion. The applicant seeks from us the issue of "a writ of mandamus to the Assistant Registrar to hear and determine the difference "which has so arisen. Under ordinary circumstances the writ would go to compel "the performance of a legal duty which the Assistant Registrar was bound to perform "in pursuance of the statute, but ought this court to grant this writ in aid of the "applicant when his claim is founded on a violation of the positive law. It seems to us "that the process of the court ought not to be made ancillary to a transaction which "violates the law. There is no controversy as to the facts, and there can be no doubt "that the whole of the deposits made by the deceased after the time at which the "26 & 27 Vict. c. 87, became law, were made illegal in contravention of that statute, and "were so made wilfully and with intention to defeat its provisions. The 38th section "declares, inter alia, that it shall not be lawful for any person already a depositor in a savings bank to make any deposit in any other account at the same or any other savings bank. The policy of this provision is obvious, and it is clear that the deposits "in controversy were made by Cochrane; not only contrary to that policy but in "defiance of the express prohibition of the enactment; there can be no doubt these deposits were made with a fraudulent intent within the meaning of Section 38, though "not so as to create an absolute forfeiture within that Section; no legal right can flow "from such a transaction which the law forbids. There is a passage in a judgment of "Lord Mansfield constantly quoted, and always with approval. I allude to his judgment "(in Holman v. Johnson, Cowper 341); at page 343 he says,The objection that a "contract is immoral or illegal as between plaintiff and defendant sounds at all "times very ill in the mouth of the defendant. It is not for his sake, however, that "the objection is even allowed, but it is founded in general principies of policy, which "the defendent has the advantage of contrary to the real justice as between him and "the plaintiff, by accident if I may so say. The principal of public policy is this, ex "dolo malo non oritur actio, no court will lend its aid to a man who founds his cause "of action upon an immoral or an illegal act. If from the plaintiff's own stating "or otherwise the cause of action appears to arise ex turpi causâ, or the transgression "of a positive law of this country, then the court says he has no right to be "assisted; it is upon that ground the court goes, not for the sake of the defendant, "but because they will not lend their aid to such a plaintiff, so if the plaintiff and "defendant were to change sides and the defendant was to bring his action against "the plaintiff, the latter would then have the advantage of it, for when both are equal "in fault, potior est conditio defendentis.' 66 "That judgment was delivered more than a century ago; the passage quoted still governs the decisions of all courts; it applies to all actions and suits, and à fortiori "to an application addressed to our judicial discretion, and seeking for the aid of the 373. "writ to enforce a claim founded on illegality. The writ goes to inferior tribunals to "oblige them to do such justice as the laws enjoin. It is a writ emphatically in "subsidium justitiæ and does not lie to give effect to illegality; the court will not assist "the illegal transactions in any way; it punishes the parties to the illegality by refusing its aid. If the writ was to go it would be fruitless, for the Assistant Registrar "could come to but one conclusion on the legal merits, and that in accordance with the "decision which we now announce." 66 The administrator appealed, and on the 28th June the Court of Appeal dismissed the appeal. The Court (Lord Chancellor, Lord Justice Deasy, Lord Chief Baron, and Lord Justice Fitzgibbon) concurring, however, in the opinion that there was no forfeiture by reason of double deposit under the Savings Bank Act of 1863; and the Lord Chief Baron and Lord Justice Fitzgibbon both expressing a hope that the case of the administrator would be favourably considered by the authorities. The affidavit of a maiden lady, aged 80, was handed to the Court of Appeal, which detailed the eccentric life of Cochrane, the depositor, and his total abstinence from speech for nearly 40 years, but could not be used on the appeal. The case of the representatives of the depositor is certainly a hard one and deserving of sympathy, and one can only hope that some mode may be found where by this very large sum may be set free and paid to somebody; and it may also be hoped that the trustees of this and other savings banks will take warning by this case and obey the plain directions of the Statute, by requiring the statutory declaration from each depositor; and it would be well if the auditors of savings banks were to require to see this declaration as a voucher for the legal addition of interest to the depositors' accounts at their yearly audit. 9, Upper Ormond Quay, Dublin. 1 August 1882. (signed) W. F. Littledale. APPENDIX TO PART I.-(A.) Appendix A.-Report of the Actuary to the Central Office on the Quinquennnial Appendix B.-The Friendly Societies (Quinquennial Returns) Act, 1882, Appendix C.-New Regulations for Building Societies PAGE 78 80 80 Appendix D.-Act of Sederunt regulating the Proceedings in Liquidations in the Sheriff Courts of Scotland, under the Building Societies Act, 1874 94 Note. The particulars are slightly altered from those of the original Report, and do not include Scotland and Ireland. APPENDIX (A.) REPORT of the ACTUARY to the CENTRAL OFFICE on the QUINQUENNIAL REFERRING to my Report, dated 19th November 1880 (copy annexed), in reference to the subject of quinquennial returns, I have now to state that the first preliminary classification and examination of those already received for the period ending 31st December 1880 has been made. It should be added that these returns are still coming in in considerable numbers." In the Report just referred to, it will be seen that I have indicated that, in my opinion, in the event of the special form introduced for the quinquennium ending 31st December 1880, being properly filled up by a fair proportion of the societies, the objects of the requirements of the Act as regards quinquennial sickness and mortality returns may be considered to have been achieved as regards the societies themselves. These objects I take to be to collect from the experience of the societies, as given in the returns to this office, adequate data, from which trustworthy tables may be constructed by this office, with the approval of the Treasury, Section 10 (5 b and c), for the information and guidance of societies. In the Table appended to this Report will be found particulars of the quinquennial returns now in the custody of this office, which may be utilised in the construction of tables. The following is a summary thereof: The form used for the quinquennium ending 31st December 1880 was much more elaborate and difficult to fill up than for previous quinquenniums. This, as explained in my Report of 19th November 1880, was necessary in order to obtain information on the only point as to which information was really required, viz., the duration of sick-pay as affecting the cost thereof to the society. The number of returns for 1880 available for this special purpose is 5,537 at present, and will, no doubt, be considerably increased. These returns, speaking generally, are neatly and carefully made; indeed, many of them call for the highest praise, and must have cost the persons who made them, nearly always the secretary of the society, a great deal of time and trouble, for which there is every reason to believe he would be very poorly paid, if paid at all. An idea of the enormous amount of information in these returns may be gathered by considering each society as having on the average (say) about 100 members on the books throughout the five years; and taking the low estimate throughout of 50 per cent. of the returns being available for the construction of tables, this would give nearly 10 million years of life, a number far away in excess of any data ever before collected, thus: The Institute of Actuaries Collection of Life Offices' Experience contained about 1 millions. The Manchester Unity of Odd Fellows' Sickness and Mortality Experience, 1870, about 1 millions. The Ancient Order of Foresters' Sickness and Mortality Experience, 1875, about 1 millions. A. Glen Finlaison's Friendly Societies' Experience, 1850, about 800,000. Even if the assumption of 100 members per return be excessive, and be reduced to 60, which is certainly too low an estimate, the number of years of life would be about six millions. I have now, therefore, to report that I am of opinion that (1) the data already in the possession of this office are adequate for the purposes of this Act, and (2), that there does not appear to me, as regards the societies themselves, any necessity for continuing in force the provisions of the Act relating to the making of quinquennial sickness and mortality returns. 22 May 1882. (signed) William Sutton, Actuary to the Friendly Societies Office. • Probably more than 2,000 returns have been received since the date of this Report. |