debtor responsible for false information as to his position. given without his knowledge? As to the third class, are not the debtors whose characters have deteriorated owing to unemployment, domestic trouble, or hereditary causes, usually without means to pay? Then are the persons belonging to these three classes so strangely scattered through the country that there may be 1,000 of them in one district and 10 in another district which to ordinary observers seems similar? and do they remove from one place to another according to the views of the judge who presides there for the time being? Nor do I see that there is room for any great difference of practice between. different judges if all the debtors who come before them are liars or degenerates, or persons who have induced others to tell lies on their behalf? No judge would be likely to treat them with more favour than he could help.

The Committee also compare the relative advantages or disadvantages of distraining the debtor's goods and imprisoning him. This may not have been irrelevant, as they had to consider what the effects of the abolition of imprisonment for debt would be; but they do not point out that at present these are not alternative remedies, the plaintiff being empowered to use both methods of recovering the same debt. I do not concur with their opinion. that the seizure and sale of his goods is harder on the debtor than imprisonment, nor do I think the evidence bears out this conclusion. But having arrived at it, the Committee ought to have carried it out consistently, and proposed to alter the law so as to exclude distraint until an attempt to recover the money by imprisonment had failed. Instead of this, they have expressed their opinion that no alteration should be made in the kinds of imprisonment for debt-for instance, that for non-payment of rates-in which the present law provides that imprisonment is not to be resorted to until an unsuccessful attempt has

been made to levy the amount by distress. The landlord possesses this power of distraining without being required to obtain the sanction of any Court to his use of it, and his claim to distrain takes priority over that of the executioncreditor, yet the Committee makes no proposal to limit this power of distress, while they describe the landlord as one of the creditors who ought to be able to enforce his rights by means of imprisonment when his remedy by distress fails. "Retain imprisonment because it is better than distress, but do not restrict in any way the present powers of distress," is not very consistent advice.

Space will not permit me to go fully into the recommendations of the Committee or to consider the counter-report proposed by Mr. Pickersgill, which has been published along with its successful competitor. My object has been to show that the Report, which certainly does not express the sentiments of a majority of the Committee, is not of sufficient merit to claim acceptance on other grounds. The evidence which has been collected and published is of great value; as also are the statistics given in the Appendix, though I should wish to see them supplemented by further evidence and further statistics, more especially as regards imprisonments by other Courts than the County Courts. Imprisoning a man who cannot pay the rates seems to me to be a peculiarly futile proceeding. In ordinary cases the public bears the cost of trying to screw the money out of a debtor who has not got it, and the creditor can look on placidly with his arms folded; but in imprisonment for non-payment of rates it is the creditor who pays for maintaining the debtor in prison. The ratepayer is the creditor, and the imprisoned debtor is supported out of the rates-his family perhaps being also thrown on the rates during his imprisonment.

I venture to make a further suggestion with regard to these Parliamentary Committees. Many of the most valuable members do not belong to the legal profession, and

would be greatly assisted in their labours if they had before them a succinct statement of what the present law on the subject is (with a reference to the statutes in which it is to be found), and also a reference to the principal statistics available for their guidance. This duty, I think, should devolve upon a public official. It is hardly possible that the Committee on Imprisonment for Debt could have arrived at the Report on which I have been commenting, if such information had been given to it. As it is, the import of some of its most important recommendations is rendered doubtful by its ignorance of the law. The Report recommends that creditors shall not be permitted to obtain committal orders under sect. 5 of the Debtors Act unless the debt was incurred for necessaries or damages for tort: but it also declares that the power of the High Court to commit debtors to prison ought not to be interfered with, and that the law which it administers is "useful and salutary." Did the Committee intend that the restriction on the granting of committal orders based on judgment-summonses should apply to the County Courts only? If so, the creditors who were excluded from obtaining such orders in the County Courts would sue in the High Court and obtain. committals there. Sir Wm. Selfe's Bill is, of course, free from this ambiguity. The exclusions contained in it extend to all Courts having jurisdiction under the 5th section of the Debtors Act; but probably the author of the Bill did not regard the administration of that section by the High Court as useful and salutary.

The Committee gave much time and labour to the discharge of its duties, but the least valuable outcome of its labours is the Report; and, I think also, that of the two competing Reports which it considered, its choice fell upon the wrong one.

LEX.

25

III. THE LAW OF THE UNIVERSITIES.

IX. MISCELLANEOUS.

(a) Practice and Evidence.

WITH regard to procedure in the ordinary courts, the

rence.

universities and colleges must sue and be sued in their corporate titles, but in the case of a college apparently not during the vacancy of the headship. During such vacancy certain other powers, especially any which need the use of the common seal, are in abeyance, unless the defect be met by the statutes. At Common law a corporation can contract only by deed under the common seal, but in later times the strictness of this rule has been relaxed in the matter of contracts of small amount and of frequent occurThere is no doubt that a college through its bursar could make valid contracts for the supply of provisions, the repair of buildings, the hire of servants, and similar matters. As universities and colleges are charities, they fall under the ordinary rule that the administration of them and of any trusts of which they are trustees,1 being matters of public interest, are to be inquired into by information by the Attorney-General at the relation of any person interested. In one case an information was filed against the ViceChancellor, the Warden of New College, for misconduct in his office. The procedure by mandamus is that which most frequently occurs in the reported cases. It lies where jurisdiction has been declined, of which many instances have been given in the previous pages. It may issue to a university, a visitor, or a college according to circumstances.

1 An early case is A.-G. v. Balliol College [1744], 9 Mod., 407, with regard to the Snell exhibitions. The person who is to execute a trust must be a person pointed out by the creator of the trust as a proper person to execute it. Re Crunden & Meux's Contract, L. R. [1909], 1 Ch., 690.

2 R. v. Purnell [1748], 1 W. Bl., 37.

Some of the cases are to restore a graduate deprived of his degrees, to affix the common seal, to grant a degree, to admit or restore a fellow or scholar, to admit a head, 2 in one case to remove a Lollard from a scholarship.3 The mandamus might have been followed by feigned issue, when that mode of procedure existed.* Proceedings by scire facias to repeal a charter or letters patent are still competent, but have been superseded by surrender. The Universities Committee of the Privy Council sits by delegation of the Crown in the matter of grants of new charters. Prohibition lies where jurisdiction has been exceeded, as by the Chancellor's court. In one case the right to a fellowship of Winchester was by consent tried by prohibition, it being doubtful who was visitor, and a mandamus thus not lying. In one case a writ of restitution was refused, but no doubt would have been granted in a proper case. Habeas Corpus lies for false imprisonment of a scholar or of one of the public. The remedy by quo warranto is not competent to test the right of a fellow to his office.9 An injunction has been sometimes granted to prevent a college from taking a certain course. At least one famous case was tried on ejectment, and probably the modern action for the recovery of land would lie under similar circumstances. Distress as a remedy for withholding of the stipend of a fellowship is no longer in use. Fellowships are probably since recent changes not freehold offices but merely charges on the

1 R. v. Cambridge University [1765], 3 Burr., 1,647.

2 As in Patrick's Case [1666], T. Raym., 101, where it went to the senior fellow of Queens'.

3 T. Raym., 110.

Sandys v. Sandys [1840], 1 Q. B., 316 (n).

Cited in R. v. Bishop of Ely [1750], 2 W. Bl., 58. Declaration in prohibition, a procedure occurring in some of the cases, is now obsolete.

• Widdrington's Case [1663], T. Raym., 31, 68. It is probable that certiorari would lie to remove the record from the Chancellor's court, but there appears to be no case on the subject.

7 T. Raym., 110. 8 R. v. Elsdon, below. See also Perrin v. West, above. 9 Marriott v. Gregory [1772], Lofft, 21.