CO885-(15-16) — Page 609

PUBLIC RECORD OFFICE

Reference :-

11C.O.885

16 PUBLIC RECORD OFFICE, LONDON

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(b) That if in that case the unofficial members resigned in a body (as they did in 1890) it would be necessary to fill up their places from persons not holding public offices;

(c) That if (as in 1890-1) no suitable persons could be found to take places as unofficial members, the Legislative Council could not be legally consti- tuted. That the only way out of the impasse would be either an Ordi- nance of the Colonial Legislature, which was obviously impossible, or an Act of the Imperial Parliament.

That it would be seen from the extract from the Governor's despatch that he did not concur in the views above expressed, and that he proposed that if an additional official member were appointed and the unofficial members tendered their resigna- tions these resignations should not be accepted until either suitable successors had heen secured or the necessary Ordinance (conferring on His Majesty the power to legislate by Order in Council) had been passed with the assistance of the additional official member. That the Governor supported that proposal by the arguments which would be found in the extract, but that Mr. Fiddes was to explain that, in your opinion, it would be unwise to place any reliance on the prospect of obtaining suitable persons not holding public offices as successors to the present unofficial members if they tendered their resignations en bloc.

That since the Ordinance No. 14 of 1892 was passed there had been no legisla- tion affecting the constitution of the Legislative Council; but that Mr. Fiddes was to draw attention to the Ordinance No. 14 of 1899, providing that, notwithstanding anything contained in Chapter 7 of the Consolidated Laws, no Imperial Statute passed on or after the first day of January, 1899, should, under or by virtue of that Chapter, come into force in the Colony.

That with the above explanations Mr. Fiddes was to request that we would furnish you with our opinion on the question raised by the Governor, viz., whether the Legislative Council would be legally constituted after the unofficial members had tendered their resignations so long as the Governor declined to accept them, and with any further observations we might think it advisable to make.

We have taken the matter into our consideration, and, in obedience to your commands, have the honour to

Report-

That in our opinion power is conferred upon the Crown by virtue of Section 3 and the amended Section 4 of Chapter II. of the Consolidated Laws, to declare by Instruction or Warrant under the Sign Manual and Signet that a fifth officer shall be an official member of the Legislative Council and to designate the officer.

The Legislative Council so constituted would be legally constituted notwith- standing that the unofficial members tendered their resignations, provided that their resignations were not accepted, for by virtue of Section 17 of Chapter II. of the Consolidated Laws no such resignation shall take effect until accepted.

The Right Honourable

Lewis Harcourt, M.P.,

&c.,

&c.,

&c.

We have, &c.,

RUFUS D. ISAACS. JOHN SIMON.

R

23998

No. 144.

(STRAITS SETTLEMENTS.)

LAW OFFICERS to COLONIAL OFFICE.

[Question whether in the event of the liquidation of a Joint Stock Bank deposits belonging to the Currency Commissioners would rank as debts to the Crown, having priority.]

Royal Courts of Justice,

21st July, 1911. SIR,

We were honoured with your commands signified to us in Mr. G. V. Fiddes's letter of the 27th March last, stating that he was directed by you to transmit to us the accompanying despatch from the Governor of the Straits Settlements, enquiring whether, in the event of the liquidation of a joint stock bank in which sums of money belonging to the Currency Commissioners of the Colony were deposited on call in the names of the Crown Agents for the Colonies, the deposits would rank as debts to the Crown, having priority.

That it would appear from the Report of the then Law Officers, dated the 29th January, 1903,* and from the cases cited therein, that the priority of the Crown in the case supposed by Sir John Anderson would he tested not by the law of England, where the proceedings would presumably be instituted, but by the law of the Straits Settlements where the title of the Crown arose.

That it would be seen that Section 42 (III.) of that Ordinance provides that all debts due and claims owing to Her Majesty, Her Heirs and Successors, shall be entitled from the date of accruing thereof to a preference over all debts or claims which shall subsequently to such date have been contracted or incurred by, or become

other due from, such Crown debtor to any person.

That it was stated in the case submitted in the Report of the Law Officers of the 27th of July, 1898,† that in the winding-up of the New Oriental Bank Cor- poration the Crown Agents for the Colonies appeared in the proceedings and obtained priority for the Crown on behalf of the Colonies of Ceylon, Mauritius." Hong Kong, and the Straits Settlements, their title to obtain such priority not being disputed, a statement which was supported by the fact that the point was not referred to in the report of the proceedings in L.R. (1892), 3 Ch. 563.

That it would seem from the Law Officers' Report of the 29th of January, 1903,* that if the question depended upon the law of the Colony concerned the title of the Crown Agents with regard to Mauritius might have been successfully disputed, but that, as regards the Straits Settlements, they could have relied on the Ordinance, No. XV., of 1876.

That Mr. Fiddes was to request that we would take the matter into our con- sideration and advise you whether, in the circunstances contemplated by Sir John Anderson, the sums deposited in the names of the Crown Agents on behalf of the Currency Commissioners of the Straits Settlements would rank as debts to the Crown, having priority.

We have taken the matter into our consideration, and, in obedience to your commands, have the honour to

Report-

That in our opinion, in the event of the liquidation of an English joint stock bank, the question of the priority of Crown debts would have to be determined according to English law. The Report of our predecessors, dated the 29th January, 1903,* was dealing with a Colonial bankruptcy to which, of course, Colonial law would apply.

The debts in question would by English law rank as Crown debts and would, in effect, obtain priority over all other debts of the banks of equal degree.

We have, &c..

RUFUS D. ISAACS. JOHN SIMON.

The Right Honourable

Lewis Harcourt, M.P.,

&c., &c., &c.

• No. 176 in Vol. VI.

(20825-2.) Wt. 96-181. 23. 8/11. D&S.

No. 182 in Vol. V.