If

to confirm the humble idea which the memorialists have of themselves. A man must talk sense before he is considered an authority. The memorialists may have all received a thorough legal education.' If they have, this suggestion does not do them justice, and indicates that, with thorough legal knowledge, they have not also obtained the power of correctly applying it. Apparently the authors of this suggestion have not traced it to its practical results, and are another example how easy it is for persons to see no difficulties in a new set of circumstances, when these circumstances are such as they have never had any experience of.

The simple result of such a change in the appointment would be to hand over the whole of the subordinate judgeships in Scotland to the county members. If the county member had a son or a nephew at the bar, who was doing nothing, of course he would get the place. If he had not, then the county member's electioneering agent would be the Sheriff-substitute. This was foreseen and provided against in England by giving the patronage of the County Court judgeships, not to the Home Secretary, but to the Lord Chancellor. It was thought that that high officer could not be manipulated by members of the House of Commons; and perhaps, as there were no Sheriffs to make the appointments, the selection of the Lord Chancellor was the best. According to the existing system in Scotland, the Sheriff endeavours to make a good appointment, because his own comfort and his own powers of usefulness are staked upon the result. In some counties it is of no consequence that the Sheriff-substitute knows little of law, because there is very little of law to administer. If he can act the part of a walking gentleman, propose a motion at a Lancashire distress meeting, and now and then try a police offence, he fulfils his duties. He represents local justice, and he draws a fair and reasonable remuneration from the Exchequer for doing nothing. It is only on these grounds that some appointments can be justified; and it is somewhat questionable policy on the part of the men who have them, to insist on the public investigating their claims to office. There are, no doubt, names appended to this memorial to which these remarks are inapplicable, and which do not acquire any additional lustre by being in such company.

The second proposal in the memorial is, that the Sheriff-substitutes shall, upon vacancies occurring in the office of Sheriff, be elevated to the higher office. A few years ago, these same gentle

VOL. VII-NO. LXXIV. FEBRUARY 1863.

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men raised a great controversy as to the necessity for having a Sheriff over them. It was a useless office, they said; and the question was fairly tabled for discussion, and fairly argued, and the result was that the office was upheld. It would be out of place now to raise any discussion here in regard to the utility of an office, the utility of which is now conceded, and which the memorialists now claim for themselves. One cannot help, however, expressing some surprise at the inconsistency which, within so short a space of time, can box the compass of opinions. What was formerly useless is now useful, and an object of legitimate ambition. The whole public bodies, and in particular the procurators in the various Courts, discountenanced that old agitation, and it is not now directly revived. The office is one which these gentlemen, who formerly denounced it, consider that they might conscientiously hold.

Now, according to the existing law, a Sheriff must be an advocate practising in the Court of Session, the object being to keep the Sheriff au fait with the law administered in the Supreme Court of the country. There are, however, appended to the memorial the names of five gentlemen who could not, according to this law, hold the office of Sheriff, in respect that they are not advocates, Of course, therefore, in order to render them eligible, the law must be changed so as to free Sheriff-substitutes who are writers, and not advocates, from this unfortunate restriction upon their liberty. But if they did not attend the Supreme Court, what are they to do? Could they go to Rome in the winter, and Naples in the spring? And what, too, would be the consequence of the appointment to the office of Sheriff, of Substitutes who are advocates? In their green and fresh youth, when their blood was warm, their ambition buoyant, and their vigour strong, they failed at the bar. It was not, of course, their fault, but was owing to the want of discrimination on the part of agents. But still it must be admitted that they failed; and would they succeed now, if they returned in their old age to a scene that would be new to them, and to a business which they had never practised? They would just constitute a set of old fogies, walking up and down the Parliament House, having nothing to do with the busy scene around them, and furnishing the best argument for the abolition of the office to which they had been promoted.

Where they are, they are men of mark. They have an influence and a position in their county which they never could have in Edinburgh. They would, moreover, be pecuniary losers by the change.

The salaries of the Substitutes are as great as-in some cases greater than the salaries of the Sheriffs; and in the country these salaries are worth one-third more than they would be in Edinburgh. The memorialists would thus sacrifice at the shrine of vanity, the substantial realities of local dignity and comfortable independence.

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The third suggestion in the memorial is to the effect that the salaries of these gentlemen should be largely increased. They admit that, in 1853, there was a general revision and increase of the scale of salaries then paid to Sheriff-substitutes;' but they add, by way of qualification, that the increase was clogged with such stringent conditions, and was so restricted in amount, that it was generally understood at the time to be only preparatory to a more liberal measure.' The stringent conditions with which the increase was clogged were simply these, that it shall not hereafter be lawful for any Sheriff-substitute so receiving salary to act as agent, either in legal, banking, or other business, or as conveyancer, banker, or chamberlain, except for the Crown.' Now, the condition does not seem to be very stringent nor very unreasonable. As to the 'general understanding' which is said to have prevailed in the country, we can say nothing, as we know nothing about it; and as to the amount of the salaries, the best way is to let the figures speak for themselves :

Now the increase here is very large; and it cannot be said that these salaries, which exceed the salaries of the best beneficed clergymen in the Church, and are greater than any but exceptional professional incomes, are unfair. There are no doubt cases where an increase might be made, in consequence of the amount of work which the Sheriff-substitute has to encounter. The Substitutes at Perth, Paisley, and Dundee, who have more work than the Substitutes at Edinburgh, are entitled to speak; but it would require a good deal of easy good nature to recognise the claims of any others. But this is a matter for the Chancellor of the Exchequer; and we would be heartily glad, if he saw his way, to give every one of the memorialists L.1000 per annum, provided that they hereafter attended to their proper duties, and left off this annual worry of members of Parliament and glorification of themselves.

Digest of Decisions.

COURT OF SESSION.

FIRST DIVISION.

SINCLAIR V. THE LORD ADVOCATE.-Jan. 7.

Proof of Tenor-Narrative.

In 1846 the Crown raised an action of declarator against James Sinclair, Esq. of Forss, to have it found that he had no right to the fishings of the lands of Howburnhead, and others, in the parish of Thurso and county of Caithness. It was answered for Mr Sinclair, that his title to the fishings was contained in a disposition and assignation, dated 30th November 1700, in favour of one of his predecessors and authors, but which disposition and assignation had been lost. That process was sisted to allow the defender, Mr Sinclair, to bring the present action for proving the tenor of the lost deed. A proof having been led, counsel were heard yesterday. The adminicles of evidence as to the existence and tenor of the deed alleged to have been lost, consisted of an instrument of sasine thereon, excerpts from various contracts of wadset, and dispositions of rights of reversion. The instrument of sasine narrates the dispositive clause of the lost writ, which is set forth as including 'fishings.' It also infefts the disponee in fishings,' and 'fishings' are mentioned in the several contracts of wadset, and dispositions of rights of reversion. No specific casus omissionis is set forth; but it is proved by the evidence of the pursuer and his agents, that they never saw the disposition of which it is sought to prove the tenor, that they have not the most remote idea how or when it was lost, and that the deed was not to their knowledge destroyed.' It is admitted that the pursuer and his authors have been in possession of the fishings for time immemorial. The Court found the casus omissionis and the tenor of the deed sufficiently proved. On the latter point the Lord President observed: Mere production of a sasine on a deed is not enough to prove the tenor of that deed; but, in this case, the sasine narrates the dispositive clause of the disposition at a time when there is no reason to suspect fraud on the part of the notary.

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CAMPBELL v. CAMPBELL.-Jan. 8.

Process-Closure on Summons and Defences.

In this case the pursuer consented to close the record upon summons and defences, and endorsed upon the latter a minute in the following terms: The pursuer consents to close the record on the summons and defences, under a denial of the statements in the defences, in so far as they are inconsistent with the pursuer's statements.' The defenders moved the Lord Ordinary (Jerviswoode) to appoint the condescendence and defences to be revised; but his Lordship refused the motion, closed the record, and appointed parties to debate. Against this interlocutor