puzzled many legal gentlemen of a later day. Instead of writing one thousand six hundred it was expressed thus, 1mo. VIc., but so many flourishes were added that it did not look so plain as it does here.

of the lands which the railway had severed, and the grants of servitude of pipe tracks where these were necessary for the undertaking. The construction of railways, reservoirs, and other works brought much business to lawyers, and altogether it was a busy time for chartu

In the charters at my beginning there were no anxious provisions, which you find in present-laries. We began to swell with importance. day charters, regarding uniformity and use of buildings, the formation of roads, the erection of boundary walls, the construction of drains and sewers, insurance of buildings against loss by fire, etc. The laird was satisfied if provisions were inserted for payment of feu-duties, casualties, and public burdens, and for obliging his feuars or vassals to grind their corn at the mills of his barony. Houses were built and maintained as the feuars had a mind; the enclosing of land did not find favour; sanitation was not dreamed of.

Gentlemen of the legal profession with whom it is my fate to be associated will not, I hope, take umbrage when I state that they have, as a rule, conservative tendencies. They fight vigorously against changes in the styles of deeds connected with land. I have observed that such changes contemplated by broad-minded, far-seeing men have met with great opposition from those with parochial outlooks. In the march of progress such changes were inevitable, but they always brought grist to the mill of the lawyer, and those alterations which were feared most, as likely to result in the loss of business, usually increased business.

Our estate-if I may be allowed to use the possessive pronoun as one of the privileges of an old and, I hope, a useful, if not a valued retainer—remained intact through a long period of years. The day, however, came when railway companies, water companies, and local authorities, in order to keep pace with the social progress of the people of our country, obtained powers from Parliament to acquire lands and servitudes over lands for their own special purposes, either compulsorily or by agreement. The laird was not anxious to sell portions of his estate in which he took a great pride and a keen interest, but, seeing that he could not stem the tide of progress, he, after various negotiations and with the help of skilled land advisers, parted with portions of his estate and granted servitudes of pipe tracks for adequate consideration. In some cases the consideration took the form of a capital sum, and in other cases an annual feu-duty or ground-rent, being the equivalent of a certain percentage on the ascertained price of the lands, was taken. Clerks copied into me not only the conveyances to the railway companies and other statutory bodies, but also the agreements as to accommodation works provided for the convenient working

Not being a proprietor holding under the fetters of a strict entail, the laird could use, and did use, the compensation which he received for the portions taken from his estate in effecting improvements on farm steadings, farm labourers' cottages, etc. I have heard my brother chartularies, whose estates were entailed, speak about their lairds grumbling because the compensation they were entitled to was consigned in bank, and they were only allowed to draw the interest on it until they had effected improvements on their estates, and thereafter sought the authority of the Court of Session to uplift the consigned monies and apply them in repayment of their expenditure on improvements.

Railway facilities improved trade, and the laird had many applications for feus for factories, workshops, etc. These brought workmen to the district and the demand for housing accommodation became clamant. Then the laird consulted his lawyers, who were instructed to frame conditions of feuing. Architects prepared a feuing-plan, and by and by the old village became transformed into quite an important town. I was fast becoming an important adjunct of the estate, for the feu-duties drawn in virtue of the charters and other documents embodied in me formed a considerable item in the rental of the estate.

You must not run away with the idea that my usefulness has been entirely utilitarian, for I have lent my aid to spiritual as well as to temporal purposes, and I have had a voice in the education of the community with which it has been my lot to be associated.

Before the right of appointing ministers of the Established Church was finally transferred from the patrons to the congregations in the year 1874, I had occasion to record the Deeds of Presentation of various ministers of the parish where our estate lies. It used to interest me to listen to the letters which the laird or his lawyers received when the charge became vacant. Wire-pulling "-if I may be permitted a vulgarism in connection with the secular side of a sacred profession-was as rife then as it is now, and applicants and their co-adjutors were quite ingenious in finding reasons for the favour of the patron of the church. Ministers of the present day who are interested in the history of the church have referred to my pages in order to peruse the Deeds of Presentation which were at one time in vogue.

When the disruption came in 1843 the laird was applied to for a site for a Free Church, and although he himself was a staunch adherent of the Church of Scotland he had no hesitation about feuing ground to the rival body. I listened to many discussions at that eventful time about the welfare of the people, and it is interesting to record that at the present day I hear talk, not of further disruption, but of re-union.

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whom the war, which had brought sorrow to so many, only brought good fortune.

My pages now record conveyances of farms which the laird owns no longer. Sometimes I wonder as I see the names of the new owners whether their names will be associated with the lands as long as the name of the laird's family. I wonder, too, whether the new owners will give the buildings, fences, and drains the sympathetic treatment meted out to them in the past, for the lairds under whom I have lived never turned down any reasonable proposal for repairs and improvements, and the relations of landlord and tenant were happy indeed. Rent days and tenants' dinners have passed away, and where one laird reigned over many broad acres, there are now many lairds and lairdships. Sic transit gloria

mundi."

tr

feu-duty payable periodically shall be entirely swept away in a few years. The laird is signing and I am recording receipts for the compensation payable on the redemption of these casual payments or agreements constituting additional feu-duties in lieu thereof. What the future will bring I do not know. It may be that the abolition of casualties is merely the preliminary step to the abolition of feuduties themselves. If so, the back of the feudal system will be broken indeed, and instead of playing an active part in the management of land, I will become merely of historical interest, and will be referred to by antiquarians as evidence of a system laid to rest.

When the Education Act of 1872 was passed and School Boards were constituted in each | parish, part of the estate was feued so that a public school might be erected thereon. Autres temps, autres mœurs." I have lived to see School Boards serve their day and pass into the realm of history. School affairs are now in the hands of Education Authorities constituted under the Education Act of 1918. Some years ago a great change came over I still exist, but I have lost touch with the land the lands for whose records I am to a large sold. I record changes of ownership in the land extent responsible. Up to this point I have which was feued, for the superiorities were not tried to convey to you the nature of my duties, sold. I had hoped that they would remain in and despite the inroads made by feus, railways, the family and I was not disappointed. But reservoirs, etc., our estate remained practically even in the feus a great change is taking place, intact. These inroads were all helpful to the for Parliament has decreed that all casualties community, and one felt that one's estate was or casual payments or fines and duplications of serving a useful public purpose. In my early | days, as each successive laird came on the scene there were no burdensome death-duties in existence. The day came, however, when it was felt by statesmen that on the transmission of land from the dead to the living the state should step in and take toll. In spite of every effort to the contrary, it was found to be necessary to borrow money to meet the death-duties, and in a certain sense the proprietorship of the lands passed into other hands, and the rents came to be applied, not only towards the expense of ordinary estate management, but also in paying interest on borrowed money. For many years this interest, being at a low rate in consequence of the security being first-class, was not felt to be too irksome. The great war, however, made a drastic change in the money-market, and the rate of interest, the cost of materials and labour for building, draining and fencing, the salaries for management, legal fees, and the income tax and super-tax, increased enormously. All these made so heavy a demand on the rental that the laird found himself compelled to escape the burdens by selling many of his farms and by letting his castle and shootings. It was very distressing for him when circumstances compelled him to sell farms which had been in his family for generations, and I can testify to the great regret he felt when the decision to sell was come to at a meeting with his factor and his lawyer. These sales were made to many tenants to

NEW SHERIFF-SUBSTITUTE FOR
LANARKSHIRE.

The King has been pleased on the recommendation of the Secretary for Scotland to approve the appointment of Mr Marcus Dods, advocate, to the office of Sheriff-Substitute of Lanarkshire at Airdrie, in the room of Mr D. S. Macdiarmid, advocate, who is being transferred to Glasgow as one of the Sheriffs-Substitute of Lanarkshire.

Mr Marcus Dods, B.A., is a son of the late Dr Marcus Dods, who was a leader in the United Free Church. Called to the Bar in 1904, he has had a fair amount of work to do, and has been closely associated with the reporting of decisions for the "Scots Law Times. He has

66

litigation, and of these the greatest is the last.

In considering the reduction of any one of these three the question of an improvement in procedure arises, and it is to this end that a doubt has been cast on the value of the "Closed Record."

[In the case of " Vitruvia" S.S. Co., reported in the "Scots Law Times" of 26th January 1924, the House of Lords remitted the case back to the Court A necessary part of the Closed Record system of Session in order that amendments on the Record is the recurrence of the case on the Roll perhaps might be made, and a further proof heard on the three to four times even without any question ground that a new ground of defence had emerged of appeal. Consider what this involves. Preat the proof for which there was no Record. paration, adjustments, correspondence thereLord Phillimore, in a somewhat reluctant acquies-anent with counsel, local agents, and the other cence, observed: "Your Lordships are under the side, attendances at Court, fees to counsel, guidance of two noble and learned Lords who are culminating in the Procedure Roll discussion, such authorities on Scottish procedure that I must, and probably a postponement to suit somebody, of course, concur with anything that they suggest. followed by a return of papers and a new I confess that my withers would have been un-instruction fee to another counsel. Superwrung by the comments in this case. I have been brought up in a school in which a man who claims damages is expected to come into Court with every form of proof and ready to meet every form of objection."]

To attack the sanctity of the "Closed Record" is almost as serious an outrage on the canons of sound legal practice as to suggest the abolition of the Lord President himself. Nevertheless it is a matter for consideration whether our procedure would not be improved, accelerated, and cheapened by adopting some less rigid method of pleading.

The state of the Rolls in our Supreme Scottish Court is not one that can be regarded with equanimity by those who follow the practice of the law and desire to see our Courts maintained as the proper forum for settlement of disputes. It is not improbable that the Government might take advantage of the present shortage of work to reduce the number of judges. No one who is interested can afford, therefore, to reject without discussion any means by which the number of cases may be increased, and the following observations are offered by one who has given some considerable attention to the causes that have led to the present situation.

One must concede that in some measure the lack of cases is due to the stagnant industrial situation, and yet there are many who maintain that when our industries are busy people have no time to fight, nor are they so inclined to dispute over sums which, in quieter times, seem to be of more importance. But on the whole, having regard to the extent which compensation cases figure in the Rolls the large reduction in the number of men employed must have its effect on litigation.

The present scarcity of litigants, however, is for the most part due to the delay, worry, and expense associated with Court of Session

ficially it sounds quite favourable from the lawyer's point of view, but are we not sickening the "goose" by an overdose of methods which the client is quick to deride? In any case, is it in accord with modern business methods ? Can it be justified to a business man as the best way to get a cheap and quick decision? Henry Ford tells us that when his business failed to pay he decreased the price of his cars and more than made up the deficit by an enormously increased turnover. That is what we want to achieve in our Courts.

Then, again, it is open to doubt whether on the whole we gain by the Procedure Roll system, which is largely based on the Closed Record idea. Each side goes eagerly to the Procedure Roll and one is successful. The client is told that the other man's case has been thrown out without proof and by skilful argument. There is a champagne-all-round sort of feeling.

But then, later, it transpires that the Division is to be consulted and the whole thing is thrashed out again. This time a proof before answer is allowed, and back we are where we started with the clients in the aggregate perhaps £150 to £200 poorer and their case no further towards a decision.

If

The Closed Record is largely to blame. there was no Closed Record there could be no Procedure Roll discussion, at least not in anything like the same number of cases.

Even apart from the Procedure Roll discussion the cost of the Closed Record is probably £50 per client, having regard to the careful preparation of adjustments, the long and solemn consultations over this and that phrase, the revisal by senior counsel, and then the repetition of the same performance when the other side present a lengthy adjustment on somewhat new lines. And what is the result of it all? No matter what care and brains have been expended, some Inner House judge is certain

66.

to say,
Of course it's probably my own fault,
but really, Mr. . the pleadings are quite
unintelligible to me."

The people of Scotland are proud of its Parliament House and all it stands for in national and judicial history, but if it is to be preserved in this commercial age its methods should be modernised so far as possible, especially where this can be done without destroying its general atmosphere and traditions.

It is not proposed to attempt in these observations to frame a new form of procedure, but if the matter were taken up in some competent quarter a much more economical method might be found, say, on the basis of a defender simply lodging a note of his pleas. When these were lodged there need be no continuation but a diet of proof could be fixed at once.

The Adjustment Roll would be wholly avoided. The Procedure Roll would be resorted to only when there was no dispute on the facts. Looking to the fact that by "colouring" the condescendence it is possible in the vast majority of cases to secure a proof, would it really be an objection if the method proposed resulted in some cases going to trial which might have been dismissed on relevancy?

The effect of such procedure would have the obvious advantage of shortening and cheapening preliminary procedure, but it would also have the greater advantage of eliminating the uncertainties, disappointments, and changing arrangements involved in a Lord Ordinary taking up cases on the Procedure Roll without any definite date attached to each case. This would avoid a great deal of wasted time, even allowing for vacant dates caused by settlement of cases set down for proof.

Litigation is necessarily expensive since the full time of highly skilled and expensively educated men is employed, but much could be done, perhaps not to "popularise" it, but at least to render a resort to the Courts less of a gamble at which a small fortune may be lost in expenses.

preserve the finality of lower Courts on matters of fact, but where evidence has been recorded let it go to Edinburgh along with the Stated Case. A necessary corollary to this would be the abolition of printing.

In the second place, the unreasonable resistance to typed documents and rigid. adherence to printing has only been partially modified, and that after a lengthy struggle. This rule is responsible for a considerable reduction in the number of appeals and should be entirely swept away. In the third place, as was advocated by a correspondent a few weeks ago, the reading of judgments should be dispensed with or at least confined to Saturday mornings, and then only in cases where questions for discussion arise out of the particular judgment. In the fourth place, the dice are too heavily loaded in favour of the very rich and the very poor. The ordinary man, if fighting a big company or corporation or Government Department, is up against too much. In particular in Revenue cases it is hard that where a man wins his case before the Special Commissioners (who are virtually Inland Revenue officials) he should have to fight at great expense to maintain his judgment, which perhaps only involves £20 or £30. In such a case either his expenses should be partially paid or at least he should be protected by statute from liability to pay expenses to the Inland Revenue since all Revenue appeals are more or less test cases for general information and application. Lastly, the expenses of an appeal to the House of Lords are so high that appeals are rare. deposit and security required are reasonable enough and act as a sufficient safeguard against speculative appeals, but the long printed" case specially prepared, with the specially printed appendices, are entirely unnecessary and should be dispensed with. In none of the eleven House of Lords appeals with which the writer has been connected had the case been read prior to the hearing since the elements of the dispute were obviously still unknown to their Lordships. Nor is the "case" read or referred to during the debate. The documents as prepared for the Court of Session are in a perfectly convenient form and could be transmitted to London for use there. A saving of £100 to £200 would be effected in this manner, and even more in some cases.

The

In the first place, the Court appear frequently to act without the least regard to the expenses consequential on their orders. For example, a case is fully heard and counsel fully paid when the Court perhaps decide that it must be reheard before seven judges. The litigants are not consulted and are forced to pay duplicate fees for the second hearing. Surely the judges Under present circumstances, if an ordinary who have heard the case could lay it before commercial firm undertakes one Court of their colleagues, and the opinion of the whole Session litigation, it usually satisfies the partners Court could thereafter be delivered. Or again, of the firm during their lifetime, and in future after a full hearing on appeal a remit is made disputes some other solution is found. Fifty back to an inferior Court for some more or less per cent. more Sheriff Court cases would reach unimportant rectification as in a stated case. the High Court if the expenses involved were This procedure is a relic of the time when short-not so heavy and so disproportionate to the hand and typing were unknown. By all means amount at stake. The modification of printing