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puzzled many legal gentlemen of a later day. of the lands which the railway had severed, Instead of writing one thousand six hundred and the grants of servitude of pipe tracks it was expressed thus, 1mo. VIC., but so many where these were necessary for the undertaking. flourishes were added that it did not look so The construction of railways, reservoirs, and plain as it does here.
other works brought much business to lawyers, In the charters at my beginning there were and altogether it was a busy time for chartuno anxious provisions, which you find in present- laries. We began to swell with importance. day charters, regarding uniformity and use of Not being a proprietor holding under the buildings, the formation of roads, the erection fetters of a strict entail, the laird could use, of boundary walls, the construction of drains and did use, the compensation which he and sewers, insurance of buildings against received for the portions taken from his estate loss by fire, etc. The laird was satisfied if pro- in effecting improvements on farm steadings, visions were inserted for payment of feu-duties, farm labourers' cottages, etc. I have heard casualties, and public burdens, and for obliging my brother chartularies, whose estates were his feuars or vassals to grind their corn at the entailed, speak about their lairds grumbling mills of his barony. Houses were built and because the compensation they were entitled to maintained as the fears had a mind; the was consigned in bank, and they were only enclosing of land did not find favour ; | allowed to draw the interest on it until they sanitation was not dreamed of.
had effected improvements on their estates, Gentlemen of the legal profession with whom and thereafter sought the authority of the it is my fate to be associated will not, I hope, Court of Session to uplift the consigned monies
I take umbrage when I state that they have, as a and apply them repayment of their rule, conservative tendencies. They fight vigor- expenditure on improvements. ously against changes in the styles of deeds Railway facilities improved trade, and the connected with land. I have observed that laird had many applications for feus for such changes contemplated by broad-minded, factories, workshops, etc. These brought far-seeing men have met with great opposition workmen to the district and the demand from those with parochial outlooks. In the for housing accommodation became clamant. march of progress such changes were inevitable, Then the laird consulted his lawyers, who but they always brought grist to the mill of were instructed to frame conditions of feuing. the lawyer, and those alterations which were Architects prepared a feuing-plan, and by and feared most, as likely to result in the loss of by the old village became transformed into business, usually increased business.
quite an important town. I was fast becoming Our estate—if I may be allowed to use the an important adjunct of the estate, for the possessive pronoun as one of the privileges of feu-duties drawn in virtue of the charters and an old and, I hope, a useful, if not a valued other documents embodied in me formed a retainer-remained intact through a long period considerable item in the rental of the estate. of years. The day, however, came when You must not run away with the idea that railway companies, water companies, and local my usefulness has been entirely utilitarian, authorities, in order to keep pace with the for I have lent my aid to spiritual as well as to social progress of the people of our country, temporal purposes, and I have had a voice in obtained powers from Parliament to acquire the education of the community with which it lands and servitudes over lands for their own has been my lot to be associated. special purposes, either compulsorily or by Before the right of appointing ministers of agreement. The laird was not anxious to sell the Established Church was finally transferred portions of his estate in which he took a great from the patrons to the congregations in the pride and a keen interest, but, seeing that he year 1874, I had occasion to record the Deeds could not stem the tide of progress, he, after of Presentation of various ministers of the various negotiations and with the help of parish where our estate lies. It used to skilled land advisers, parted with portions of interest me to listen to the letters which the his estate and granted servitudes of pipe laird or his lawyers received when the charge tracks for adequate consideration. In some became vacant. Wire-pulling”-if I may cases the consideration took the form of a be permitted a vulgarism in connection with capital sum, and in other cases an annual the secular side of a sacred profession-was feu-duty or ground-rent, being the equivalent as rife then as it is now, and applicants and of a certain percentage on the ascertained their co-adjutors were quite ingenious in price of the lands, was taken. ' Clerks copied finding reasons for the favour of the patron of into me not only the conveyances to the the church. Ministers of the present day who railway companies and other statutory bodies, are interested in the history of the church have but also the agreements as to accommodation referred to my pages in order to peruse the Deeds works provided for the convenient working of Presentation which were at one time in vogue.
When the disruption came in 1843 the laird whom the war, which had brought' sorrow to was applied to for a site for a Free Church, so many, only brought good fortune. and although he himself was a staunch adherent My pages now record conveyances of farms of the Church of Scotland he had no hesitation which the laird owns no longer. Sometimes I about feuing ground to the rival body. I wonder as I see the names of the new owners listened to many discussions at that eventful whether their names will be associated with time about the welfare of the people, and it is the lands as long as the name of the laird's interesting to record that at the present day family. I wonder, too, whether the new I hear talk, not of further disruption, but of owners will give the buildings, fences, and re-union.
drains the sympathetic treatment meted out When the Education Act of 1872 was passed to them in the past, for the lairds under whom and School Boards were constituted in each I have lived never turned down any reasonable parish, part of the estate was feued so that a proposal for repairs and improvements, and public school might be erected thereon.. the relations of landlord and tenant were
Autres temps, autres moeurs." I have lived happy indeed. Rent days and tenants' dinners to see School Boards serve their day and have passed away, and where one laird reigned pass into the realm of history. School affairs over many broad acres, there are now many are now in the hands of Education Authorities lairds and lairdships. “ Sic transit gloria constituted under the Education Act of 1918. mundi."
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 feu-duty payable periodically shall be entirely days, as each successive laird came on the swept away in a few years. The laird is scene there were no burdensome death-duties signing and I am recording receipts for the in existence. The day came, however, when compensation payable on the redemption of it was felt by statesmen that on the trans- these casual payments or agreements constitutmission of land from the dead to the living ing additional feu-duties in lieu thereof. What the state should step in and take toll. In the future will bring I do not know. It may spite of every effort to the contrary, it was be that the abolition of casualties is merely found to be necessary to borrow money to the preliminary step to the abolition of feumeet the death-duties, and in a certain sense duties themselves. If so, the back of the the proprietorship of the lands passed into feudal system will be broken indeed, and other hands, and the rents came to be applied, instead of playing an active part in the managenot only towards the expense of ordinary ment of land, I will become merely of historical estate management, but also in paying interest interest, and will be referred to by antiquarians on borrowed money. For many years this as evidence of a system laid to rest. 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, NEW SHERIFF-SUBSTITUTE FOR made a drastic change in the money-market,
LANARKSHIRE. and the rate of interest, the cost of materials and labour for building, draining and fencing, The King has been pleased on the recomthe salaries for management, legal fees, and mendation of the Secretary for Scotland to the income tax and super-tax, increased approve the appointment of Mr Marcus Dods, enormously. All these made so heavy a advocate, to the office of Sheriff-Substitute of
demand on the rental that the laird found Lanarkshire at Airdrie, in the room of Mr D. S. himself compelled to escape the burdens by Macdiarmid, advocate, who is being transferred selling many of his farms and by letting his to Glasgow as one of the Sheriffs-Substitute of castle and shootings. It was very distressing Lanarkshire. for him when circumstances compelled him to Mr Marcus Dods, B.A., is a son of the late sell farms which had been in his family for Dr Marcus Dods, who was a leader in the generations, and I can testify to the great United Free Church. Called to the Bar in 1904, regret he felt when the decision to sell was come be has had a fair amount of work to do, and has to at a meeting with his factor and his lawyer. been closely associated with the reporting of These sales were made to many tenants to decisions for the “Scots Law Times.
had a large experience of a Sheriff's work, as he office-bearers for the ensuing year, when the has been frequently called upon to discharge the appointments shown in the preceding list were duties of Interim-Sheriff. Among other publi. unanimously made. cations to his name he has edited with ability The meeting fixed the subscription to the his father's correspondence. He is also an General Funds for the year from 1st November accomplished musician. He has taken a pro- 1924 at 5s. from each member, payable on minent part in the development of vocal music or before 1st December next, in terms of the in the West End of Edinburgh, and is on the regulations of the Society. The subscription Executive Committee of the Edinburgh Musical to the Library Funds was fixed at 15s. from Festival.
those members residing or having a place of
business within three miles of the Court THE Annual General Meeting of the Society Buildings in Forfar, and 58. from all other of Procurators and Solicitors of Forfarshire, members, also payable on or before 1st DecemForfar District, was held in the Procurators' ber next, in terms of the regulations. Room, Sheriff Court Buildings, Forfar, on
Abstracts of the accounts for the past year, Thursday, 31st July 1924.
list of office-bearers, a corrected roll of members Present: Messrs A. MacHardy (Dean), J. L. as at this date, and the minutes of this meeting, Alexander, A. C. Anderson, R. N. Anderson, were ordered to be printed and circulated. W. N. Hay, J. W. Lowson, T. C. Lowson, A.
A cordial vote of thanks was awarded to Philip, G. A. Roger, D. S. Whitson, W. Whyte, the Dean for his services. A. B. Wyllie, and A. Hay (Secretary).
Thereafter a meeting of the Agents in the The secretary intimated that apologies for Forfar District of the Court, enrolled in the absence had been received from the Vice- Roll of the Court, was held, in terms of an Dean and Messrs T. Middleton, R. F. Myles, order by Sheriff MacRobert, when it was and Wm. Ogilvy, jun.
resolved to nominate the following gentlemen The Dean made a feeling and appropriate to act as Procurators for the Poor for one reference to the tragically sudden and lamented year from 10th August 1924, within the following death of Mr John Freer Myles, solicitor, Forfar, divisions respectively of the said district, viz. : whereby a promising career had been prema- For Forfar Division.—Messrs G. A. Roger, W. turely closed.
Whyte, and A. B. Wyllie (the last - named The Dean having made a sympathetic allusion gentleman to act only as Reporter on Remits as to the indisposition of Mr Davidson, the Vice- to probabilis causa litigandi). For Montrose Dean, the hope was expressed that he would Division.-Mr James Cumming. For Brechin soon recover his wonted good health.
Division.—Mr James Scott. For Kirriemuir With regard to the question of remuneration Division.-Mr R. A. Smith. of Procurators for the Poor, the secretary gave the purport of a conversation he had with the president and the secretary of the Incorporated WE regret to record the death on 1st Society after the meeting of that Society in September of Mr Archibald George Brown, Dundee in October last. After discussion it W.S., of Garscube Terrace, Edinburgh. Mr was unanimously resolved that a Bill should be Brown, who was seventy-four years of age, drafted and forwarded to the Incorporated was educated at Elgin Academy. From Elgin Society for approval and for suitable action he went to Edinburgh, where he served a lawwhen the terms of the Bill have been arranged. agency apprenticeship with the late Mr AlexMessrs R. Freer Myles, D. S. Whitson, and A. B. ander Morrison, and was afterwards indentured Wyllie were appointed as a committee to frame to the late Sir Thomas Dawson Brodie, Bart., the Bill-Mr Myles, convener.
W.S. He was admitted into the Society of It was remitted to the Dean's Council to Writers to the Signet in January 1890. He consider as to suitably celebrating the Pro- became a partner of the firm of Messrs John fessional Jubilee of Mr Frederick F. Macdonald, C. Brodie & Sons in January 1892, and a Arbroath, which falls on 28th May next, and director of the Carron Co., Carron Works, to make all necessary arrangements.
Falkirk, in October 1900, having been secretary The treasurer's accounts for the year ended to the company since October 1896. These :30th June last, which had previously been appointments he held until his death. He was audited by the Dean's Council, were sub- one of the original members of the Northern mitted to the meeting and approved of-the Club, and he was also instrumental in helping amount of the General Funds of the Society to found the Hospital for Diseases of Women being £4, lls. 6d., and the amount of the in Archibald Place, Edinburgh. Mr Brown is Library Funds (including the Vice-Dean's survived by a widow, two sons, and three Endowment) being £131, Os. 10d.
daughters. His brother, Mr Henry Hilton The meeting then proceeded to the election of Brown, is Procurator-Fiscal for Midlothian.
litigation, and of these the greatest is the A“ DUSTER” IN THE PARLIAMENT
In considering the reduction of any one of (From a Correspondent.)
these three the question of an improvement in
procedure arises, and it is to this end that a [In the case of “Vitruvia” S.S. Co., reported in doubt has been cast on the value of the “ Closed the “ Scots Law Times" of 26th January 1924, the Record.” 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 ficially it sounds quite favourable from the been brought up in a school in which a man who lawyer's point of view, but are we not sickening claims damages is expected to come into Court the “ goose" by an overdose of methods which with every form of proof and ready to meet every the client is quick to deride ? In any case, is form of objection."]
it in accord with modern business methods ?
Can it be justified to a business man as the best To attack the sanctity of the “ Closed Record” way to get a cheap and quick decision ? Henry is almost as serious an outrage on the canons of Ford tells us that when his business failed to sound legal practice as to suggest the abolition pay he decreased the price of his cars and more of the Lord President himself. Nevertheless than made up the deficit by an enormously it is a matter for consideration whether our increased turnover. That is what we want to procedure would not be improved, accelerated, achieve in our Courts. and cheapened by adopting some less rigid Then, again, it is open to doubt whether on method of pleading.
the whole we gain by the Procedure Roll The state of the Rolls in our Supreme system, which is largely based on the Closed Scottish Court is not one that can be regarded Record idea. Each side goes eagerly to the with equanimity by those who follow the Procedure Roll and one is successful. The practice of the law and desire to see our Courts client is told that the other man's case has been maintained as the proper forum for settlement thrown out without proof and by skilful of disputes. It is not improbable that the argument. There is a champagne-all-round Government might take advantage of the present sort of feeling. shortage of work to reduce the number of But then, later, it transpires that the Division judges. No one who is interested can afford, is to be consulted and the whole thing is therefore, to reject without discussion any thrashed out again. This time a proof before
which the number of cases may be answer is allowed, and back we are where we increased, and the following observations are started with the clients in the aggregate offered by one who has given some considerable perhaps £150 to £200 poorer and their case no attention to the causes that have led to the further towards a decision. present situation.
The Closed Record is largely to blame. If One must concede that in some measure the there was no Closed Record there could be no lack of cases is due to the stagnant industrial Procedure Roll discussion, at least not in anysituation, and yet there are many who maintain thing like the same number of cases. that when our industries are busy people have Even apart from the Procedure Roll disno time to fight, nor are they so inclined to cussion the cost of the Closed Record is probably dispute over sums which, in quieter times, seem £50 per client, having regard to the careful to be of more importance. But on the whole, preparation of
But on the whole, preparation of adjustments, the long, and having regard to the extent which compensation solemn consultations over this and that phrase, cases figure in the Rolls the large reduction in the revisal by senior counsel, and then the repetithe number of men employed must have its tion of the same performance when the other effect on litigation.
side present a lengthy adjustment on somewhat The present scarcity of litigants, however, new lines. And what is the result of it all ? is for the most part due to the delay, worry, No matter what care and brains have been and expense associated with Court of Session expended, some Inner House judge is certain
Of course it's probably my own fault, preserve the finality of lower Courts on matters but really, Mr. the pleadings are quite of fact, but where evidence has been recorded unintelligible to me."
let it go to Edinburgh along with the Stated The people of Scotland are proud of its Case. A necessary corollary to this would be Parliament House and all it stands for in the abolition of printing. national and judicial history, but if it is to be In the second place, the unreasonable preserved in this commercial age its methods resistance to typed documents and rigid. should be modernised so far as possible, especially adherence to printing has only been partially where this can be done without destroying its modified, and that after a lengthy struggle. general atmosphere and traditions.
This rule is responsible for a considerable It is not proposed to attempt in these observa- reduction in the number of appeals and should tions to frame a new form of procedure, but if be entirely swept away. In the third place, the matter were taken up in some competent as was advocated by a correspondent a few quarter a much more economical method might weeks ago, the reading of judgments should be be found, say, on the basis of a defender simply dispensed with or at least confined to Saturday lodging a note of his pleas. When these were mornings, and then only in cases where questions lodged there need be no continuation but a diet for discussion arise out of the particular judgof proof could be fixed at once.
ment. In the fourth place, the dice are too The Adjustment Roll would be wholly avoided. heavily loaded in favour of the very rich and The Procedure Roll would be resorted to only the very poor.
only the very poor. The ordinary man, if fighting when there was no dispute on the facts. Look- a big company or corporation or Government ing to the fact that by “colouring " the con- Department, is up against too much. In descendence it is possible in the vast majority particular in Revenue cases it is hard that of cases to secure a proof, would it really be an where a man wins his case before the Special Comobjection if the method proposed resulted in missioners (who are virtually Inland Revenue some cases going to trial which might have been officials) he should have to fight at great expense dismissed on relevancy?
to maintain his judgment, which perhaps only The effect of such procedure would have the involves £20 or £30. In such a case either his obvious advantage of shortening and cheapen-expenses should be partially paid or at least ing preliminary procedure, but it would also he should be protected by statute from liability have the greater advantage of eliminating the to pay expenses to the Inland Revenue since uncertainties, disappointments, and changing all Revenue appeals are more or less test cases arrangements involved in a Lord Ordinary for general information and application. Lastly, taking up cases on the Procedure Roll without the expenses of an appeal to the House of any definite date attached to each case. This Lords are so high that appeals are rare. The would avoid a great deal of wasted time, even deposit and security required are reasonable allowing for vacant dates caused by settlement enough and act as a sufficient safeguard against of cases set down for proof.
speculative appeals, but the long printed case Litigation is necessarily expensive since the specially prepared, with the specially printed full time of highly skilled and expensively appendices, are entirely unnecessary and should educated men is employed, but much could be be dispensed with. In none of the eleven done, perhaps not to popularise” it, but at House of Lords appeals with which the writer least to render a resort to the Courts less of a has been connected had the ” been read gamble at which a small fortune may be lost prior to the hearing since the elements of the in expenses.
dispute were obviously still unknown to their In the first place, the Court appear frequently Lordships. Nor is the "case" read or referred to act without the least regard to the expenses to during the debate. The documents as consequential on their orders. For example, prepared for the Court of Session are in a a case is fully heard and counsel fully paid perfectly convenient form and could be transwhen the Court perhaps decide that it must be mitted to London for use there. A saving of reheard before seven judges. The litigants are £100 to £200 would be effected in this manner, not consulted and are forced to pay duplicate and even more in some cases. 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 ünimportant 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