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recently permitted will probably help this aspect dies and the creditor lodges a claim with the executors of the difficulty, but much could yet be done. of the deceased. If the executors pay on the docu
Let us have cheap litigation and more of it. ment of debt they are liable to a penalty of £10 Let the question of reform be honestly taken (Stamp Act, 1891, section 38 (1)) in addition to their up by the Court of Session, and an endeavour liability to the beneficiaries in the deceased's estate
for paying on an improper document of debt. In made to modernise some of the methods which
cases where there are minor beneficiaries it is not at present make only for delay and expense. possible to get the binding consents of all interested,
even although there is no dubiety as to the debt being morally due, so the executors cannot, in such circumstances, pay the debt with safety to them. selves.
Should the creditor attempt to constitute his claim Letter to the Editor.
he cannot found on or refer to the note, as section
38 (1) of the Stamp Act does not allow him to make 29th August 1924.
the note available for any purpose whatever. He Dear Sir,
can only prove loan by writ or oath of the debtor An Injustice of the Stamp Acts.
(see authorities referred to in Gloag on Contract,
p. 316). He cannot refer to the debtor's oath if the As is only to be expected, the Stamp Acts are debtor is dead. He is, therefore, confined to the framed in the interests of the State. The interests of debtor's writ, which as a rule is difficult to obtain. others are not considered, but in many cases, in The only point in the creditor's favour is that the endeavouring to strengthen the position of the writ need not be holograph or tested (Paterson v. State by penalising those who have not acted in Paterson, 1897, 25 R. 144). strict conformity with the Stamp Acts, the opposite The result often is that, because of the strictness result is achieved and the State loses money which of the Stamp Acts, a creditor is prevented from could easily be collected were these Acts less strict. recovering a just debt. It seems a most inequitable No sympathy need be wasted on those who deliber- state of affairs, and is not at all necessary for the ately evade payment of lawful stamp duties, and protection of the Revenue. If after-stamping the writer makes no attempt to defend them; but, on subject to a penalty of, say 25 per cent., of the the other hand, it is thought that gross injustice principal sum contained in the note was allowed, it is, in many instances, done to those who have would be sufficient to prevent wilful breach of the inadvertently been guilty of a breach of the Stamp law, and would, at the same time, open the door Acts.
to those who had inadvertently failed to comply Let us take a typical example. A borrows from with the provisions of the Stamp Acts. Thus would B the sum of £100, and hands B what is considered the State be protected and justice done to the by both to be mere acknowledgment for the money, individual.--Yours faithfully, The document reads as follows: Received from B
ROBERT B. ALLAN. the sum of One hundred pounds to be repaid when asked.” It is signed by A over a twopenny postage stamp. A thinks he has granted a receipt for the money, and B thinks that is what he has received. It is firmly established law, however, that such a document is a promissory note and ought to have MR GEORGE B. CHALK, B.L., solicitor, 122 been stamped as such (Alexander v. Alexander, 1830: Wellington Street, Glasgow, C2, informs us 8 S. 602; M'Intosh v. Stewart, 1830, 8 §. 739 ; that as a result of the death of Bailie Thomas Pirie's Reps. v. Smith's Exrs. 1833, 11 S: 473; H. Paterson, who was a partner of the firm of Haddin V. M'Ewan, 1838, 16 S. 31; Milne v. Donaldson, 1852, 14 D. 849; M'Cubbin v. Stephen, Mackay, Paterson & Young, writers,
Glasgow, 1856, 18 D. 1224 ; Blyth v. Forbes, 1879, 6 R. 1102; it has been decided between Mr David N. Dallance v. Forbes, 1879, 6 R. 1099; M'Farlane v. Mackay, the surviving partner of that firm, and Johnston, 1864, 2 M. 1210 ; Scott's Trs. v. Garden's himself to amalgamate their businesses. Messrs Trs., 1905, 12 S.L.T. 724). The English decisions Mackay, Paterson & Young's firm was estabare to the same effect.
lished twenty years ago.
The combined A promissory note, whether payable on demand
businesses will be carried at 144 St or otherwise, requires to be stamped ad valorem (Oettinger v. Cohn, (1908] 1 K.B. 582), although there Vincent Street, Glasgow, C2, under the firm was at one time some doubt about this, and there is name of Mackay, Paterson & Chalk. a Sheriff Court decision to the contrary (Brown & Co.' Seqn., 10 Sheriff Court Reports, 328).
A promissory note cannot be after-stamped (Stamp Mr J. DUNN RUSSELL, County Buildings, Act, 1891, section 37 (2)), except if stamped with Airdrie, has assumed his son, William Paterson impressed stamp of sufficient amount but improper Russell
, LL.B., as a partner in the businesses denomination, in which case it can be stamped with the proper stamp on payment of the duty, and a carried on by him at County Buildings, Airdrie, penalty of 408. if the note be not then payable, and 505 Main Street, Bellshill
. The businesses or £10 if so payable (Stamp Act, 1891, section 376).
will be carried on under the firm name of J. Dunn Trouble usually arises in practice when the debtor Russell & Son.
WE regret to record that Mr William Duncan The words “ Kernut Margarine were printed Patrick, Joint County Clerk of Fife, has died at in two lines in capital block letters, the rehis residence in Cupar Born seventy-six years maining words being printed below in small ago, Mr Patrick had a long and strenuous letters in a separate line. The name“ Kernut " career. Following on a legal training in Cupar had been approved by the Board of Agriculture and Edinburgh, he passed as a procurator on and Fisheries for use in combination with the 17th January 1872, and then obtained an word“ margarine.” The magistrate who tried appointment in the law office of Messrs the case found the appellant guilty Towers-Clark, Robertson & Ross, Glasgow. vention of section 8 of the Butter and Margarine He afterwards returned to Cupar, and in Act, 1907, in that he did, in a wrapper enclos1875 joined his father, who had held the ing margarine, describe it by a name other office of Clerk of Supply since 1854. In than margarine,” or a name combining the 1879 the Road Act abolishing tolls and word“ margarine with a fancy or other descripentrusting elected boards with the manage- tive name approved by the Board of Agriculture ment of the roads came into operation, and Mr and Fisheries." Held that the words "' churned Patrick was appointed joint clerk for the county with fresh milk” were not part of a fancy or with his father. His father died in 1887. other descriptive name forbidden by law and In 1890 Mr W. D. Patrick became the first that the conviction
wrong. Maypole county clerk under the Local Government Act Dairy Co. Ltd. v. Patterson (1923, J.C. 85) of 1889. He was married in 1875, and is sur- distinguished.-K.B. Div. (Lord Hewart C.J., vived by two daughters.
Shearman and Roche JJ.).-1st May 1923.
THE death occurred in a nursing home in Glasgow of Mr John Galbreath, solicitor. Mr
CURRENT LAW LITERATURE. Galbreath, who was well known in local circles, took an active interest in political affairs. He The Juridical Review. Vol. XXXVI., No. 3. W. was secretary of the Kelvingrove Unionist Green & Son Ltd.
Price 5s. Association since its formation on the redis
Supplement to The Rent (Restrictions) Acts, 1920tribution of the Parliamentary divisions of the
1923, including the Prevention of Eviction Act, city, and he acted successively as agent for
1924. By Theodore John Sophian, B.A. (Oxon). Sir John M. MacLeod, Bt., the late Mr William
Stevens & Sons Ltd.
Price 28. 6d. Hutchison, and for the present member for the division, Captain Elliot. For a number of Handbook of Foreign Legal Procedure. By Heinr. A.
Möller, Advocate in the Supreme Court of Copenyears he was secretary of the Junior Imperialist
hagen, and Dr Harry Wolff. Stevens di Sons Union, and was a leading member of the
Price 20s. Parliamentary Debating Society. Mr Galbreath had been in practice as a solicitor for Income Tax. A clear, concise, and complete guide, over twenty years. He was a native of Greenock, written in simple language. By Ronald Staples, and was about fifty years of age.
of the Inland Revenue Department. Third Edition, 1924-1925. E. J. Larby Ltd.
Price 28. 6d. Law for Journalists. By Charles Pilley, Barrister-at
Law. Sir Isaac Pitman & Sons Ltd. Price 58. DECISIONS IN THE ENGLISH
May's Parliamentary Practice. Thirteenth Edition.. COURTS.
By Sir T. Lonsdale Webster, K.C.B., Clerk of the
House of Commons. Butterworth & Co.
CRIMINAL LAW-STATUTORY OFFENCES-SALE OF MARGARINE- FANCY OR OTHER DESCRIPTIVE NAME APPROVED BY THE BOARD OF AGRICULTURE
SPECIAL NOTICE. AND FISHERIES -BUTTER AND MARGARINE ACT, The Editor will welcome legal problems or 1907 (7 EDW. VII. CAP. 21), SECTION 8.-The questions of interest from subscribers, and will, appellant sold to the respondent 1 lb. of wherever possible, arrange for articles thereon by Kernut margarine wrapped in two wrappers. experts. Interesting points are continually cropping The outside wrapper had the word " Mar- up in practice, and there is at present no means garine "printed thereon in one half-inch block other than that now suggested whereby a lawyer in
one part of Scotland may benefit at a saving of letters. The inner wrapper had printed thereon time and money from the experience of a lawyer in “Kernut margarine churned with fresh milk." another part who has dealt with a similar problem.
THE RIGHTS OF HEREDITARY
means casual payments and does not signify
casualties of superiority KEEPERS OF ROYAL PARKS.
In 1690 the Earl of Haddington acquired The royal patrimonial estate consisted of right to the office by adjudication from the family lands, castles, strongholds, and palaces through of Hamilton and thereafter obtained from out the country, and in ancient times these William and Mary a Crown charter destining were often dissipated and transferred from the the office to the heirs of entail of the honours Crown, sometimes from necessity and sometimes and estates of Haddington. in a spirit of profusion (Bell's Principles, 10th The rock in the park was of a nature well edition, section 672). In Scotland various adapted for paving streets and forming roads, grants were made by the Crown of heritable and before the creation of the office of keeper keeperships of royal palaces, forests, and parks, the Magistrates of Edinburgh were allowed by such as a grant to the Duke of Hamilton of the Kings of Scotland the privilege of taking the keepership of the Royal Palace of Holyrood, stones from the park for the purpose of causeto the Earl of Moray of the keepership of the waying the streets of the city. Payment for the Royal Forest of Glenfinlas in Perthshire, and to stones was apparently made by the City Sir James Hamilton of the keepership of the Treasurer. The privilege was continued after Royal Park of Holyrood. No question-of any Sir James Hamilton's appointment and his magnitude at least--as to the rights of such consent was obtained, but it does not appear keepers appears to have arisen until early in whether payment for stones taken was made to the nineteenth century, when there was a him or to the Crown. protracted litigation between the Officers of The privilege given to the city of Edinburgh State, as representing the Crown, and the Earl would seem to have been the cause of the of Haddington, who succeeded Sir James trouble between the Crown and the keeper, and Hamilton or his descendants in the keepership to lead, as years rolled on, to a misconception of Holyrood Park. The case went to the on the part of the keeper or his advisers of House of Lords, and is reported in 2 Wilson and the limited right of keepership granted by the Shaw 468, and 5 Wilson and Shaw 570. The Crown. It was evidently assumed that the reports contain statements of the law defining keeper was heritable proprietor of the park and the rights of keepers of royal parks which are entitled to lease the stone thereon, for various not to be found at any length elsewhere, and I leases were granted, including leases to the propose to summarise the case and the opinions Magistrates of Edinburgh and to certain road of the judges in the hope that such a summary trustees, empowering the lessees to open and will be both of general and of legal interest. work stone quarries in any part of the park and My excuse for doing so is that comparatively to sell and dispose at pleasure of the stones won. few agents may have had occasion to ascertain In 1815 quarrying operations were commenced the rights of hereditary keepers of royal parks and continued on so large a scale as to attract or forests.
the attention of those in whose care the Crown's The point at issue was whether the hereditary property was placed. The Officers of State keeper or ranger of Holyrood Park, in which alleged that from 1815 to 1819 between 46,000 are situated Arthur's Seat and the bold and and 60,000 tons of rock were carried away by precipitous line of rocks known as Salisbury the keeper of the park without the consent of Crags, was entitled to quarry and dispose of the Crown. They also alleged that in 1818 the stones of the crags, etc., and incidentally 2920 cubic yards were quarried from Salisbury thereby disfigure the crags and injure the Crags for the purpose of making Regent Road. beauty and amenity of the palace and of the When one walks along the base of the crags city of Edinburgh.
one observes at the southern end thereof the Prior to 1646 it does not appear that there vacant space where quarrying operations have was any hereditary keeper of the park, the been carried on. palace having been, till the time of James VI., The Court of Session were in sympathy with the usual place of residence of the Kings of Lord Haddington, and were of opinion that he Scotland and the park being under the was entitled to quarry stones by virtue of immediate care of the household officers. ancient usage. The Court did not state that In that year, however, Charles I., in considera- he had an unlimited right so to do, but the view tion it was said of a sum of £10,000 given to was expressed that he had a right to quarry help him in his necessities during the Civil War, stones so long as the right was not abused. conferred upon Sir James Hamilton and his There was a lack of finality in the judgment of descendants the office of heritable keeper of the Court of Session, and the position of the the royal park, with all the fees, casualties, dues, Crown and the keeper was not well defined. and privileges thereof. It may be observed No one could say when use ended and abuse that the word “casualties" in this connection began. On appeal, however, the House of
Lords reversed the judgment of the Court of versity of Edinburgh he was admitted a memSession and declared in unqualified terms that ber of the Scottish Bar in 1895. As a pleader the keeper was not entitled to work quarries in he has been markedly successful, particularly the park to any extent.
in jury trials. From 1911 till 1917 he was an The law on the subject may be summarised Advocate-Depute. thus : The King's grant conveys no feudal or Mr Charles H. Brown, M.A., LL.B., K.C., perpetual right of property in the soil, which Vice-Dean of the Faculty of Advocates, has remains with His Majesty and his royal succes- received the appointment of Sheriff of Dumfriessors, but it does convey a feudal or perpetual shire and Galloway. Mr Brown was born in right to the office of keeper with all the emolu- Glasgow in 1858. His education was started ments belonging to that office without account- at a private school in London. From there ing therefor to the Crown. This right cannot he proceeded to Rossall College, and between be recalled by the Crown, but it is a limited 1886 and 1893 studied at the University of grant of usufruct, applying exclusively to the Glasgow, where he graduated in arts and law. ordinary uses of the surface. It does not In 1894 he was admitted a member of the permit the keeper to carry away the solid sub- Faculty of Advocates. From 1917 until 1919 stances of the lands, such as the mines and he acted as Advocate-Depute. In 1919 he beminerals, which include the rocks and stones. came King's Counsel, and two years later was The keeper cannot in virtue of his grant di- unanimously chosen Vice-Dean. The goodminish the advantages of the subject of the will which elected him to that high office will grant or even the beauty or amenity thereof, be heartily extended to him in his new appointor authorise any act or operation by which the ment, for no Scottish advocate is more popular pro rty may be in any way dilapidated or alike with Bench and Bar and those members of exhausted. His duty as an officer of the the public with whom he comes into contact. Crown is rather to guard the subject of his As a pleader he has a deliberate style, a voice grant from all encroachments and preserve it of fine timbre, and a well of humour which in a state befitting the property of the Crown.
on suitable occasions. He is In conclusion, it is interesting to note that Chancellor of the Diocese of Edinburgh. in 1844 the Crown purchased from the Earl of Haddington at the price of £30,674 the right which Charles I. had granted to Sir James
his acceptance of the invitaHamilton nearly 200 years previously in tion to become the Unionist candidate for East consideration of a sum of £10,000, and the Renfrew, Mr Alexander M. MacRobert, M.A., office of hereditary keeper of Holyrood Park LL.B., K.C., has resigned his appointment as accordingly came to an end. So far as human Sheriff of Forfarshire, which he assumed in agency is concerned, therefore, future genera- January 1923, when Sir J. M‘Kie Lees, K.B.E., tions will doubtless be able to view Arthur's K.C., resigned. Mr MacRobert is one of the Seat with Salisbury Crags as the advance most popular members of the Faculty. From guard when looking eastwards from Princes Paisley Grammar School he passed to the Štreet across the North Bridge, as it is highly Academy and thence to the Universities of improbable that the rocks and stones in the Glasgow and Edinburgh, graduating M.A. and park will be interfered with by the Crown. LL.B. In 1897 he was called to the Scottish
Bar, and quickly established himself in the
front rank as a junior. In 1917 he was apTHE King has been pleased, on the recom- pointed extra Advocate-Depute, but resigned the mendation of the Secretary for Scotland, to office to take up national service at the Admirapprove the following appointments :
alty. On his return to the Bar he was appointed Mr George Morton, K.C., presently Sheriff an Advocate-Depute. In the end of 1919 he of Dumfries and Galloway, to be Sheriff of took silk, and has succeeded equally as well as Forfarshire in the room of Mr A. M. MacRobert, a senior as he had done as a junior. In his K.C., resigned.
style of pleading he recalls the late Lord Scott Mr Charles Herbert Brown, K.C., to be Dickson, and, persistent and tenacious, has Sheriff of Dumfries and Galloway in the room frequently had the satisfaction of bringing an of Mr George Morton, K.C.
antagonistic Bench round to his point of view. MR GEORGE MORTON, M.A., LL.B., K.C., who is being transferred to Forfarshire in succession WE regret to record the sudden death on the to Mr MacRobert, K.C., has been Sheriff of 7th October of Mr Charles Ewart, solicitor and Dumfries and Galloway since 1917. He was Town-Clerk, Eyemouth. Mr Ewart had been born in 1870 at Auchengray, Lanarkshire. Town-Clerk for many years, and was held in After graduating M.A. and LL.B. at the Uni- high esteem throughout the district.
The partnership of Anderson, Macdonald determine whether to send the case to trial forthwith & Co., writers, Commercial Bank Buildings, or to the debate roll. It is all in the interest alike Cupar, was dissolved by mutual consent as at of the litigants, their counsel and solicitors, to 30th November 1921 by the retiral therefrom minimise expense and to obtain an early decision of of Mr Angus Hugh Macdonald. The business the matter in dispute. has since been carried on by Mr John Lindsay available involve protracted delay in obtaining a
The forms and steps of procedure at present Anderson, and will in future be carried on by decision of the Court. This has led to the expedients him at the same address under the firm name of (1) arbitration, and (2) appeal (often by agreement) of J. L. Anderson & Co.
to the English Courts. As regards the first expedient, whilst arbitration may result in an earlier judgment being obtained, it affords little or no saving in expense excepting, perhaps, in cases where the reference is conducted extrajudicially, i.e. by the parties them.
selves. But in such cases, and even in the cases of Letter to the Editor.
a formal reference either to experts or lawyers, the
result is not so satisfactory to the client as a judgment Dear Sir,
in foro. In regard to appeals to the English Courts
these have usually occurred in shipping and comCourt of Session Procedure.
mercial cases, and whilst an earlier judgment is often
obtained, no lessening in costs, it is feared, is thus The article in the issue of the “Scots Law Times"
effected. If, therefore, the procedure in the Court of the 27th September deserves the careful con
of Session can be simplified and expedited it is certain sideration of the legal profession at large and also that fewer disputes would go to arbitration or to the of all who are interested in maintaining the high English Courts. traditions of the Law of Scotland as administered
It is realised that amendments in procedure such there.
are indicated by your correspondent and the There is a very general consensus of opinion writer would entail the passing of a new Act of amongst Court practitioners that the time is ripe for Parliament, but as the last statute regulating proan amendment in procedure. To begin with, the cedure in the Court of Session was passed more than forms of summonses and other initial writs should half a century ago, and many new laws have since be shortened and simplified. Instead of the intro- been passed, the time seems more than opportune ductory narrative, conclusions, and will of the present for some amendment. Some years ago the Faculty form of summons, it is suggested that a simple form of Advocates had under consideration the question akin to the English writ or Sheriff Court petition of the amendment of the procedure in the Court of might be utilised. Thus :
Session, and a committee under the presidency of “In the Court of Session in Scotland,
the late Lord Dundas discussed various aspects of Division, Lord Ordinary, Mr clerk,
the matter. The views of some of the leading summons at the instance of A.B. (design him), practitioners were invoked and given. It is underpursuer, against C.D. (design him), defender. stood that the view ultimately arrived at by the The pursuer craves the Court to grant a decree committee was that no radical amendments could be ordaining the defender (here insert the conclusion effected without an Act of Parliament, and the only craved) with interest thereon from
result of the committee's deliberations was certain (where the conclusion is one for payment of a recommendations as regards printing, etc., which were sum of money) and expenses, all conform to embodied in the Act of Sederunt of 27th October statement of claim appended hereto; and
1922. The present Lord Advocate was a member (if warrant to arrest or inhibit is desired) to grant of that committee, and if now approached on the warrant to arrest (or inhibit as the case may be) subject he would no doubt lend a sympathetic ear on the dependence of the action.”
to any suggestion for facilitating the procedure and The statement of claim would be in the form of efficiency of the Court of Session as the Supreme an account where the summons is raised for payment Court of Law in Scotland. The amendment of of a debt or in such form as a decree is desired in any procedure appears to be as claimant, if not more so, other case. This would do away with the long, than the amendment of the Law of Conveyancing cumbrous forms at present in use in such actions which was recently carried into effect by the Act of as declarators, multiplepoinding, and count and Parliament of last Session. reckoning.
It is, therefore, suggested that the Lord Advocate In answer to this form of summons it is suggested should be approached to appoint a committee comthat the defender should lodge a statement of defence prising members of the Faculty of Advocates of the setting forth briefly and categorically his defences to W.s. and S.S.C. Societies of the Procurators of the claim, and that, if necessary, the pursuer should Glasgow and the Incorporated Law Society, with one be entitled to lodge a reply. Thereafter an oppor of the judges of the Court of Session as chairman, tunity would be given to the litigants to adjust their to consider and report as to the amendment and pleadings, and only after such adjustment should
simplification of procedure in the Court of Session. pleadings be printed. It should also be made
X. obligatory on the litigants to lodge in the process, before the pleadings are finally settled, documents upon which either of them founds, and in that way the judge would be in a position to