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An Injustice of the Stamp Acts.
As is only to be expected, the Stamp Acts are framed in the interests of the State. The interests of others are not considered, but in many cases, in endeavouring to strengthen the position of the State by penalising those who have not acted in strict conformity with the Stamp Acts, the opposite result is achieved and the State loses money which could easily be collected were these Acts less strict. No sympathy need be wasted on those who deliberately evade payment of lawful stamp duties, and the writer makes no attempt to defend them; but, on the other hand, it is thought that gross injustice is, in many instances, done to those who have inadvertently been guilty of a breach of the Stamp Acts.
Let us take a typical example. A borrows from B the sum of £100, and hands B what is considered by both to be a mere acknowledgment for the money. 'The document reads as follows: "Received from B 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 been stamped as such (Alexander v. Alexander, 1830, 8 S. 602; M'Intosh v. Stewart, 1830, 8 S. 739; Pirie's Reps. v. Smith's Exrs. 1833, 11 S. 473; Haddin v. M'Ewan, 1838, 16 S. 331; Milne v. Donaldson, 1852, 14 D. 849; M'Cubbin v. Stephen, 1856, 18 D. 1224; Blyth v. Forbes, 1879, 6 R. 1102; Vallance v. Forbes, 1879, 6 R. 1099; M'Farlane v. Johnston, 1864, 2 M. 1210; Scott's Trs. v. Garden's Trs., 1905, 12 S.L.T. 724). The English decisions
are to the same effect.
A promissory note, whether payable on demand or otherwise, requires to be stamped ad valorem (Oettinger v. Cohn,  1 K.B. 582), although there was at one time some doubt about this, and there is a Sheriff Court decision to the contrary (Brown & Co.'s Seqn., 10 Sheriff Court Reports, 328).
A promissory note cannot be after-stamped (Stamp Act, 1891, section 37 (2)), except if stamped with impressed stamp of sufficient amount but improper denomination, in which case it can be stamped with the proper stamp on payment of the duty, and a penalty of 408. if the note be not then payable, or £10 if so payable (Stamp Act, 1891, section 376). Trouble usually arises in practice when the debtor
dies and the creditor lodges a claim with the executors of the deceased. If the executors pay on the document of debt they are liable to a penalty of £10 (Stamp Act, 1891, section 38 (1)) in addition to their liability to the beneficiaries in the deceased's estate for paying on an improper document of debt. In cases where there are minor beneficiaries it is not 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 themselves.
Should the creditor attempt to constitute his claim he cannot found on or refer to the note, as section 38 (1) of the Stamp Act does not allow him to make the note available for any purpose whatever. He can only prove loan by writ or oath of the debtor (see authorities referred to in Gloag on Contract, p. 316). He cannot refer to the debtor's oath if the debtor is dead. He is, therefore, confined to the debtor's writ, which as a rule is difficult to obtain. The only point in the creditor's favour is that the writ need not be holograph or tested (Paterson v. Paterson, 1897, 25 R. 144).
The result often is that, because of the strictness of the Stamp Acts, a creditor is prevented from recovering a just debt. It seems a most inequitable state of affairs, and is not at all necessary for the protection of the Revenue. If Revenue. If after-stamping subject to a penalty of, say 25 per cent., of the principal sum contained in the note was allowed, it would be sufficient to prevent wilful breach of the law, and would, at the same time, open the door to those who had inadvertently failed to comply with the provisions of the Stamp Acts. Thus would the State be protected and justice done to the individual.-Yours faithfully,
ROBERT B. ALLAN.
MR GEORGE B. CHALK, B.L., solicitor, 122 Wellington Street, Glasgow, C2, informs us that as a result of the death of Bailie Thomas H. Paterson, who was a partner of the firm of Mackay, Paterson & Young, writers, Glasgow, it has been decided between Mr David N. Mackay, the surviving partner of that firm, and himself to amalgamate their businesses. Messrs Mackay, Paterson & Young's firm was established twenty years ago. The combined businesses will be carried on at 144 St Vincent Street, Glasgow, C2, under the firm name of Mackay, Paterson & Chalk.
Mr J. DUNN RUSSELL, County Buildings, Airdrie, has assumed his son, William Paterson Russell, LL.B., as a partner in the businesses carried on by him at County Buildings, Airdrie. and 505 Main Street, Bellshill. The businesses. will be carried on under the firm name of J. Dunn 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 of a contraTowers-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 was 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 RIGHTS OF HEREDITARY KEEPERS OF ROYAL PARKS. The royal patrimonial estate consisted of lands, castles, strongholds, and palaces throughout the country, and in ancient times these were often dissipated and transferred from the Crown, sometimes from necessity and sometimes in a spirit of profusion (Bell's Principles, 10th edition, section 672). In Scotland various grants were made by the Crown of heritable keeperships of royal palaces, forests, and parks, such as a grant to the Duke of Hamilton of the keepership of the Royal Palace of Holyrood, to the Earl of Moray of the keepership of the Royal Forest of Glenfinlas in Perthshire, and to Sir James Hamilton of the keepership of the Royal Park of Holyrood. No question-of any magnitude at least as to the rights of such keepers appears to have arisen until early in the nineteenth century, when there was a protracted litigation between the Officers of State, as representing the Crown, and the Earl of Haddington, who succeeded Sir James Hamilton or his descendants in the keepership of Holyrood Park. The case went to the House of Lords, and is reported in 2 Wilson and Shaw 468, and 5 Wilson and Shaw 570. The reports contain statements of the law defining the rights of keepers of royal parks which are not to be found at any length elsewhere, and I propose to summarise the case and the opinions of the judges in the hope that such a summary will be both of general and of legal interest. My excuse for doing so is that comparatively few agents may have had occasion to ascertain the rights of hereditary keepers of royal parks or forests.
The point at issue was whether the hereditary keeper or ranger of Holyrood Park, in which are situated Arthur's Seat and the bold and precipitous line of rocks known as Salisbury Crags, was entitled to quarry and dispose of the stones of the crags, etc., and incidentally thereby disfigure the crags and injure the beauty and amenity of the palace and of the city of Edinburgh.
Prior to 1646 it does not appear that there was any hereditary keeper of the park, the palace having been, till the time of James VI., the usual place of residence of the Kings of Scotland and the park being under the immediate care of the household officers. In that year, however, Charles I., in consideration it was said of a sum of £10,000 given to help him in his necessities during the Civil War, conferred upon Sir James Hamilton and his descendants the office of heritable keeper of the royal park, with all the fees, casualties, dues, and privileges thereof. It may be observed that the word "casualties" in this connection
means casual payments and does not signify casualties of superiority.
In 1690 the Earl of Haddington acquired right to the office by adjudication from the family of Hamilton and thereafter obtained from William and Mary a Crown charter destining the office to the heirs of entail of the honours and estates of Haddington.
The rock in the park was of a nature well adapted for paving streets and forming roads, and before the creation of the office of keeper the Magistrates of Edinburgh were allowed by the Kings of Scotland the privilege of taking stones from the park for the purpose of causewaying the streets of the city. Payment for the stones was apparently made by the City. Treasurer. The privilege was continued after Sir James Hamilton's appointment and his consent was obtained, but it does not appear whether payment for stones taken was made to
him or to the Crown.
The privilege given to the city of Edinburgh would seem to have been the cause of the trouble between the Crown and the keeper, and to lead, as years rolled on, to a misconception on the part of the keeper or his advisers of the limited right of keepership granted by the Crown. It was evidently assumed that the keeper was heritable proprietor of the park and entitled to lease the stone thereon, for various leases were granted, including leases to the Magistrates of Edinburgh and to certain road. trustees, empowering the lessees to open and work stone quarries in any part of the park and to sell and dispose at pleasure of the stones won. In 1815 quarrying operations were commenced and continued on so large a scale as to attract the attention of those in whose care the Crown's property was placed. The Officers of State alleged that from 1815 to 1819 between 46,000 and 60,000 tons of rock were carried away by the keeper of the park without the consent of the Crown. They also alleged that in 1818 2920 cubic yards were quarried from Salisbury Crags for the purpose of making Regent Road. When one walks along the base of the crags one observes at the southern end thereof the vacant space where quarrying operations have been carried on.
The Court of Session were in sympathy with Lord Haddington, and were of opinion that he was entitled to quarry stones by virtue of ancient usage. The Court did not state that he had an unlimited right so to do, but the view was expressed that he had a right to quarry stones so long as the right was not abused. There was a lack of finality in the judgment of the Court of Session, and the position of the Crown and the keeper was not well defined. No one could say when use ended and abuse began. On appeal, however, the House of
Lords reversed the judgment of the Court of Session and declared in unqualified terms that the keeper was not entitled to work quarries in the park to any extent.
The law on the subject may be summarised thus: The King's grant conveys no feudal or perpetual right of property in the soil, which remains with His Majesty and his royal successors, but it does convey a feudal or perpetual right to the office of keeper with all the emoluments belonging to that office without accounting therefor to the Crown. This right cannot be recalled by the Crown, but it is a limited grant of usufruct, applying exclusively to the ordinary uses of the surface. It does not permit the keeper to carry away the solid substances of the lands, such as the mines and minerals, which include the rocks and stones. The keeper cannot in virtue of his grant diminish the advantages of the subject of the grant or even the beauty or amenity thereof, or authorise any act or operation by which the property may be in any way dilapidated or exhausted. His duty as an officer of the Crown is rather to guard the subject of his grant from all encroachments and preserve it in a state befitting the property of the Crown.
In conclusion, it is interesting to note that 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 Hamilton nearly 200 years previously in consideration of a sum of £10,000, and the office of hereditary keeper of Holyrood Park accordingly came to an end. So far as human agency is concerned, therefore, future generations will doubtless be able to view Arthur's Seat with Salisbury Crags as the advance guard when looking eastwards from Princes Street across the North Bridge, as it is highly improbable that the rocks and stones in the park will be interfered with by the Crown.
THE King has been pleased, on the recommendation of the Secretary for Scotland, to approve the following appointments:
Mr George Morton, K.C., presently Sheriff of Dumfries and Galloway, to be Sheriff of Forfarshire in the room of Mr A. M. MacRobert, K.C., resigned.
Mr Charles Herbert Brown, K.C., to be Sheriff of Dumfries and Galloway in the room of Mr George Morton, K.C.
MR GEORGE MORTON, M.A., LL.B., K.C., who is being transferred to Forfarshire in succession to Mr MacRobert, K.C., has been Sheriff of Dumfries and Galloway since 1917. He was born in 1870 at Auchengray, Lanarkshire. After graduating M.A. and LL.B. at the Uni
versity of Edinburgh he was admitted a member of the Scottish Bar in 1895. As a pleader he has been markedly successful, particularly in jury trials. From 1911 till 1917 he was an Advocate-Depute.
Mr Charles H. Brown, M.A., LL.B., K.C., Vice-Dean of the Faculty of Advocates, has received the appointment of Sheriff of Dumfriesshire and Galloway. Mr Brown was born in Glasgow in 1858. His education was started at a private school in London. From there he proceeded to Rossall College, and between 1886 and 1893 studied at the University of Glasgow, where he graduated in arts and law. In 1894 he was admitted a member of the Faculty of Advocates. From 1917 until 1919 he acted as Advocate-Depute. In 1919 he became King's Counsel, and two years later was unanimously chosen Vice-Dean. The goodwill which elected him to that high office will be heartily extended to him in his new appointment, for no Scottish advocate is more popular alike with Bench and Bar and those members of the public with whom he comes into contact. As a pleader he has a deliberate style, a voice of fine timbre, and a well of humour which bubbles up on suitable occasions. He is Chancellor of the Diocese of Edinburgh.
FOLLOWING upon his acceptance of the invitation to become the Unionist candidate for East Renfrew, Mr Alexander M. MacRobert, M.A., LL.B., K.C., has resigned his appointment as Sheriff of Forfarshire, which he assumed in January 1923, when Sir J. M'Kie Lees, K.B.E., K.C., resigned. Mr MacRobert is one of the most popular members of the Faculty. From Paisley Grammar School he passed to the Academy and thence to the Universities of Glasgow and Edinburgh, graduating M.A. and 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 appointed extra Advocate-Depute, but resigned the office to take up national service at the Admiralty. On his return to the Bar he was appointed an Advocate-Depute. In the end of 1919 he took silk, and has succeeded equally as well as a senior as he had done as a junior. In his style of pleading he recalls the late Lord Scott Dickson, and, persistent and tenacious, has frequently had the satisfaction of bringing an antagonistic Bench round to his point of view.
WE regret to record the sudden death on the 7th October of Mr Charles Ewart, solicitor and Town-Clerk, Eyemouth. Mr Ewart had been Town-Clerk for many years, and was held in 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 the matter in dispute. of Mr Angus Hugh Macdonald. The business has since been carried on by Mr John Lindsay Anderson, and will in future be carried on by him at the same address under the firm name of J. L. Anderson & Co.
Letter to the Editor.
Court of Session Procedure.
The article in the issue of the "Scots Law Times of the 27th September deserves the careful consideration of the legal profession at large and also of all who are interested in maintaining the high
traditions of the Law of Scotland as administered there.
There is a very general consensus of opinion amongst Court practitioners that the time is ripe for an amendment in procedure. To begin with, the forms of summonses and other initial writs should be shortened and simplified. Instead of the introductory narrative, conclusions, and will of the present form of summons, it is suggested that a simple form akin to the English writ or Sheriff Court petition might be utilised. Thus :
"In the Court of Session in Scotland, Division, Lord Ordinary, Mr clerk, summons at the instance of A.B. (design him), pursuer, against C.D. (design him), defender. The pursuer craves the Court to grant a decree ordaining the defender (here insert the conclusion craved) with interest thereon from (where the conclusion is one for payment of a sum of money) and expenses, all conform to statement of claim appended hereto; and (if warrant to arrest or inhibit is desired) to grant warrant to arrest (or inhibit as the case may be) on the dependence of the action." The statement of claim would be in the form of an account where the summons is raised for payment of a debt or in such form as a decree is desired in any This would do away with the long, cumbrous forms at present in use in such actions as declarators, multiplepoinding, and count and reckoning.
In answer to this form of summons it is suggested that the defender should lodge a statement of defence setting forth briefly and categorically his defences to the claim, and that, if necessary, the pursuer should be entitled to lodge a reply. Thereafter an opportunity would be given to the litigants to adjust their pleadings, and only after such adjustment should pleadings be printed. It should also be made obligatory on the litigants to lodge in the process, before the pleadings are finally settled, any material documents upon which either of them founds, and in that way the judge would be in a position to
The forms and steps of procedure at present available involve protracted delay in obtaining a decision of the Court. This has led to the expedients of (1) arbitration, and (2) appeal (often by agreement) 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 themselves. But in such cases, and even in the cases of a formal reference either to experts or lawyers, the result is not so satisfactory to the client as a judgment in foro. In regard to appeals to the English Courts these have usually occurred in shipping and commercial cases, and whilst an earlier judgment is often obtained, no lessening in costs, it is feared, is thus effected. If, therefore, the procedure in the Court of Session can be simplified and expedited it is certain that fewer disputes would go to arbitration or to the English Courts.
It is realised that amendments in procedure such as are indicated by your correspondent and the writer would entail the passing of a new Act of Parliament, but as the last statute regulating procedure in the Court of Session was passed more than half a century ago, and many new laws have since been passed, the time seems more than opportune for some amendment. Some years ago the Faculty of Advocates had under consideration the question of the amendment of the procedure in the Court of Session, and a committee under the presidency of the late Lord Dundas discussed various aspects of the matter. The views of some of the leading practitioners were invoked and given. It is understood that the view ultimately arrived at by the committee was that no radical amendments could be effected without an Act of Parliament, and the only result of the committee's deliberations was certain recommendations as regards printing, etc., which were embodied in the Act of Sederunt of 27th October 1922. The present Lord Advocate was a member of that committee, and if now approached on the subject he would no doubt lend a sympathetic ear to any suggestion for facilitating the procedure and efficiency of the Court of Session as the Supreme Court of Law in Scotland. The amendment of procedure appears to be as claimant, if not more so, than the amendment of the Law of Conveyancing which was recently carried into effect by the Act of Parliament of last Session.
It is, therefore, suggested that the Lord Advocate should be approached to appoint a committee comprising members of the Faculty of Advocates of the W.S. and S.S.C. Societies of the Procurators of Glasgow and the Incorporated Law Society, with one of the judges of the Court of Session as chairman, to consider and report as to the amendment and simplification of procedure in the Court of Session.