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CRIMINAL LAW-HABITUAL CRIMINAL-PERSON PREVIOUSLY CONVICTED OF BEING A HABITUAL CRIMINAL WHETHER ON A SUBSEQUENT CHARGE AS SUCH A JURY IS BOUND TO CONVICT-PREVEN
Notes on English Law as differing from Scots Law, with Special Reference to Questions of Commercial Law and Accountancy Practice. By Hector Burn-Murdoch, Advocate, Barrister-at-Law. 1924. Edinburgh: W. Green & Son Ltd. Price 10s 6d. net.
The substance of this little volume was TION OF CRIME ACT, 1908 (8 EDW. VII. CAP. 59), delivered in a series of lectures to a body of SECTION 10 (2).-The appellant, in November chartered accountants, and the character of 1923, had pleaded guilty at the Central Criminal that audience has largely determined the Court to certain charges in an indictment. In topics treated. The "Notes," however, were addition he was charged with and convicted of well worth reproducing for the benefit of a being a habitual criminal. When he was larger public. The leading differences between tried on the charge of being a habitual criminal the two systems of law are clearly expounded, it was proved that in September 1917 he had with, in many cases, an interesting sketch of been convicted on a similar charge and the historical causes of the differences. The sentenced to six years' preventive detention. reader will not expect to find, in this modest The judge, therefore, directed the jury that volume, an exhaustive account of the legal they had no option but to find the appellant differences; but there are one or two striking guilty. Against that direction the appellant omissions, such as the fundamental difference appealed. Held (dissenting Avory, Rowlatt, in the conceptions of jurisdiction in the two Bailhache, and Shearman JJ.) that the question countries. We hope that Mr Burn-Murdoch whether a prisoner was, or was not, a habitual will pursue in a further volume a subject with criminal was a question of fact for a jury to which he is so well qualified to deal. determine, and that the fact that the prisoner, since attaining the age of sixteen years, had on a previous conviction been found to be a A habitual criminal and sentenced to preventive detention, did not compel the jury under the Prevention of Crime Act, 1908, section 10 (2) to find him guilty of being a habitual criminal. Rex v. Stanley ( 2 K.B. 235) disapproved.Court of Criminal Appeal (Lord Hewart C.J., Avory, Horridge, Lush, Rowlatt, Bailhache, Shearman, Sankey, M'Cardie, Roche, Greer, Swift, and Branson JJ.).-26th May 1924.
Burns's Income Tax Guide. Sixth Edition (covering 1924 Budget). By John Burns, W.S. 1924. Edinburgh: W. Green & Son Ltd. Price 2s. 6d.
Mr Burns has revised his valuable guide to the mysteries of the income tax, and has brought it up to date for the current year. In its successive editions his work has won its way to the approval and confidence of a large public, and neither the lawyer nor the layman, troubled by income tax problems, need hesitate to trust himself to its guidance.
Guide to the Rent and Mortgage Interest
The Prevention of Eviction Act of this year has further complicated the problems arising under the Rent Restrictions Acts and has necessitated a new edition of Mr Wilkinson's. handbook on the subject. Not only has the author discussed the questions which arise under the new Act, but he has availed himself of the opportunity of incorporating the latest decisions of the Courts on the whole series of statutes.
Michael and Will on the Law relating to Gas and
The growth of legislation dealing with the departments of local government with which this book deals has necessitated the production of a new edition, and also the subdivision of the new edition into two volumes. In drawing the attention of readers to the first of these volumes, dealing with "Gas," we should mention that in this new edition the text of statutes relating solely to Scotland has been omitted.
THE ADOPTION OF CHILDREN.
"Adoption" is not a legal institution in Scots law. The transference by agreement of a child from the custody of its natural parent to that of a foster parent is familiar enough, but the law does not recognise or sanction adoption. In Roman law adoption was provided for, and the consequences varied according as the adopter was natural ascendant or was a stranger. In the former case the child passed into the family of the adopting parent and was released from that of its natural parent, while in the latter case the child lost none of its rights as against its natural parent, but it gained the additional right of succeeding to its adopting parent on intestacy. In France and Germany adoption is a legal institution.
A bill has now been presented to Parliament entitled "The Adoption of Children (Scotland) Bill," which provides that any person may apply to the Sheriff Court in Scotland for leave to adopt a child, and that the Court after enquiry may make an "order of adoption." The effect of such order is declared to be that the adopted child is to be "deemed for all purposes to be the lawful child of the adopter and to have ceased to be the child of its natural parents." Before making an order of adoption the Court is to be satisfied (a) that all necessary consents have been given; (b) that the adopter is over thirty years of age; (c) that the child is under sixteen; (d) that the child is at least twenty years younger than the adopter; (e) that the adopter is a fit and proper person to have the care and custody, and is in a position to provide suitable and proper maintenance and education; and (f) that the adoption is likely to promote the true welfare of the child.
The "necessary consents referred to are to be obtained from the natural parents of the child, from the child itself, if over twelve years of age, and from the adopter's husband or wife, except when they are judicially separated. In the case of an illegitimate child the consent of the father is unnecessary.
The bill further provides for registration of the order of adoption and for endorsation of the birth certificate of the child, with the full name of the adopter; and readoption is prohibited except with the consent of the Court which made the order of adoption.
The practical difficulties, which arise in the absence of any law sanctioning adoption, are that an adopter does not obtain a legal right of custody, and that the common law obligation of maintenance is not transmitted so as to be prestable against the adopter. However, in providing that "for all purposes the adopted child is "to be deemed to be the
lawful child of the adopter and to have ceased
At present the law of intestate succession is being considered by the legal societies, and it is not unlikely that considerable statutory alterations will be made, at no distant date, in the direction of abolishing the existing right of primogeniture, and of modifying or abolishing the right of legitim. While the present law of succession obtains, the effect of this bill might be to give an adopted child a right, on intestacy, to the heritable property of the adopter, to the exclusion of the adopter's legitimate children, and a right, even on testacy, to a legal share of moveables. If the bill were limited, in its effects, simply to sanctioning proper agreements for adoption, and otherwise leaving the rights of succession of both adopter and adopted unaffected, it would meet the chief difficulties which at present arise and would form a desirable piece of legislation. Under an Act so limited the legal right of custody of the child would be secured to the adopter; the child would gain a new and additional right of maintenance from him; it would retain its present rights against its natural parents, both of maintenance and succession; it would acquire no rights of intestate succession to the estate of the adopter, and the adopter would acquire no right of intestate succession to the estate of the child. There is no call for legislation which would extend to an adopted child the legal rights of succession which the law at present confers on a lawful child.
NOTES FROM PARLIAMENT HOUSE.
The habitués of Parliament House reassemble this year under the cloud of an impending general election. It is a rather pathetic thought that a hundred years ago the Chartists agitated for annual parliaments; what they hoped to gain by them is most obscure, for now that we appear to be entering on an era of them no sane person views the prospect with alacrity, except possibly those who lost seats at the last election and want to win them back.
In view of present-day political conditions, even their soundness of judgment may be open
to question. If this kind of thing goes on much longer a bill will be necessary, not limiting parliaments to five years, but compelling them to sit throughout that period. We should then elect our legislators and tie them together like Kilkenny cats to do the best they could until released.
There has been the usual exodus of candidates from among us; and, without expressing any political opinion, we may cherish the hope that a larger percentage of them will be successful than last year. Whatever the extremists may say or think about the wicked lawyers, all reasonable men will agree that Parliament House was under-represented in the last House of Commons. It is again exposing no political opinion to suggest that it is probably adverse to our best professional interests that no representatives of the Bar are likely to be found on the Socialist benches in the next House. When a Labour Government next comes to distribute its patronage this may result in prejudice to the Bar; at the same time, this creditable circumstance should be pointed out. If advocates had been the body of selfish placeseekers that some of their critics have made them out to be, what a rush of the Faculty's members to the ranks of Socialism there would have been! There has been nothing of the kind. Besides being thus overshadowed by the election, the session does not promise to be a busy or prosperous one. There are always a number of cases in the calling lists, but the practised eye claims to detect in them a somewhat unsubstantiated appearance. The proportion of "poor" and consistorial litigants is too high. There were only sixty-three cases in the First Division rolls at the beginning of the session, and forty in the Second. Procedure roll discussions were too much in evidence during the first week; and the still more onerous sign of empty courts during the morning was here and there observed. Those who are disposed to think that a rather sluggish flow of business is an evil peculiar to our time, may be interested in the following extracts from the journal of Sir Walter Scott, written during the year 1829. Of course, the reader will remember that Scott is writing, not from the standpoint of a practising advocate, but from that of a clerk of the Court. At the same time, his remarks reflect the general condition of the Court work at that time. Moreover, Lockhart estimated that Scott's duties in this office normally kept him "hard at fatiguing work. for at least three or four hours daily during six months out of the twelve, while the Court was in session.”
January 20.-I had little to do at the Court, and returned home soon.
January 22.-Left Dalkeith after breakfast and gained the Parliament House, where there was almost nothing to do, at eleven o'clock.
January 23.-Nothing on the roll.
January 24.-Nothing but trifles to do at the Court. January 27.-Went to the Court. There was little to do.
January 28.-Sir Robert Dundas having taken my duty at the Court.
January 29.—I had a vacant day once more by the kindness of Sir Robert.
January 31.-I went to the Parliament House to-day, but had little to do.
This is a valuable commentary on a fortnight's "work" in session a century ago. Happily Sir Walter was engaged on other far more important work.
The entertainment of our American and Canadian friends at the close of last session passed off successfully. Members of the legal fraternity in Edinburgh displayed much kindness in offers of hospitality and in help of various kinds. Not least among them was the member of one of our bodies who came up in the morning to Parliament House determined to do his duty by our overseas' visitors. He secured two who seemed to be rather stranded by themselves. He shewed them the Advocates' Library, the W.S. Library, the S.S.C. Library, the Courts, and the Hall, expounding the while the legal lore and institutions of his native land. It was only when he had entertained them to a sumptuous lunch and driven them to the Forth Bridge and back that he discovered that he had been entertaining two representatives of his own society, sent from Perth to grace the occasion with their presence.
With the political side of the now notorious Campbell case we have here no concern. position of the Attorney-General, from the constitutional and legal point of view, has been the subject of full and interesting discussion in
Lord Birkenhead, in one of his letter sto the Times," referred to the Whitaker Wright case, which led, in 1903, to a parliamentary discussion of the Attorney-General's duty. Mr Balfour, the Prime Minister, then said: "It is due to the Attorney-General to say, in the clearest manner, not only in the interests of the AttorneyGeneral, but in the interest of all, that his position as a director of public prosecutions is a position absolutely independent of any of his colleagues. It is not in the power of the Government to direct a prosecution. No Government would do such a thing-no Attorney-General would tolerate its being done.
January 16.-Nothing in the roll to-day, so I did Though it is, I believe, peculiar to the British
not go to Parliament House.
January 17.—Nothing in the roll.
constitution that political officers, like the Lord Chancellor or the Attorney-General, should
occupy what are, in fact, great judicial positions, nobody doubts that, in the exercise of their judicial or quasi-judicial positions, they act entirely independently of their colleagues, and with a strict regard to the duty they have to perform to the public." The position of the Attorney-General being an anomalous one as a member of a Government, it is probably the better practice that he should not have a seat in the Cabinet. Sir John Simon was the last holder of the office who was also a Cabinet minister.
Edinburgh, 15th October 1924.-The Lords this day selected Lords Skerrington, Ormidale, Blackburn, and Constable to be placed on the Rota for the Trial of Election Petitions during the ensuing year in terms of the 58th section of the Parliamentary Elections Act, 1868, and the 2nd section of the Parliamentary Elections and Corrupt Practices Act, 1879.
J. A. CLYDE, I.P.D.
UNIVERSITY OF EDINBURGH.
LAW DEGREE PASS LIST.
The following have passed in the subjects placed after their respective names. Those marked with one asterisk have completed the examinations necessary for the degree, and those marked with two have done so with distinction:
LL.B.-Thomas R. Adam,* International Private Law and English Law; Guy H. Armstrong, Scots Law and Forensic Medicine; William G. Arnott, Civil Law and Forensic Medicine; Rachel M. Barclay, Public International Law and Civil Law; Robert Beveridge,* General Jurisprudence, Public International Law, and Administrative Law; Andrew C. Brown, General Jurisprudence and Civil Law; Mitchell M. Dobbie,* Civil Law; Donald Geddes, Scots Law, Forensic Medicine, and Mercantile Law; James M. Grant, General Jurisprudence and Forensic Medicine; Henry W. Guthrie, General Jurisprudence and Scots Law; Archibald R. B. Haldane, Public
International Law, Scots Law, and International Private Law; Thomas S. Hamilton,* International Private Law and English Law; Patrick H. Hutchison, Scots Law and Forensic Medicine; Richard T. Innes, Constitutional Law and History and Administrative Law; Harold S. Kirkaldy, Scots Law and International Private Law; George A. Mackenzie, Scots Law and Constitutional Law and History; Duncan R. Matheson, General Jurisprudence, Scots Law,
and Administrative Law; William Miller, General
Jurisprudence, Public International Law, and Civil David S. W. Pentland,* Conveyancing; Andrew Rankin, Scots Law, International Private Law, and Mercantile Law; Thomas L. G. Reid,
Scots Law and Evidence and Procedure; Alexander Ross, Scots Law and Forensic Medicine; Ian C. Rutherford, General Jurisprudence, Public International Law, and Civil Law; Allan Smith, Civil Law and Forensic Medicine; Robert A. Sneddon, General Jurisprudence and Forensic Medicine; Alexander J. Stevenson, General Jurisprudence and Civil Law; James B. M. Young, Public International Law and Scots Law.
B.L.-George M. Bryson, General Jurisprudence and Civil Law; Archibald Campbell,** Conveyancing and Forensic Medicine; Robert A. Collet, General Jurisprudence and Civil Law; Gordon D. Cumming, Public International Law and Civil Law; Ronald D. Gibson,* International Private Law; John Jack,* General Jurisprudence and Civil Law; Donald H. MacDonald, Civil Law and Mercantile Law; John K. C. Millar,* General Jurisprudence and Scots Law; Lewis Ockrent, Scots Law and Mercantile Law; Colin A. Pattullo, Civil Law and Forensic Medicine; Jessie D. Philip, General Jurisprudence and Scots Law.
A LARGE circle of practitioners in both branches of the profession, says " The Solicitors' Journal," will sincerely regret the death last week of Sir Patrick Rose Innes, K.C., who for some ten years had been county court judge of a provincial circuit. A successful jury advocate as well as a vigorous politician who fought many unsuccessful parliamentary contests, the late judge was one of those intensely human, genial, and kindly men who are much more numerous than, a priori, one would expect in a rather worldly profession such as the Bar. He was not only a lively and skilful advocate, but a sound lawyer and a most adroit tactician, well versed in all the intricacies of pleadings and procedure, but always a fair and straightforward fighter. Before the war he was a very familiar figure in the Courts, and his colleagues will probably be surprised to find that he was halfway through the seventies when his death occurred. He looked almost a young man not much more than a decade ago. He was a member of a very famous Scots legal family, which has given many members to the Scots Bench, and the Cape Colony branch-at one time largely recruited from the Scots Faculty of Advocates and which, indeed, is one of the score of families-the Scots Noblesse du Robe— which, prior to Lord Jeffrey's reform in 1832, monopolised practice at the Scots Bar. His distinguished cousin, a former Premier of Cape Colony, was a generation ago the leading advocate in South Africa. As a judge Sir Patrick was full of common sense, kindly, and extremely painstaking, and he shewed a notable tendency to help and encourage young men of promise who appeared in his Court. Probably no county court judge of our times has been more universally a favourite with all who practised before him.
Letter to the Editor.
CURRENT LAW LITERATURE. Handbook of Conveyancing. By John Burns, W.S. Third Edition. W. Green & Son Ltd. Price 21s.
EDINBURGH, 17th October 1924. Dear Sir, I have read the recent correspondence which has appeared in your columns regarding the simplification of procedure with a view to encouraging Green's Legal Diary, 1924–1925. litigation to come to the Court of Session. Instead of putting their grievances before the Court many possible suitors go to arbitration or lump it" at present.
As a practising agent I find the outside public draw back from litigation chiefly because of two things:
1. The delay before a final settlement is reached. 2. The expense involved.
To cure these I would suggest :
1. Delay.—(a) That the Third Division should sit
(b) That the preliminary procedure in the
(c) The Court should sit all the year round,
2. Expense. (a) Counsel's fees are too high. If
(b) Only one counsel on each side should be
fifty guineas upwards per diem is pre
(c) Two scales should be adopted in the
W. Green & Son
The Faculty Digest, 1868-1922. Vol. II. W. Hodge & Co. Ltd.
Bullen and Leake's Precedents of Pleadings in Actions
The Law relating to the Reduction of Share Capital.
Reports of Tax Cases.
Price 10s. 6d. net.
Stationery Office. To be obtained at 120 George
Arnould on the Law of Marine Insurance and Average.
Browne and Watts' Law and Practice in Divorce and
be made on, say, a two-thirds basis A Selection of Leading Cases illustrating the Criminal both for fee-fund dues, agents' fees, etc., and no shorthand writer. Scale II. could allow the full dues and the expense of shorthand. Cases coming under Scale I. could not be reclaimed. (d) It should be illegal to charge a successful suitor with an account for extrajudicial expenses, and similarly the unsuccessful party's agent should have his account taxed on a party-andparty" basis.
Law. By A. M. Wilshere, M.A., LL.B. Second Edition. Sweet & Maxwell Ltd. Price 15s. net. Criminal Law in a Nutshell. By Marston Garsia, B.A. Sweet & Maxwell Ltd. Price 3s. 6d. net. Leading Cases in Constitutional Law. By Ernest C. Thomas. Fifth Edition, by Hugh H. L. Bellot, M.A., D.C.L. Sweet & Maxwell Ltd.
These are somewhat drastic reforms, but until something is done work will not flow into our Courts. It is rather lamentable that justice is denied to many because the expense is too great and the final settlement is protracted to such a length.—I am, etc., SIC ITER.
Price 10s. net.
The Yearly Practice of the Supreme Court for 1925.