Rex v.

DECISIONS IN THE ENGLISH Notes on English Law as differing from COURTS.

Scots Law, with Special Reference to

Questions of Commercial Law and AccountNorman,

ancy Practice. By Hector Burn-Murdoch, Advocate, Barrister-at-Law. 1924. Edin

, . CRIMINAL LAW-HABITUAL CRIMINAL-PERSON burgh : W. Green & Son Ltd. Price PREVIOUSLY CONVICTED OF BEING A HABITUAL 10s 6d. net. CRIMINAL-WHETHER ON A SUBSEQUENT CHARGE AS SUCH A JURY IS BOUND TO CONVICT_PREVEN

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 Guide to the Rent and Mortgage Interest habitual criminal and sentenced to preventive

(Restrictions) Acts, 1920 to 1924. By W. E. detention, did not compel the jury under the Wilkinson, LL.D. Fourth Edition. 1924. Prevention of Crime Act, 1908, section 10 (2) to

London: The Solicitors' Law Stationery find him guilty of being a habitual criminal. Society Ltd. Price 7s. 6d. net. Rex v. Stanley ([1920]2 K.B. 235) disapproved.Court of Criminal Appeal (Lord Hewart C.J.,

The Prevention of Eviction Act of this year Avory, Horridge, Lush, Rowlatt, Bailhache, has further complicated the problems arising Shearman, Sankey, M'Cardie, Roche, Greer, under the Rent Restrictions Acts and has Swift, and Branson JJ.).—26th May 1924.

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 LAW LIBRARY.

statutes.

BOOK NOTICES.

Michael and Will on the Law relating to Gas and

Water. Seventh Edition, in Two Polumes, Burns's Income Tax Guide. Sixth Edition (cover- by F. T. Villiers Bayly, Barrister-at-Law.

ing 1924 Budget). By John Burns, W.S. Vol. I. 1924. London: Butterworth & Co. 1924. Edinburgh : W. Green & Son Ltd. Price 50s. net. Price 2s. 6d.

The growth of legislation dealing with the Mr Burns has revised his valuable guide to departments of local government with which the mysteries of the income tax, and has this book deals has necessitated the production brought it up to date for the current year. In of a new edition, and also the subdivision of the its successive editions his work has won its new edition into two volumes. In drawing the way to the approval and confidence of a large attention of readers to the first of these volumes, public, and neither the lawyer nor the layman, dealing with “Gas,"

Gas,” we should mention that troubled by income tax problems, need hesitate in this new edition the text of statutes relating to trust himself to its guidance.

solely to Scotland has been omitted.

a

THE ADOPTION OF CHILDREN.

lawful child of the adopter and to have ceased

to be the child of its natural parents,” the “Adoption” is not a legal institution in bill under consideration is not limited to Scots law. The transference by agreement of securing, a right of custody in the adopter, a child from the custody of its natural parent and a right of maintenance in the child. In to that of a foster parent is familiar enough, effect, the proposed order of adoption would but the law does not recognise or sanction pass the child into the family of the adopter, adoption. In Roman law adoption was with all the consequences of succession which provided for, and the consequences varied the law provides to legitimate offspring, and it according as the adopter was natural would cut away from the adopted child any ascendant or was a stranger.

In the former right of succession which the law would othercase the child passed into the family of the wise have secured to it from the estate of its adopting parent and was released from that of natural parents. its natural parent, while in the latter case the

At present the law of intestate succession is child lost none of its rights as against its being considered by the legal societies, and it natural parent, but it gained the additional is not unlikely that considerable statutory right of succeeding to its adopting parent on alterations will be made, at no distant date, in intestacy. In France and Germany adoption the direction of abolishing the existing right is a legal institution.

of primogeniture, and of modifying or abolishing A bill has now been presented to Parliament the right of legitim. While the present law entitled “The Adoption of Children (Scotland) of succession obtains, the effect of this bill Bill,” which provides that any person may might be to give an adopted child a right, on apply to the Sheriff Court in Scotland for intestacy, to the heritable property of the leave to adopt a child, and that the Court adopter, to the exclusion of the adopter's after enquiry may make an “order of adoption.” legitimate children, and a right, even on testacy, The effect of such order is declared to be that to a legal share of moveables. If the bill were the adopted child is to be “deemed for all limited, in its effects, simply to sanctioning purposes to be the lawful child of the adopter proper agreements for adoption, and otherwise and to have ceased to be the child of its natural leaving the rights of succession of both adopter parents.”. Before making an order of adoption and adopted unaffected, it would meet the chief the Court is to be satisfied (a) that all

necessary

difficulties which at present arise and would consents have been given; (b) that the adopter form a desirable piece of legislation. Under is over thirty years of age; (c) that the child is an Act so limited the legal right of custody under sixteen; (d) that the child is at least of the child would be secured to the adopter ; twenty years younger than the adopter; (e) the child would gain a new and additional right that the adopter is a fit and proper person to of maintenance from him ; it would retain its have the care and custody, and is in a position present rights against its natural parents, both to provide suitable and proper maintenance and of maintenance and succession; it would education; and () that the adoption is likely acquire no rights of intestate succession to the to promote the true welfare of the child. estate of the adopter, and the adopter would The

necessary consents referred to are to acquire no right of intestate succession to the be obtained from the natural parents of the estate of the child. There is no call for legislachild, from the child itself, if over twelve tion which would extend to an adopted child years of age, and from the adopter's husband the legal rights of succession which the law at or wife, except when they are judicially present confers on a lawful child. separated. In the case of an illegitimate child the consent of the father is unnecessary. The bill further provides for registration of

NOTES FROM PARLIAMENT HOUSE. the order of adoption and for endorsation of the birth certificate of the child, with the full The habitués of Parliament House reassemble name of the adopter; and readoption is pro- this year under the cloud of an impending hibited except with the consent of the Court general election. It is a rather pathetic thought which made the order of adoption.

that a hundred years ago the Chartists agitated The practical difficulties, which arise in the for annual parliaments; what they hoped to absence of any law sanctioning adoption, are gain by them is most obscure, for now that we that an adopter does not obtain a legal right appear to be entering on an era of them no sane of custody, and that the common law obliga-person views the prospect with alacrity, except tion of maintenance is not transmitted so as possibly those who lost seats at the last election to be prestable against the adopter. How- and want to win them back. ever, in providing that " for all purposes” the In view of present-day political conditions, adopted child is “ to be deemed to be the even their soundness of judgment may be open

a

.

to question. If this kind of thing goes on much January 20.—I had little to do at the Court, and longer à bill will be necessary, not limiting returned home soon. parliaments to five years, but compelling them

January 22.—Left Dalkeith after breakfast and to sit throughout that period. We should then gained the Parliament House, where there was almost elect our legislators and tie them together nothing to do, at eleven o'clock.

January 23.-Nothing on the roll. like Kilkenny cats to do the best they could

January 24.-Nothing but trifles to do at the Court. until released.

January 27.–Went to the Court. There was There has been the usual exodus of candidates little to do. from among us; and, without expressing any January 28.—Sir Robert Dundas having taken political opinion, we may cherish the hope that my duty at the Court. a larger percentage of them will be successful January 29.—I had a vacant day once more by the

kindness of Sir Robert. than last year. Whatever the extremists may say or think about the wicked lawyers, all

January 31.-I went to the Parliament House reasonable men will

to-day, but had little to do. that Parliament

agree House was under-represented in the last House

This is a valuable commentary on a fortof Commons. It is again exposing no political night's “work” in session a century ago. opinion to suggest that it is probably adverse Happily Sir Walter was engaged on other far to our best professional interests that no

more important work. representatives of the Bar are likely to be found

The entertainment of our American and on the Socialist benches in the next House. Canadian friends at the close of last session When a Labour Government next comes to passed off successfully. Members of the legal distribute its patronage this may result in fraternity in Edinburgh displayed much kindprejudice to the Bar; at the same time, this ness in offers of hospitality and in help of various creditable circumstance should be pointed out. kinds. Not least among them was the member If advocates had been the body of selfish place- of one of our bodies who came up in the morning seekers that some of their critics have made to Parliament House determined to do his duty them out to be, what a rush of the Faculty's by our overseas' visitors. He secured two who members to the ranks of Socialism there would seemed to be rather stranded by themselves. have been! There has been nothing of the kind. He shewed them the Advocates Library, the

Besides being thus overshadowed by the w.S. Library, the S.S.C. Library, the Courts, election, the session does not promise to be a and the Hail

, expounding the while the legal busy or prosperous one. There are always a lore and institutions of his native land. It number of cases in the calling lists, but the

was only when he had entertained them to a practised eye claims to detect in them a some- sumptuous lunch and driven them to the Forth what unsubstantiated appearance. The pro-Bridge and back that he discovered that he portion of “poor” and consistorial litigants is had been entertaining two representatives of too high. There were only sixty-three cases his own society, sent from Perth to grace the in the First Division rolls at the beginning of occasion with their presence. the session, and forty in the Second. Procedure With the political side of the now notorious roll discussions were too much in evidence Campbell case we have here no concern. The during the first week; and the still more position of the Attorney-General, from the onerous sign of empty courts during the morning constitutional and legal point of view, has been was here and there observed. Those who are the subject of full and interesting discussion in disposed to think that a rather sluggish flow of

many papers. business is an evil peculiar to our time, may be

Lord Birkenhead, in one of his letter sto the interested in the following extracts from the Times,” referred to the Whitaker Wright case, journal of Sir Walter Scott, written during the which led, in 1903, to a parliamentary discussion year 1829. Of course, the reader will remember of the Attorney-General's duty. Mr Balfour, that Scott is writing, not from the standpoint the Prime Minister, then said: “It is due to of a practising advocate, but from that of a the Attorney-General to say, in the clearest clerk of the Court. At the same time, his manner, not only in the interests of the Attorneyremarks reflect the general condition of the General, but in the interest of all, that his Court work at that time. Moreover, Lockhart position as a director of public prosecutions is estimated that Scott's duties in this office a position absolutely independent of any of normally kept him“ hard at fatiguing work .... his colleagues. It is not in the power of the for at least three or four hours daily during Government to direct a prosecution. No six months out of the twelve, while the Court Government would do such a thing-no was in session."

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.

constitution that political officers, like the Lord January 17.—Nothing in the roll.

Chancellor or the Attorney-General, should

.

occupy what are, in fact; great judicial positions, Scots Law and Evidence and Procedure ; Alexander nobody doubts that, in the exercise of their Ross, Scots Law and Forensic Medicine ; Ian C. judicial or quasi-judicial positions, they act Rutherford, General Jurisprudence, Public Interentirely independently of their colleagues, and national Law, and Civil Law; Allan Smith, Civil with a strict regard to the duty they have to General Jurisprudence and Forensic Medicine ;

Law and Forensic Medicine ; Robert A. Sneddon, perform to the public.” The position of the Alexander J. Stevenson, General Jurisprudence and Attorney-General being an anomalous one as Civil Law; James B. M. Young, Public International a member of a Government, it is probably the Law and Scots Law. better practice that he should not have a seat B.L.-George M. Bryson, General Jurisprudence in the Cabinet. Sir John Simon was the last and Civil Law; Archibald Campbell,** Conveyancing holder of the office who was also a Cabinet and Forensic Medicine ; Robert A. Collet, General minister.

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.
ROTA.

MacDonald, Civil Law and Mercantile Law; John Edinburgh, 15th October 1924.—The Lords this K. C. Millar,* General Jurisprudence and Scots Law; day selected Lords Skerrington, Ormidale,

Lewis Ockrent, Scots Law and Mercantile Law; Blackburn, and Constable to be placed on the Colin A. Pattullo, Civil Law and Forensic Medicine ; Rota for the Trial of Election Petitions during Jessie D. Philip, General Jurisprudence and Scots the ensuing year in terms of the 58th section of the Parliamentary Elections Act, 1868, and the 2nd section of the Parliamentary Elections A LARGE circle of practitioners in both and Corrupt Practices Act, 1879,

branches of the profession, says" The Solicitors J. A. CLYDE, I.P.D. 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 advoUNIVERSITY OF EDINBURGH. cate as well as a vigorous politician who fought LAW DEGREE PASS LIST.

many unsuccessful parliamentary contests, the

late judge was one of those intensely human, The following have passed in the subjects genial, and kindly men who are much more placed after their respective names. Those numerous than, a priori, one would expect marked with one asterisk have completed the rather worldly profession such as the Bar. He examinations necessary for the degree, and was not only a lively and skilful advocate, but those marked with two have done so with a sound lawyer and a most adroit tactician, well distinction :

versed in all the intricacies of pleadings and LL.B.—Thomas R. Adam,* International Private procedure, but always a fair and straightforward Law and English Law; Guy H. Armstrong, Scots fighter. Before the war he was a very familiar Law and Forensic Medicine; William G. Arnott, figure in the Courts, and his colleagues will Civil Law and Forensic Medicine; Rachel M. Barclay, probably be surprised to find that he was halfPublic International Law and Civil Law; Robert way through the seventies when his death Beveridge,* General Jurisprudence, Public Inter-occurred.

He looked almost a young man not national Law, and Administrative Law; Andrew C. much than decade

ago.

He Brown, General Jurisprudence and Civil Law; member of a very famous Scots legal family, Mitchell M. Dobbie,* Civil Law; Donald Geddes, which has given many members to the Scots Scots Law, Forensic Medicine, and Mercantile Law; Bench, and the Cape Colony branch-at one James M. Grant, General Jurisprudence and Forensic time largely recruited from the Scots Faculty Medicine ; Henry W. Guthrie, General Jurisprudence of Advocates—and which, indeed, is one of the and Scots Law; Archibald R. B. Haldane, Public International Law, Scots Law, and International

score of families—the Scots Noblesse du RobePrivate Law; Thomas S. Hamilton,* International which, prior to Lord Jeffrey's reform in 1832, Private Law and English Law; Patrick H. Hutchison, monopolised practice at the Scots Bar. His Scots Law and Forensic Medicine; Richard T. Innes, distinguished cousin, a former Premier of Cape Constitutional Law and History and Administrative Colony, was a generation ago the leading advoLaw; Harold S. Kirkaldy, Scots Law and Inter-cate in South Africa. As a judge Sir Patrick national Private Law; George A. Mackenzie, Scots was full of common sense, kindly, and extremely Law and Constitutional Law and History; Duncan painstaking, and he shewed a notable tendency R. Matheson, General Jurisprudence, Scots Law, to help and encourage young men of promise and Administrative Law; William Miller, General Jurisprudence, Public International Law, and Civil who appeared in his Court. Probably no county Law; David S. W. Pentland,* Conveyancing ;

court judge of our times has been more uniAndrew Rankin, Scots Law, International Private versally a favourite with all who practised Law, and Mercantile Law; Thomas L. G. Reid, before him.

in a

more

a

was

*

Letter to the Editor.

CURRENT LAW LITERATURE.
EDINBURGH, 17th October 1924.

Handbook of Conveyancing. By John Burns, W.S. Dear Sir, I have read the recent correspondence Third Edition. W. Green & Son Ltd. which has appeared in your columns regarding the

Price 218. simplification of procedure with a view to encouraging Green's Legal Diary, 1924–1925. W. Green & Son litigation to come to the Court of Session. Instead

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Price 638. As a practising agent I find the outside public Bullen and Leake's Precedents of Pleadings in Actions draw back from litigation chiefly because of two

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Eighth Edition, by W. Wyatt-Paine.' Stevens

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Price 508. net. To cure these I would suggest : 1. Delay.—a) That the Third Division should sit The Law relating to the Reduction of Share Capital. until all arrears are disposed of and

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Simondson, M.A. Second Edition. Effingham consistently heard within a month of

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