en sum thereby intended for the value of the subject “In the mean time, the warrandice lands evicted only, and not for the whole damage had been twice sold, under burden of the arising from the eviction ? For what good infeftments in security, with personal warranreason should the legal construction of warran- dice from the disponer. dice be different in real warrandice from what “In the year 1796, they were, for the third it is in personal ? That in the one it should time, sold by Mrs Calderwood Durham, to whom signify a security for the value of the subject they now belonged, to Robert Graham, by a evicted, and in the other, whether warrandice minute of sale, which specified certain be expressed or implied, should import an cumbrances affecting the lands (without obligation to refund the purchaser's damage mentioning the infeftments in security), and and interest ? And if this is so, that a pur- bore, that there were no other on them. chaser's damage is really secured upon the “ Mr Graham having discovered these infeftwarrandice-lands, it is impossible that an ments, refused, on Mrs Graham's death, to pay infeftmen warrandice can be an infeftment the price to her trustees till they were cleared of property, entitling the purchaser, immediately off, and on that ground suspended a charge upon the eviction, to the property of the for payment. He likewise brought an action warrandice lands, equal in value to the lands against the trustees, concluding, either that evicted. An infeftment for security of a claim they should disencumber the lands, or the of damage and interest is the most different bargain should be declared null, and the trustees thing that can be figured from a claim of liable in damages. property : It is an infeftment for a “The trustees brought an action against illiquid indeed, but which must be liquidated. the present Lord Torphichen, founded on the The regress that is competent in excambion, personal warrandice in the disposition of stands upon very different principles, and is | Camelty, etc., by his predecessor, concluding, governed by very different rules from recourse: that he should either disencumber the lands of În an excambion, in case of eviction, the party the infeftment in favour of Polbeth, or relieve recurs to his own lands, and the property them of the objection made by Mr Graham. reverts to him, as if the excambion had never “They likewise brought an action against happened, without any process of liquidation ; William Flint of Polbeth, concluding, that as and that his regress cannot be barred, though his right to these lands was now completely the purchaser should offer to make good his secured by prescription, he should be ordained damages arising from the eviction ; because, to renounce his infeftment over Camelty, etc., as no longer of consequently, the purchaser's right to the ) ** « The Lord Ordinary reported the whole on lands: But, in recourse upon real warrandice, memorials. as the seller is only bound to make good the Graham contended, that having purchased purchaser's damage and interest; if he is the lands as free from any encumbrance, willing to pay up this damage when it is except those specified in the minute, among liquidated, he fulfils his obligation, and which the infeftments in real warrandice were extinguishes as the personal, so the real not enumerated, he was entitled to have them warrandice.” taken off; because, although the right to Polbeth was apparently secured by prescription, 2. Discharge of the Burden. the effect of it might be prevented by minorities or otherwise, and he was obliged to submit The question of the discharge of the real to no risk whatever. burden constituted over lands conveyed in The trustees argued alternatively, that, as real warrandice was before the Court in the Polbeth had been so long possessed upon case of The Trustees of Mrs Calderwood Durham regular feudal titles without objection, the V. Robert Graham and others, 9th July 1800 infeftment in warrandice was now merely (M. 16641). The report of the case is so clear, nominal, and could not possibly become a incisive, and instructive that the writer does ground of eviction from Mr Graham, and not think a single sentence could with advantage therefore afforded no reason for his withholding be dispensed with, and he therefore does not the price; or if the Court thought that Mr hesitate to quote it in full : “ Lord Torphichen, Graham was entitled to have it discharged, in the year 1689, sold the lands of Polbeth to either Mr Flint should be ordained to relinquish Thomas Flint. In security of the purchase, it, or Lord Torphichen obliged to indemnify his Lordship gave real warrandice over the the trustees, upon the personal warrandice in lands of Camelty and others retained by him. his predecessor's disposition of Camelty, etc. The lands of Polbeth have ever since been Flint maintained, that he could not be possessed, without objection, by Flint's heirs, bound to relinquish his infeftment, without on regular feudal titles. receiving an equivalent in other lands; and other person. The case, , a that, if his security was, as supposed, useless of the lands given on the one side, there would to him, it could be of no prejudice to any be immediate recourse upon those given on the other, even if held by singular successors.” “Lord Torphichen admitted, that in case Again, at page 668, he states : of eviction, of which he alleged there was no however, was one of circumstances; and it danger, he was bound to warrant the right to is not to be understood as settling that, in no Camelty, etc., but, he added, that it was not in case, is a seller bound to discharge a right of his power, and he was under no obligation to real warrandice affecting the lands sold. It is disencumber the lands from the infeftment in advisable, however, when rights of that nature security, the disponee, from his predecessor, are known to exist, to condescend upon them, having accepted of personal warrandice against and make their discharge, or their continuance undischarged, the subject of special stipulation The Court thought Mr Graham, in the in the missives of sale. If that is not done, circumstances of the case, too scrupulous, the seller may, without any adequate reason, and therefore conjoined the different processes, be involved in a very awkward difficulty, found the letters orderly, proceeded in the because real warrandice rights are not redeemsuspension, assoilzied the defenders in the able. The seller has it not in his power to other actions, and found the pursuer (Mr force the holder to give them up; and if they Graham) liable in expenses. A reclaiming are not of old date, and the title of the principal petition for Mr Graham was (18th November lands is not fortified by prescription, the 1800) refused without answers.' purchaser cannot be expected to pay the price It is interesting to note the different ways without getting some special security against in which legal writers have expressed themselves claims under the real warrandice right.” in regard to the decision in the case. They Professor George Joseph Bell in his “ Comare object-lessons in framing a legal proposition mentaries” (7th ed.), p. 734, draws the following from a decision. conclusion : The Court has held that the Duff in his “ Feudal Conveyancing ” (1838), fear of lands disponed in real warrandice p. 91, states the following proposition : “A being effectually bound in case of eviction burden thus constituted over lands conveyed from the principal lands, where set up as a in real warrandice is worked off by the operation pretence for not paying the price of warrandice of the positive prescription in fortifying the lands, is in equity subject to a reasonable title to the principal subject.” limitation." In Professor Menzies, "Lectures on Convey- The subject of this article was brought ancing” (1856), p. 835, it is laid down that sharply before the writer when dealing with the rule as to a seller being bound to purge the the purchase of part of a landed estate which record does not extend to such apparent was in course of being sold in lots. Certain rights in other parties as do not in reality imply lands in one county were held in real warrandice any real encumbrance or ground of apprehension. of the principal lands in another county, and So where the lands purchased were liable in the series of property and security writs were real warrandice of other lands, but of which naturally recorded in the registers of both the title was amply secured by prescription, counties. Prescription had run on the title that was held not to be such a real burden as of the owners of the principal lands, and as it the purchaser could require to be discharged.” was deemed to be practically impossible to Professor Montgomerie Bell in his “Lectures convey a portion of the warrandice lands to on Conveyancing” (1867), p. 207, writes as each individual purchaser of the principal follows : " It has been found that the obliga- lands the warrandice lands were not conveyed tion of absolute warrandice does not authorise at all. No discharge of the burden on the a purchaser to claim the discharge of an old warrandice lands was, however, granted to right of real warrandice, on which no action the owner thereof as it was considered that none was threatened. It is not, however, to be was required in consequence of the burden assumed that a modern right of that nature having (in Duff's terse language) been worked would not authorise a claim on the part of the off by the operation of the positive prescription purchaser of the lands thereby affected. What in fortifying the title to the principal lands. the claim of the purchaser would be, would Indeed, it was questionable whether the owner depend on the circumstances of each case. of the warrandice lands was aware that they But probably the mere existence of the obliga- had in the distant past been conveyed against tion of real warrandice would not authorise the contingency of the proprietor of the principal the purchaser to make any claim in the case lands being evicted therefrom, for it is of an excambion, or exchange of lands for conceivable that no reference was made in the lands, because in such case the liability to real titles of the warrandice lands to the infeftments warrandice is mutual, and, in case of eviction in security. In this connection reference is 66 no : made to the “ Juridical Styles " (3rd ed.), 1826, LONDON LETTER. Vol. I. p. 150, where the framers under the heading" Dispositions in Real Warrandice,” TEMPLE, 4th November 1924. state, inter alia, that “ A search of the records During the summer Mr Justice Bailhache for forty years cannot secure a purchaser of suddenly died at the age of sixty-seven. He was any estate whatever, because at a period much the common law judge principally associated more remote it may have been disponed in with what is known as the commercial Court. real warrandice, and of course may be wrested Although cases concerning commercial transfrom the purchaser notwithstanding an actions were by no means confined to his Court, apparently unexceptionable title and progress it was on his method of dealing with that type of writs. of work that his reputation as a judge will rest. There does not appear to be any reported He was what is known at the Bar as a strong case other than Blair's before referred to, judge, that is to say, one who, having once where warrandice lands were proceeded against made up his mind on a given point, could in consequence of eviction from the principal scarcely be moved by the most brilliant lands. In troublous times it was no doubt advocacy. Particularly was this the case when considered expedient to take a conveyance of questions of commercial morality were involved, lands in real warrandice. The practice has, so much so that on occasion he would prefer to however, fallen into abeyance, and the abolition stretch a legal doctrine to its utmost limit of real warrandice in the new Act is a reform rather than that dishonesty should conduct at which conveyancer will cavil. All its business affairs unharmed within the danger or ground of apprehension which may conventional four corners of the law. If his exist in consequence of lands having been legal decisions were reversed on appeal, it was conveyed in real warrandice will by-and-by principally owing to this tendency of his. As be removed. a result there can be no doubt that his twelve years' tenure of the bench has had a great influence for purity on commercial dealings in the city and elsewhere. His work has been of equal importance in that sphere to that of THE VANITY OF INTRANT'S WISHES : Lord Wrenbury's in the sphere of the limited FRAGMENT AFTER JOHNSON. liability company. It is an inspiring thought to the lawyer to realise what an enormous (Found on the floor of Parliament Hall.) influence for good may radiate from the firm handling of cases involving matters with which On what foundation stands the Intrant's pride, the man in the street is in constant contact. How just his hopes, let X's case decide. A frame of adamant, a soul of fire, The steady application of a high standard of No dangers fright him, and no labours tire. morality to all business transactions that came O'er Stair, o'er Bell extends his kingdom wide ; before Mr Justice Bailhache must inevitably Master of Erskine and the peer of Clyde No joys to him can other callings yield, have spread its influence to many a business Law sounds the trump, he rushes to the field. transaction that never came before him at all; Other professions court, but court in vain ; and this quite apart from the direct effect of “ Think nothing gained,” he cries, “ till nought remain, decided cases in enabling counsel to decide “In Inglis' seat until I take my place, And deal forth justice to a list'ning race." whether matters submitted to them have or The march begins in solitary state, have not an ultimate chance of success at the No agents on his eye suspended wait. trial. The attitude of mind of the late judge From Glasgow, Audax comes to seize the prey, was strikingly commented on by Lord Justice And starves his Eastern rivals on the way. Atkin in the posthumous appeal in the case of X is condemned a supplicant to wait While sycophants get briefs, and slaves debate. Lagish v. Braithwaite (reported in the “ Times” But does not chance at length her error mend ? newspaper, 24th October 1924). Mr Justice Does no law lordship mark a happier end ? Bailhache in his judgment in that case (reported His end is destined to a barren strand, 40 T.L.R. 857) had held that a person who was A petty township, far across the land. With age, with debts, with maladies oppressed, not merely a shareholder, but also a managingHe seeks the refuge of a rustic rest; director of a company which had a contract And banished far from fireplace and from club with a municipal corporation, was disqualified He ends his days a sad, sour'd sheriff-sub. . under section 12 (1) of the Municipal CorporaAspiring youth, be warned in time to pause, Seek rather death's embraces than the law's; tions Act, 1882, from being a councillor of that To worthier callings let your fancy range, corporation. This judgment was reversed on Go in for brewing, join the stock exchange, appeal by a majority of the Court of Appeal, Be a paid Member, run a dancing-school; Lord Justice Atkin dissenting, and the dissenting The dustman's wise, the advocate's a fool. O'er the Bar's portals this is written clear, judgment concluded with these words : Abandon hope, all who are intrants here." “I think that the judgment of Mr Justice Bailhache was right. It must have been one the American Bar Association and of the of the last judicial utterances of that great Canadian Committee. The whole immense floor lawyer, and I rejoice to be in agreement with was filled with the guests. The proceedings him in seeking to maintain, though unsuccess- began with the sumptuous procession of the fully, a statutory provision so essential to the members of the judiciary, with which those maintenance of purity in local administration." who have witnessed the annual opening of the The new judge, Mr Frank Douglas Mackinnon, Courts are familiar. These having taken their K.C., was sworn in in the Lord Chief Justice's places, Sir Patrick Hastings, the AttorneyCourt on the day of the opening of the Courts General, and Sir James Aikins, Lieutenanton 13th October. He therefore becomes the Governor of Manitoba, formally presented the first High Court judge appointed by a Labour American Bar Association to the Lord ChanAdministration. Mr Mackinnon was called in cellor as their guests. The Lord Chancellor 1897, and took silk seventeen years later. As then welcomed them to this country, and befits one who takes the place of Mr Justice replies were made by Mr Hughes and Mr Justice Bailhache, his career has been confined to the Sutherland of the Supreme Court. Two days Commercial and Admiralty Courts. later the Lord Chancellor was present once At the annual dinner of the Hardwicke more in a representative capacity to receive, Society, which is the debating society of the in the Central Hall of the Law Courts, from Bar, the Lord Chief Justice commented on Mr Wickersham of the Memorial Committee of the fact that the appointment of two additional the American Bar Association, a plaster effigy judges sanctioned by Act of Parliament is of Sir William Blackstone, later to be replaced not automatic, but depends on the moving of by a permanent statue in marble or bronze. an address to the Crown. The result is that, owing to the intervention of general elections and other troubles, there are no additional SOCIETY OF PROCURATORS OF judges now in existence, and we shall have to MIDLOTHIAN. wait until the new Administration takes office before there can be any hopes of an address The thirty-eighth annual general meeting of being moved. There is every reason at present this Society was held on 31st October 1924, for the appointment of the two judges, seeing when the following report by the Council was that the King's Bench Division and the Probate, submitted : Divorce, and Admiralty Division both have Since the last general meeting of the Society heavy lists of cases before them. The following held on 30th October 1923, your Council have comparisons with the figures for the King's dealt with the following matters : Bench Division at the opening of the Courts in Sasine Office.—Mr Fortune, to whom the pro1923 will shew how the work is accumulating: posed memorial to the Secretary for Scotland Non-jury cases : 1923, 447 ; 1924, 639. was remitted, has been in communication with Special jury cases : 1923, 83; 1924, 223. your secretary, and in a letter dated 17th inst. Total cases of all kinds : 1923, 731 ; 1924, Mr Fortune reports : “ The staff appear to have, 1191. to a considerable extent, recovered their lost There is also an increase in the Chancery ground, and, to be quite frank, I don't think we lists, and in the Commercial Court only is have now much to complain about the delays there a falling away. at the present time.” Mf Fortune has prepared, The great social event of the year has been, and submitted to the Council, tables shewing of course, the welcome to the Bar Association the improvement in the state of matters origiof the United States, led by its President, nally complained about. In the circumstances, Mr C. E. Hughes, more familiarly known as as reported, your Council decided to consider Secretary of State. The company was extra- what further steps should be taken in the ordinarily representative both of every branch matter in view of the delay in writing up the of the law and of every State. With them minute-book. came a large number of members of the Canadian Government Servants' Salaries-Test Case as Bar Association, who acted as joint hosts with to Arrestability. In this test case, which is a the English lawyers. The two chief events of furthcoming at the instance of Mrs Euphemia the visit were the reception in Westminster Marr or Mulvenna v. The Commissioners for Hall and the presentation of the Blackstone executing the office of Lord High Admiral of statue in the Law Courts. The 'Westminster the United Kingdom of Great Britain and Hall reception was most impressive. The steps Ireland, arrestees, and James Mulvenna, at the end of the Hall, where at one time the common debtor, defences have been lodged by Kings of England had sat as judges, were the arrestees, who plead that, crowded with members of the English Bar, (1) the pursuer's averments being irrelevant County Court judges, and representatives of and insufficient in law to support the - Scots conclusions of the summons, the action tute a breach of the terms of the Law Agents ought to be dismissed ; Acts, decided to take appropriate steps to deal (2) the action being incompetent ought to with the matter. be dismissed ; Small Dwellings Acts Acquisition (Scotland), (3) the pretended arrestment founded on 1899–1923.-Mr Fortune brought to the notice being inept and incompetent, these de- of the Council the terms of the above Acts and fenders ought to be assoilzied from the the conditions with reference to loans as laid conclusions of the summons so far as down by the city of Edinburgh, particularly directed against them; and with reference to the expenses of bonds to be (4) the sums payable by these defenders to granted for advances made under the said the said James Mulvenna are not Acts. After discussion it was considered that purpose. The case is at present Membership.-The membership as at this on the Adjustment Roll of the Court date consists of 34 life members and 152 of Session. ordinary members. Visit of the American and Canadian Bar Office-bearers for the ensuing year were Associations.--Your president was invited by appointed as follows: President-Mr James G. the editor of the “Scots Law Times" to join Bryson, solicitor ; Vice-President-Mr George in the messages of welcome being extended in Dunlop, solicitor; Secretary and Fiscal-Mr connection with this visit, and your president Peter Clark, S.S.C., 24 Hill Street ; Treasurer sent a message which is recorded in the - Mr R. D. C. M‘Kechnie; Librarian Mr Law Times” of 28th July last, in the following Lindsay C. Steele. Members of Council — Mr terms : George Rennie, M.B.E., S.S.C.; Mr P.J. Purves, The Society of Procurators of Midlothian S.S.C.; Mr Andrew Constable, solicitor; Mr are grateful for the privilege of joining in the Rutherford Fortune, S.S.C.; Mr Thomas J. welcome which is being extended to the Connolly, solicitor. members of the American and Canadian Bar Associations on their visit to this country, and to share in that universal expression of goodwill NEW SCOTTISH SHERIFF and brotherly affection with which the distinguished visitors are being greeted by the The King has been pleased, on the recomlegal practitioners of this city." mendation of the Secretary for Scotland, to Admission of Law Agents.—Your Council make the following appointments : were invited by the Joint Committee of Legal Mr John Swan Mercer, advocate, O.B.E., Societies to consider and report upon the draft Sheriff-Substitute of Renfrew and Bute at of the proposed Act of Sederunt regarding Greenock, to be an additional Sheriff-Substitute examination of intending entrants into the in the Sheriffdom of Lanark. legal profession, and the following is the terms Mr Robert Hendry, advocate, to be Sheriffof your Council's report : Substitute of Renfrew and Bute at Greenock, We approve of the draft Act of Sederunt in place of Mr John Swan Mercer. subject to the qualification that all the sub- Mr Mercer, who was appointed Sheriff-Subjects in the entrance examination should be stitute of Renfrew and Bute in 1921, is a son passed on the intermediate grade with the ex- of the late James Mercer, farmer, of Southfield, ception of mathematics, for which a pass on Dalkeith. He was born in 1867, and was eduthe lower grade might be accepted. With cated at the Royal High School and University regard to the final examinations, we are of of Edinburgh. He became advocate in 1899, opinion that one of the divisions of the law and was appointed counsel for the Crown as examinations should embrace the specific ultimus hæres in 1911. He was Sheriff-Subsubject of commercial law." stitute of Caithness, Orkney, and Shetland from Unlicensed Persons appearing in Court for 1912 to 1921. Others.—Your Council, having had their atten- Mr Robert Hendry was born in 1876, and is tion drawn to repeated appearances of un- the son of the late Mr Andrew Hendry, solicitor, qualified persons in the Courts in the interests Edinburgh. He was educated at Merchiston and on behalf of party litigants in the Civil Castle School and Edinburgh University. In Courts and accused in the Criminal Courts, and 1901 he was called to the Bar, and eight years being of opinion that such appearances consti- later he was appointed counsel to the Secretary |
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