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"In the mean time, the warrandice lands had been twice sold, under burden of the infeftments in security, with personal warrandice from the disponer.
thereby intended for the value of the subject evicted only, and not for the whole damage arising from the eviction? For what good reason should the legal construction of warrandice 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 enbe 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 infeftment of 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 sum illiquid indeed, but which must be liquidated. The regress that is competent in excambion, stands upon very different principles, and is governed by very different rules from recourse: In an excambion, in case of eviction, the party recurs to his own lands, and the property reverts to him, as if the excambion had never happened, without any process of liquidation; and that his regress cannot be barred, though the purchaser should offer to make good his damages arising from the eviction; because, by the eviction the contract is resolved, and consequently, the purchaser's right to the lands: But, in recourse upon real warrandice, as the seller is only bound to make good the purchaser's damage and interest; if he is willing to pay up this damage when it is liquidated, he fulfils his obligation, and extinguishes as the personal, so the real warrandice."
2. Discharge of the Burden.
The question of the discharge of the real burden constituted over lands conveyed in real warrandice was before the Court in the case of The Trustees of Mrs Calderwood Durham v. Robert Graham and others, 9th July 1800 (M. 16641). The report of the case is so clear, incisive, and instructive that the writer does not think a single sentence could with advantage be dispensed with, and he therefore does not hesitate to quote it in full: "Lord Torphichen, in the year 1689, sold the lands of Polbeth to Thomas Flint. In security of the purchase, his Lordship gave real warrandice over the lands of Camelty and others retained by him.
The lands of Polbeth have ever since been possessed, without objection, by Flint's heirs, on regular feudal titles.
"The trustees brought an action against the present Lord Torphichen, founded on the personal warrandice in the disposition of Camelty, etc., by his predecessor, concluding, that he should either disencumber the lands of the infeftment in favour of Polbeth, or relieve them of the objection made by Mr Graham.
"They likewise brought an action against William Flint of Polbeth, concluding, that as his right to these lands was now completely secured by prescription, he should be ordained to renounce his infeftment over Camelty, etc., as no longer of any use to him.
"The Lord Ordinary reported the whole on memorials.
"Graham contended, that having purchased the lands as free from any encumbrance, except those specified in the minute, among which the infeftments in real warrandice were not enumerated, he was entitled to have them taken off; because, although the right to Polbeth was apparently secured by prescription, the effect of it might be prevented by minorities or otherwise, and he was obliged to submit to no risk whatever.
"The trustees argued alternatively, that, as Polbeth had been so long possessed upon regular feudal titles without objection, the infeftment in warrandice was now merely nominal, and could not possibly become a ground of eviction from Mr Graham, and therefore afforded no reason for his withholding the price; or if the Court thought that Mr Graham was entitled to have it discharged, either Mr Flint should be ordained to relinquish it, or Lord Torphichen obliged to indemnify the trustees, upon the personal warrandice in his predecessor's disposition of Camelty, etc.
Flint maintained, that he could not be bound to relinquish his infeftment, without receiving an equivalent in other lands; and
that, if his security was, as supposed, useless to him, it could be of no prejudice to any other person.
"Lord Torphichen admitted, that in case of eviction, of which he alleged there was no danger, he was bound to warrant the right to Camelty, etc., but, he added, that it was not in his power, and he was under no obligation to disencumber the lands from the infeftment in security, the disponee, from his predecessor, having accepted of personal warrandice against it.
of the lands given on the one side, there would be immediate recourse upon those given on the other, even if held by singular successors.' Again, at page 668, he states: The case, however, was one of circumstances; and it is not to be understood as settling that, in no case, is a seller bound to discharge a right of real warrandice affecting the lands sold. It is advisable, however, when rights of that nature are known to exist, to condescend upon them, 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 without getting some special security against claims under the real warrandice right."
It is interesting to note the different ways in which legal writers have expressed themselves in regard to the decision in the case. They are object-lessons in framing a legal proposition from a decision.
Duff in his "Feudal Conveyancing" (1838), p. 91, states the following proposition: "A burden thus constituted over lands conveyed in real warrandice is worked off by the operation of the positive prescription in fortifying the title to the principal subject."
In Professor Menzies, "Lectures on Conveyancing" (1856), p. 835, it is laid down that the rule as to a seller being bound to purge the record does not extend to such apparent rights in other parties as do not in reality imply any real encumbrance or ground of apprehension. So where the lands purchased were liable in real warrandice of other lands, but of which the title was amply secured by prescription, that was held not to be such a real burden as the purchaser could require to be discharged." Professor Montgomerie Bell in his "Lectures on Conveyancing" (1867), p. 207, writes as follows: It has been found that the obligation of absolute warrandice does not authorise a purchaser to claim the discharge of an old right of real warrandice, on which no action was threatened. It is not, however, to be assumed that a modern right of that nature would not authorise a claim on the part of the purchaser of the lands thereby affected. What the claim of the purchaser would be, would depend on the circumstances of each case. But probably the mere existence of the obligation of real warrandice would not authorise the purchaser to make any claim in the case of an excambion, or exchange of lands for lands, because in such case the liability to real warrandice is mutual, and, in case of eviction
Professor George Joseph Bell in his "Commentaries " (7th ed.), p. 734, draws the following conclusion: "The Court has held that the fear of lands disponed in real warrandice being effectually bound in case of eviction from the principal lands, where set up as a pretence for not paying the price of warrandice lands, is in equity subject to a reasonable limitation.'
The subject of this article was brought sharply before the writer when dealing with the purchase of part of a landed estate which was in course of being sold in lots. Certain lands in one county were held in real warrandice of the principal lands in another county, and the series of property and security writs were naturally recorded in the registers of both counties. Prescription had run on the title of the owners of the principal lands, and as it was deemed to be practically impossible to convey a portion of the warrandice lands to each individual purchaser of the principal lands the warrandice lands were not conveyed at all. No discharge of the burden on the warrandice lands was, however, granted to the owner thereof as it was considered that none was required in consequence of the burden having (in Duff's terse language) been worked off by the operation of the positive prescription in fortifying the title to the principal lands. Indeed, it was questionable whether the owner of the warrandice lands was aware that they had in the distant past been conveyed against the contingency of the proprietor of the principal lands being evicted therefrom, for it is conceivable that no reference was made in the titles of the warrandice lands to the infeftments in security. In this connection reference is
made to the " Juridical Styles" (3rd ed.), 1826, Vol. I. p. 150, where the framers under the heading "Dispositions in Real Warrandice," state, inter alia, that "A search of the records for forty years cannot secure a purchaser of any estate whatever, because at a period much more remote it may have been disponed in real warrandice, and of course may be wrested from the purchaser notwithstanding an apparently unexceptionable title and progress of writs.'
TEMPLE, 4th November 1924.
During the summer Mr Justice Bailhache suddenly died at the age of sixty-seven. He was the common law judge principally associated with what is known as the Commercial Court. Although cases concerning commercial transactions were by no means confined to his Court, it was on his method of dealing with that type 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 no 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 Lord Wrenbury's in the sphere of the limited liability company. It is an inspiring thought to the lawyer to realise what an enormous influence for good may radiate from the firm handling of cases involving matters with which the man in the street is in constant contact. The steady application of a high standard of morality to all business transactions that came before Mr Justice Bailhache must inevitably have spread its influence to many a business transaction that never came before him at all; and this quite apart from the direct effect of
THE VANITY OF INTRANT'S WISHES:
FRAGMENT AFTER JOHNSON.
(Found on the floor of Parliament Hall.)
On what foundation stands the Intrant's pride,
"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.
From Glasgow, Audax comes to seize the prey,
whether matters submitted to them have or have not an ultimate chance of success at the trial. The attitude of mind of the late judge was strikingly commented on by Lord Justice Atkin in the posthumous appeal in the case of Lagish v. Braithwaite (reported in the "Times " newspaper, 24th October 1924). Mr Justice Bailhache in his judgment in that case (reported 40 T.L.R. 857) had held that a person who was not merely a shareholder, but also a managingdirector of a company which had a contract with a municipal corporation, was disqualified under section 12 (1) of the Municipal Corporations Act, 1882, from being a councillor of that corporation. This judgment was reversed on appeal by a majority of the Court of Appeal, Lord Justice Atkin dissenting, and the dissenting judgment concluded with these words:
“I think that the judgment of Mr Justice
Bailhache was right. It must have been one of the last judicial utterances of that great lawyer, and I rejoice to be in agreement with him in seeking to maintain, though unsuccessfully, a statutory provision so essential to the maintenance of purity in local administration." The new judge, Mr Frank Douglas Mackinnon, K.C., was sworn in in the Lord Chief Justice's Court on the day of the opening of the Courts on 13th October. He therefore becomes the first High Court judge appointed by a Labour Administration. Mr Mackinnon was called in 1897, and took silk seventeen years later. As befits one who takes the place of Mr Justice Bailhache, his career has been confined to the Commercial and Admiralty Courts.
the American Bar Association and of the Canadian Committee. The whole immense floor was filled with the guests. The proceedings began with the sumptuous procession of the members of the judiciary, with which those who have witnessed the annual opening of the Courts are familiar. These having taken their places, Sir Patrick Hastings, the AttorneyGeneral, and Sir James Aikins, LieutenantGovernor of Manitoba, formally presented the American Bar Association to the Lord Chancellor as their guests. The Lord Chancellor then welcomed them to this country, and replies were made by Mr Hughes and Mr Justice Sutherland of the Supreme Court. Two days later the Lord Chancellor was present once more in a representative capacity to receive, in the Central Hall of the Law Courts, from
the American Bar Association, a plaster effigy of Sir William Blackstone, later to be replaced by a permanent statue in marble or bronze.
SOCIETY OF PROCURATORS OF
At the annual dinner of the Hardwicke Society, which is the debating society of the Bar, the Lord Chief Justice commented on Mr Wickersham of the Memorial Committee of the fact that the appointment of two additional judges sanctioned by Act of Parliament is not automatic, but depends on the moving of an address to the Crown. The result is that, owing to the intervention of general elections and other troubles, there are no additional judges now in existence, and we shall have to wait until the new Administration takes office before there can be any hopes of an address being moved. There is every reason at present for the appointment of the two judges, seeing that the King's Bench Division and the Probate, Divorce, and Admiralty Division both have heavy lists of cases before them. The following comparisons with the figures for the King's Bench Division at the opening of the Courts in 1923 will shew how the work is accumulating: Non-jury cases: 1923, 447; 1924, 639. Special jury cases: 1923, 83; 1924, 223. Total cases of all kinds: 1923, 731; 1924,
There is also an increase in the Chancery lists, and in the Commercial Court only is there a falling away.
The thirty-eighth annual general meeting of this Society was held on 31st October 1924, when the following report by the Council was submitted:
Since the last general meeting of the Society held on 30th October 1923, your Council have dealt with the following matters:
Sasine Office.-Mr Fortune, to whom the proposed memorial to the Secretary for Scotland was remitted, has been in communication with your secretary, and in a letter dated 17th inst. Mr Fortune reports: "The staff appear to have, to a considerable extent, recovered their lost ground, and, to be quite frank, I don't think we have now much to complain about the delays at the present time." Mr Fortune has prepared, and submitted to the Council, tables shewing the improvement in the state of matters originally complained about. In the circumstances, as reported, your Council decided to consider what further steps should be taken in the matter in view of the delay in writing up the minute-book.
The great social event of the year has been, of course, the welcome to the Bar Association of the United States, led by its President, Mr C. E. Hughes, more familiarly known as Secretary of State. The company was extraordinarily representative both of every branch of the law and of every State. With them 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 at the end of the Hall, where at one time the Kings of England had sat as judges, were crowded with members of the English Bar, County Court judges, and representatives of
Ireland, arrestees, and James Mulvenna, common debtor, defences have been lodged by the arrestees, who plead that
(1) the pursuer's averments being irrelevant and insufficient in law to support the
conclusions of the summons, the action ought to be dismissed;
(2) the action being incompetent ought to be dismissed;
(3) the pretended arrestment founded on being inept and incompetent, these defenders ought to be assoilzied from the conclusions of the summons so far as directed against them; and (4) the sums payable by these defenders to the said James Mulvenna are not arrestable in respect (1) the said James Mulvenna is a servant of the Crown; (2) his pay is intended for his maintenance as a Crown servant; and (3) his pay is provided out of moneys appropriated by the Crown for a particular purpose. The case is at present on the Adjustment Roll of the Court of Session.
Visit of the American and Canadian Bar Associations. Your president was invited by the editor of the "Scots Law Times" to join in the messages of welcome being extended in connection with this visit, and your president sent a message which is recorded in the "Scots Law Times" of 28th July last, in the following
The Society of Procurators of Midlothian are grateful for the privilege of joining in the welcome which is being extended to the members of the American and Canadian Bar Associations on their visit to this country, and to share in that universal expression of goodwill and brotherly affection with which the distinguished visitors are being greeted by the legal practitioners of this city."
Admission of Law Agents.-Your Council were invited by the Joint Committee of Legal Societies to consider and report upon the draft of the proposed Act of Sederunt regarding examination of intending entrants into the legal profession, and the following is the terms of your Council's report:
We approve of the draft Act of Sederunt subject to the qualification that all the subjects in the entrance examination should be passed on the intermediate grade with the exception of mathematics, for which a pass on the lower grade might be accepted. With regard to the final examinations, we are of opinion that one of the divisions of the law examinations should embrace the specific subject of commercial law."
Unlicensed Persons appearing in Court for Others.-Your Council, having had their attention drawn to repeated appearances of unqualified persons in the Courts in the interests and on behalf of party litigants in the Civil Courts and accused in the Criminal Courts, and being of opinion that such appearances consti
tute a breach of the terms of the Law Agents Acts, decided to take appropriate steps to deal with the matter.
Small Dwellings Acts Acquisition (Scotland), 1899-1923.-Mr Fortune brought to the notice of the Council the terms of the above Acts and the conditions with reference to loans as laid down by the city of Edinburgh, particularly with reference to the expenses of bonds to be granted for advances made under the said Acts. After discussion it was considered that while the Society, as such, could do nothing meantime in the matter, it was recommended that the Council should keep in touch with the Town Council's ultimate decision on the question which, it was understood, was still a subject of their consideration.
Membership. The membership as at this date consists of 34 life members and 152 ordinary members.
Office-bearers for the ensuing year were appointed as follows: President-Mr James G. Bryson, solicitor; Vice-President-Mr George Dunlop, solicitor; Secretary and Fiscal-Mr Peter Clark, S.S.C., 24 Hill Street; Treasurer
Mr R. D. C. M'Kechnie; Librarian Mr Lindsay C. Steele. Members of Council-Mr George Rennie, M.B.E., S.S.C.; Mr P. J. Purves, S.S.C.; Mr Andrew Constable, solicitor; Mr Rutherford Fortune, S.S.C.; Mr Thomas J. Connolly, solicitor.
NEW SCOTTISH SHERIFF
The King has been pleased, on the recommendation of the Secretary for Scotland, to make the following appointments:
Mr John Swan Mercer, advocate, O.B.E., Sheriff-Substitute of Renfrew and Bute at Greenock, to be an additional Sheriff-Substitute in the Sheriffdom of Lanark.
Mr Robert Hendry, advocate, to be SheriffSubstitute of Renfrew and Bute at Greenock, in place of Mr John Swan Mercer.
Mr Mercer, who was appointed Sheriff-Substitute of Renfrew and Bute in 1921, is a son of the late James Mercer, farmer, of Southfield, Dalkeith. He was born in 1867, and was educated at the Royal High School and University of Edinburgh. He became advocate in 1899, and was appointed counsel for the Crown as ultimus hæres in 1911. He was Sheriff-Substitute of Caithness, Orkney, and Shetland from 1912 to 1921.
Mr Robert Hendry was born in 1876, and is the son of the late Mr Andrew Hendry, solicitor, Edinburgh. He was educated at Merchiston Castle School and Edinburgh University. In 1901 he was called to the Bar, and eight years later he was appointed counsel to the Secretary