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for Scotland under the Private Legislation Procedure (Scotland) Act. He served in the forces during the whole period of the war.
CHRISTMAS RECESS.-Edinburgh, 4th November 1924.-The Lords of Council and Session, under authority of the 4th section of the Court of Session Act, 1868, resolve to adjourn the Court from Saturday, 20th December next, to and including Saturday, 3rd January 1925; and appoint Tuesday, 30th December, to be the Box-Day in the Recess.
J. A. CLYDE, I.P.D.
THE Secretary for Scotland has appointed Mr John Howie, solicitor, to be Clerk of the Peace for the County of Ayr, in place of Mr David William Shaw, deceased.
IT is officially announced that, in view of the provisions of Part II. of the Administration of Justice Act, 1920, which provides for the enforcement in England, Scotland, or Ireland, of judgments obtained in any parts of His Majesty's dominions outside the United Kingdom, or in any territories under His Majesty's protection to which the Act extends, the Legislature of the Bahamas has made reciprocal provision for the enforcement therein of judgments obtained in the High Court in England, the Court of Session in Scotland, and the High Court in Ireland, and an Order in Council has accordingly been issued extending Part II. of the Act to the Bahamas.
The operation of the above-mentioned Order in Council is confined to England, Scotland, and Northern Ireland, and similar provision has not yet been made as regards the Irish Free State by the Government of that State.
hasty penologists, are not only objectionable on the ground of humanity, but are quite useless as deterrents in this class of case; they only increase the morbid excitement and the tendency to repeat the criminal acts. In Chicago and elsewhere in the United States psycho-analysis is now made use of for certain classes of offenders, but it is not possible to say at present whether or not the results justify the experiment. A practical difficulty arises when resort to psychoanalyst treatment is made in the case of sexual offences, since a considerable body of public opinion, both on the Bench and among political enthusiasts, regards such offences as specially odious, and is indisposed to try the effect of what seems "leniency" by using methods of curative treatment. It will be interesting to watch the effect of the novel experiment now initiated at Assizes, and to see whether or not other judges follow the example just set them. (From the "Solicitors' Journal.")
MR GEO. WOOD, solicitor, Eyemouth, has been appointed Town-Clerk of Eyemouth in place of the late Mr Chas. Ewart. Mr Wood is son of the late Mr John Wood, solicitor, Eyemouth. He was educated at Eyemouth Public School, Patterson's Academy, Berwick, George Watson's College, Edinburgh, and Edinburgh University. He served his articles with his father, and was for some time with Messrs J. S. & J. W. Fraser-Tytler, W.S., Edinburgh.
By the death of Mr Hugh Herron (of Messrs Crawford, Herron & Cameron, writers, 104 West Regent Street, Glasgow), that city has lost one of its oldest practising members of the legal profession. Mr Herron, who was in his eighty-second year, trained to the law in Girvan and Ayr, and later in the office of PSYCHO-ANALYSIS AT ASSIZES.-The placing Messrs Bannatyne, Kirkwood, France & Co., of a convicted prisoner on probation at Leeds Glasgow. He was admitted a law agent in Assizes, subject to a condition that he shall 1876, and about that time he joined in partnerundergo treatment at the hands of a psycho-ship with the late Mr W. B. Crawford. They analyst, marks a novel step in the administra-later assumed as a partner Mr George J. Cameron tion of our criminal law. Of late, however, of the present firm.
there has been a growing opinion among criminologists and medical experts that a fair trial should be given to the claims put forward on behalf of psycho-analysis as a means of eradicating the morbid or perverse inclinations which lie at the root of certain crimes of a pathological character. In the case of sexual offences, which are often committed after a blameless moral life by men of good character and reputation, it is now generally recognised that medical treatment, rather than penal, is the proper method of attempting a cure. Imprisonment in such cases only confirms the morbid tendency, and harsher punishments, sometimes advocated by
shareholders. The debentures could only be enforced in certain circumstances. F received in virtue of his holding in the company £65,950 of debenture stock. He did not receive, nor was he entitled to receive, any payment in cash for his share of the bonus. Held that the bonus distribution was income to the recipients and liable to assessment to super-tax. K.B. Div. (Rowlatt J.).-27th June 1924.
Inland Revenue Commissioners v. Cornish
CORPORATION PROFITS TAX MUTUAL INSURANCE COMPANY-LIABILITY
FINANCE ACT, 1920 (10 & 11 GEO. V. CAP. 18), SECTION 53 (2) (B).-The company in question was limited by guarantee and was incorporated under the Companies Acts, 1862 to 1903, on 10th October 1903. It carried on a mutual fire insurance business in Devon and Cornwall. There was no subscribed capital. Every person who had issued to him and accepted à contract of insurance with the company became a member, and ceased to be a member when his right to protection by or through the company terminated. Held that such a company was not liable to pay corporation profits tax. Inland Revenue Commissioners v. Eccentric Club, Ltd. ( 1 K.B. 390, ante, Eccentric Club, Ltd. ( 1 K.B. 390, ante, p. 36), applied.-K.B. Div. (Rowlatt J.). 1st July 1924.
these forces have occasionally been invoked in
By Robert S. Rait, M.A., LL.D., Historiographer-Royal for Scotland. 1924. Glasgow: MacLehose, Jackson & Co. Price 30s. net.
The reputation which Professor Rait has long enjoyed as one of the greatest authorities on the history of Scotland will be established on an unchallengeable foundation by this important work on the history of the Scottish Parliament. The author, indeed, presents his work to the public (in his own words)" with considerable hesitation," on the ground that a considerable body of historical material contained in the Register House has not even yet been made available to students in an accessible form. It may be true, as the author fears, that some of his conclusions may require modification when this material is made An Analytical Digest of Cases decided in the accessible; but the reader will find here a learned and exhaustive-and withal a readable Supreme Courts of Scotland and, on appeal, account of the evolution and working of our in the House of Lords, 1868 to 1922, pre- ancient parliament such as has not previously pared for the Faculty of Advocates by been available to him. Members of the Bar. Volume II. 1924. Edinburgh and Glasgow: Wm. Hodge & Co. Ltd. Price 63s. net.
CURRENT LAW LITERATURE.
The English and Empire Digest. Vol. XVIII. Descent and Distribution; Discovery, Inspection, and Interrogatories; Distress. Butterworth & Co.
With commendable promptitude the second volume of the Faculty Digest has made its appearance. This volume brings the matters down to "Justice of the Peace." The method pursued in its compilation was sufficiently The Solicitors' Diary, 1925. Eighty-First Year of explained in our recent notice of the first volume.
Publication. Waterloo & Sons Ltd.
The Failure of State Railways. Harold Cox, Editor
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THE RISK OF NOTOUR (?)
of a charge having been given by another creditor.
In these circumstances what may happen, and what in point of fact does happen, is that It is a very long time since Professor George creditor A presses for payment; the debtor Joseph Bell ("Com." ii. 169) drew attention to produces ex facie satisfactory balance-sheets the unfair risk involved in the unlimited effect, and offers security; the creditor agrees to in point of time, of notour bankruptcy under the accept that security; it is granted and comScots Act, 1696, c. 5, subject only to the long pleted accordingly; and on the faith of that negative prescription. That Act provides that- the creditor ceases to press, and gives time. all and whatsomever voluntar dispositions, assigna- It may also be that all this takes place in tions, or other deeds, which shall be found to be made England or Ireland, or in a foreign country or granted, directly or indirectly, be the forsaid dyvor where certainly neither commercial men nor or bankrupt either at or after his becomeing bank-other people have any duty to know the law of rupt, or in the space of sixty dayes of befor, in favors Scotland. Then, at an interval of perhaps of any of his creditors, either for their satisfaction two years, the debtor is sequestrated and his or farther security, in preference to other creditors, to be voyd and null.
The word "bankrupt " here, of course, refers to the status of notour bankruptcy, and not to séquestration or other divestiture. The usual method by which notour bankruptcy is now constituted is insolvency combined with a charge, and the expiry of the days of charge without payment of the debt charged for. In these circumstances the words " notour bankruptcy are hopelessly and dangerously inaccurate. "Notour is understood to mean simply notorious, and that is supported by Jamieson's Scottish Dictionary. Now, a charge for payment of debt is a private proceeding, neither preceded nor followed by any publication. It may be known to no one except the creditor, his agent, the debtor, and the officer, and so far as the present writer is aware there is no way by which third parties can ascertain whether a charge has been given. This is subject to a kind of quasi-qualification in the case of summary diligence on bills and notes, for the registration of the protest is blacklisted. That is prima facie evidence of insolvency, and it is a reasonable inference that it has been followed by a charge, or at any rate it points to the danger of that possibility. But a great many charges are given on documents of other classes involving no blacklisting.
Once notour bankruptcy has been constituted it continues (Bankruptcy Act, 1913, s. 7) "until insolvency cease," subject it is understood to the forty years' negative prescription. There is the further complication that, even if the charge and its expiry without payment are known, it does not necessarily follow that there is notour bankruptcy. That requires the other element of insolvency, so that the question of notour bankruptcy or not may be pending unsolved for an indefinite time.
It is quite settled that deeds within the terms of the 1696 Act are not saved by the good faith of the creditor to whom they are granted, nor by the fact that he was in complete ignorance
trustee takes the point under the 1696 Act, the challenge being founded on the fact that another creditor, B, had given a charge before, or within sixty days after, the constitution of A's security, and that the charge had expired without payment of B's debt. In that position the decision must be that A's security is bad. It matters not that B's debt was paid shortly after the days of charge had expired. Indeed it would appear that, if the great bulk of that debt were paid within the days of charge, but a trifling final balance was liquidated the day after the charge expired, down comes A's security, and though the question may not be raised for some years. It can hardly be said that this is a satisfactory state of matters, and it is known that among commercial men in Scotland, and generally in England, it is viewed with great disfavour. It goes without saying that, in taking the security, the creditor A did nothing wrong. It may well be that, if he had continued to press, he would have obtained full payment. Indeed, when the charger's debt is paid in full shortly after the expiry of the charge, and long before sequestration, it sounds the extreme of irony, and a travesty of justice, to say that the security given to one creditor and accepted in good faith shall be defeated, and that he shall not get his money, and this by virtue of the self-same charge which resulted in full payment of the charger's debt. It is quite safe to say that it was the charge which compelled payment of the charger's debt, and why the same step should have the double-barrelled effect of saving one debt and destroying another it is not easy to understand in equity. If the "bankruptcy" which is required to bring into operation the rule of the 1696 Act were actually notour or notorious, it might well be considered that any grievance was non-existent; but under the law as it now stands, as has been shown above, this kind of bankruptcy is the very reverse of notorious. There may have been nothing much to object to in the rule, or it may have
been a most excellent rule, even without a time-limit, when the bankruptcy status on which it was conditioned consisted of such overt acts as fleeing the country, or retreating to the sanctuary, or a roup, or imprisonment, for each and all of these are truly notorious, and would be rather more so in Scotland in 1696 even than they would be now. Referring to the practical absence of any time-limit to the effect of notour bankruptcy the author of the "Commentaries " (ii. 169) writes:
This rule deserves legislative consideration; and perhaps it ought to be provided that no [notour] bankruptcy should have the effect of grounding a challenge (unless followed by sequestration or a voluntary trust deed for behoof of creditors) after the expiry of a certain time, as four or six months.
It is submitted that the course of legislation and business developments since that great work was published powerfully reinforce the suggestion of that very learned author.
Recent experience suggests what is really of the nature of an excrescence on, or postscript to, the main theme, but one which possesses a good deal of interest both professionally and practically. When a sequestration trustee challenges a security under the Act, 1696, on the ground of notour bankruptcy, the initial onus is on him to prove the notour bankruptcy, which is the essential condition of his success. Take the case of diligence upon a bill, and suppose that the diligence resulted in the charger's debt being paid, but not till shortly after the expiry of the charge, though long before the sequestration. What would naturally, and indeed necessarily, happen when the debtor paid the charger would be that the debtor received delivery of the original bill, the extract protest, and the execution of charge. He would already hold the schedule of charge. These are not documents which men are fond of collecting, and nine debtors out of ten would forthwith burn them all, including the bill. What effect has this upon the onus resting on the sequestration trustee? The documents still remaining extant are the original protest in the Register House, Edinburgh, containing a copy of the bill, and probably a press copy of the schedule of charge in the messenger's records, as well as a draft of the execution of charge in his hands. It seems not doubtful that the trustee in the sequestration can easily discharge the onus, if all that that means is that he must prove that as historical facts a charge was given and expired without payment. But is that enough? Summary diligence is an extreme step, partakes of the highest technicality, and is subject to scrutiny equal to that which was in former days applied against entails. The difficulty appears to centre in the
In all questions of [notour] bankruptcy the diligence should be examined in order to discover whether any objections lie to the proceedings. This applies even in questions between the holder and the acceptor. But there is authority for saying that, if possible, it applies still more strongly in questions of competition between creditors, and that, of course, is the nature of those questions under the Act, 1696, for they are questions between one particular creditor and the general body of creditors represented by the trustee. Now, if the documents are not extant, and, above all, if the original bill cannot be produced, how is the attacked creditor to avail himself of this right of scrutiny? The suggestion is that the bill may have suffered from such a defect as, for instance, one important word written upon erasure, say, in the amount. Assuming that that would have made the charge bad, would the charge on its expiry, without payment, have brought down the other creditor's security? It is thought not. If that be so, is the sequestration trustee entitled to any presumption which would enable him to get over the difficulty? or does he discharge his initial onus when he proves that a charge was de facto given and expired without payment? and does the onus then shift so that it lies on the defender to establish, affirmatively in defence, that there was a vitiation which made the summary diligence bad? Has the maxim omnia rite et solemniter acta any application? In Drummond v. Clunas, etc., Ltd. (1909 S.C. 1049) the question did not arise between competing creditors, but on the question of the validity of the award of sequestration, and in a case where something like contempt of court had been committed by the debtor having destroyed the bill and other documents after a diligence had been granted for recovery of them. Standing the rule of the 1696 Act, it does not do to forget that the general body of creditors have their rights against the individual creditor maintaining his security, and it may be said that those rights cannot be allowed to be defeated by an accident, namely, the destruction of the documents for which the general body of creditors and the trustee have no responsibility. They may also seek to eke out their case by appealing to the fact that the original bill must be produced at the register house when the protest is given in to be recorded,
and that the bill and copy are there compared against each other before the protest is accepted for registration. It does not very clearly appear what is the measure of scrutiny which is in fact applied on that occasion, nor what power or duty the keeper of the register has to reject a protest because the bill, though quite a good document of debt, labours under some defect, which in his opinion makes it ineffectual as a warrant for summary diligence, if in point of fact the protest contains a true copy of the bill as it exists. It is not known that there is any law on this subject, but reference may be made to the remarks of Lord Fullerton in Gordon v. Sloss (1848, 10 D. 112) :
In the case of summary diligence
On the other hand, the defender in the reduction
CUPAR TOWN COUNCIL has approved of the appointment of the Town - Clerk's principal assistant, Mr David M. Baird, writer, as Depute-Town-Clerk and Depute-Clerk of the Police Court.
Mr Baird is a native of Rothesay, and has for the past four years acted as managingclerk to Brown, Mair, Gemmill & Hislop, writers, Glasgow, and was previously in the conveyancing department of Messrs Moncrieff, Warren, Patterson & Co., writers, Glasgow. He was selected from many candidates for the short leet for the County Clerkship of Bute.
THE death has occurred at Fort-William of
Mr Nigel Banks Mackenzie, solicitor and bank agent. Born eighty-eight years ago in the island of St Kilda, Mr Mackenzie went to Fort-William in 1864 and entered into partnership with the late Mr James MacGregor, W.S., upon whose death he was appointed agent there of the British Linen Bank. For half a century he was a prominent figure in the public life of Lochaber, having been Provost of Fort-William and connected either by membership or professionally with practically every board and local authority in the district. In his capacity as estate factor he was well known throughout the West Highlands. At different periods he had under his charge the properties of Lochiel, Inverlochy, Arisaig, Ardgour, Kingairloch, and Dalness.
Mr Mackenzie took a deep interest in the promotion of the West Highland, the Mallaig, his firm having acted as local agents during and the Invergarry and Fort-Augustus railways, the promotion of the respective Parliamentary bills. A Justice of the Peace for the counties of Inverness and Argyll, he was an honorary Sheriff-Substitute for Inverness, Elgin, and Nairn at Fort-William. His services frequently in request at sheep-stock valuations, while he also held the appointment of valuation commissioner under the Death Duties Act. In the social life of the community Mr Mackenzie held an honoured place, and was a keen sportsFriday, 5th December 1924. The man. He also took a keen interest in moveHon. Lord Hunter and the Hon. Lord Black-ments connected with the language and customs burn. J. M. Hunter, Esq., Advocate-Depute; of the Gael. Messrs Alexander Rae and V. S. M. Marshall,
GLASGOW WINTER CIRCUIT, 1924.-Monday, 22nd December 1924, at eleven o'clock. Pleading Diet-Friday, 12th December 1924. Service
FACULTY OF ADVOCATES.—Mr David Edwards, M.A., LL.D., Aberdeen, Registrar of the Supreme Court of Kenya, East Africa, and Mr James Frederick Gordon Thomson, M.A., were admitted to the Faculty of Advocates on 7th November.
The General Editor will be pleased to consider Articles of Legal Interest, and if accepted for publication these will be paid for, but no responsibility is undertaken for the safe custody and return of MSS.