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for Scotland under the Private Legislation Pro- hasty penologists, are not only objectionable on cedure (Scotland) Act. He served in the forces the ground of humanity, but are quite useless as during the whole period of the war.
deterrents in this class of case; they only increase the morbid excitement and the tendency
to repeat the criminal acts. In Chicago and CHRISTMAS RECESS.—Edinburgh, 4th November elsewhere in the United States psycho-analysis 1924.- The Lords of Council and Session, under is now made use of for certain classes of offenders, authority of the 4th section of the Court of but it is not possible to say at present whether Session Act, 1868, resolve to adjourn the Court or not the results justify the experiment. A A from Saturday, 20th December next, to and practical difficulty arises when resort to psychoincluding Saturday, 3rd January 1925; and analyst treatment is made in the case of sexual appoint Tuesday, 30th December, to be the offences, since a considerable body of public Box-Day in the Recess.
opinion, both on the Bench and among political J. A. CLYDE, I.P.D. enthusiasts, regards such offences as specially
odious, and is indisposed to try the effect of THE Secretary for Scotland has appointed what seems“ leniency” by using methods of Mr John Howie, solicitor, to be Clerk of the curative treatment. It will be interesting to Peace for the County of Ayr, in place of Mr watch the effect of the novel experiment now David William Shaw, deceased.
initiated at Assizes, and to see whether or not
other judges follow the example just set them, It is officially announced that, in view of -(From the “ Solicitors' Journal.")
the provisions of Part II. of the Administration of Justice Act, 1920, which provides for the MR GEO. Wood, solicitor, Eyemouth, has enforcement in England, Scotland, or Ireland, been appointed Town-Clerk of Eyemouth in of judgments obtained in any parts of His place of the late Mr Chas. Ewart. Mr Wood Majesty's dominions outside the United is son of the late Mr John Wood, solicitor, Kingdom, or in any territories under His Eyemouth. He was educated at Eyemouth Majesty's protection to which the Act extends, Public School, Patterson's Academy, Berwick, the Legislature of the Bahamas has made George Watson's College, Edinburgh, and reciprocal provision for the enforcement therein Edinburgh University. He served his articles of judgments obtained in the High Court in with his father, and was for some time with England, the Court of Session in Scotland, Messrs J, S. & J. W. Fraser-Tytler, W.s., and the High Court in Ireland, and an Order Edinburgh. in Council has accordingly been issued extending Part II. of the Act to the Bahamas.
By the death of Mr Hugh Herron (of Messrs The operation of the above-mentioned Order Crawford, Herron & Cameron, writers, 104 in Council is confined to England, Scotland, West Regent Street, Glasgow), that city has and Northern Ireland, and similar provision lost one of its oldest practising members of the has not yet been made as regards the Irish legal profession. Mr Herron, who was in his Free State by the Government of that State. 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 eradi
DECISIONS IN THE ENGLISH cating the morbid or perverse inclinations which
COURTS. lie at the root of certain crimes of a pathological character. In the case of sexual offences, which
Inland Revenue Commissioners v. Fisher's. are often committed after a blameless moral life
Executors. by men of good character and reputation, it is now generally recognised that medical treatment, rather than penal, is the proper method DISTRIBUTED IN FORM OF DEBENTURE STOCK. of attempting a cure.
a cure. Imprisonment in such A company resolved that part of its uncases only confirms the morbid tendency, and distributed profits should be capitalised by the harsher punishments, sometimes advocated by distribution of debenture stock to the ordinary
shareholders. The debentures could only be these forces have occasionally been invoked in enforced in certain circumstances. F received collision cases as an element of disturbance to in virtue of his holding in the company £65,950 navigation, upsetting the calculations of naviof debenture stock. He did not receive, nor gators and exonerating them from responsibility was he entitled to receive, any payment in cash for collision. The present volume is an attempt for his share of the bonus. Held that the to expound the action of these hydrodynamic bonus distribution was income to the recipients forces in so far as they may induce collisions and liable to assessment to super-tax.— at sea. Naturally, the well-known collision K.B. Div. (Rowlatt J.).—27th June 1924. case of “Olympic" v." Hawke" bulks largely
in the discussion ; for there the action of Inland Revenue Commissioners v. Cornish “suction ” upon the colliding vessels was Mutual Assurance Co. Ltd.
considered with a fullness of detail and a body CORPORATION PROFITS
of expert opinion not known in other cases. COMPANY- LIABILITY
In the present incomplete state of knowledge FINANCE ACT, 1920 (10 & 11 GEO. V. CAP. 18), on the subject, the effect of suction seems to SECTION 53 (2) (B). — The company in question offer ample scope for the theorising of skilled was limited by guarantee and was incorporated witnesses and the devising of ingenious defences under the Companies Acts, 1862 to 1903, on for unfortunate navigators. 10th October 1903. It carried on a mutual The Parliaments of Scotland. By Robert S. fire insurance business in Devon and Cornwall.
Rait, M.A., LL.D., Historiographer-Royal There subscribed capital. Every
for Scotland. 1924. Glasgow : MacLehose, person who had issued to him and accepted
Jackson & Co. Price 30s. net. à contract of insurance with the company became a member, and ceased to be a member
The reputation which Professor Rait has when his right to protection by or through long enjoyed as one of the greatest authorities the company terminated. Held that such a on the history of Scotland will be established company was not liable to pay corporation
an unchallengeable foundation by this profits tax. Inland Revenue Commissioners v. important work on the history of the Scottish Eccentric Club, Ltd. ( 1 K.B. 390, ante,
Parliament. The author, indeed, presents his p. 36), applied. – K.B. Div. (Rowlatt J.).-work to the public (in his own words) " with
“ 1st July 1924.
considerable hesitation,” on the ground that a considerable body of historical material con
tained in the Register House has not even LAW LIBRARY.
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 BOOK NOTICES.
modification when this material is made An Analytical Digest of Cases decided in the learned and exhaustive—and withal a readable
accessible; but the reader will find here a
Supreme Courts of Scotland and, on appeal, in the House of Lords, 1868 to 1922, pre- ancient parliament such as has not previously
-account of the evolution and working of our 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. With commendable promptitude the second The English and Empire Digest. Vol. XVIII. volume of the Faculty Digest has made its
Descent and Distribution ; Discovery, Inspec
tion, and Interrogatories ; Distress. Butterappearance. This volume brings the matters
worth & Co. down to “ Justice of the Peace. The method pursued in its compilation was sufficiently The Solicitors' Diary, 1925. Eighty-First Year of
Publication. Waterloo & Sons Ltd. explained in our recent notice of the first volume.
The Failure of State Railways. Harold Cox, Editor
of the “ Edinburgh Review.” Longmans, Green & Co..
Price 6d. Interaction between Dessels. By R. B. Bodilly,
Commander R.N., Barrister-at-Law. 1924. Reports of Tax Cases. Vol. VIII., Part 9. H.M.
Stationery Office, Imperial House, Kingsway,
Price 6d. net. That forces, not yet fully understood, operate Workmen's Compensation and Insurance Reports. between two moving ships, affecting their
Edited by W. A. G. Woods, LL.B. 1924. courses and sometimes leading to accidents, Part 2. Stevens & Son Ltd.; Sweet & Maxwell has been a growing conviction of experts for Ltd.; W. Green & Son Ltd., Edinburgh. some time. Under the loose name of " suction
Annual Subscription, 308. post free.
of a charge having been given by another THE RISK OF NOTOUR (?)
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 thatthe 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 rapt, 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, trustee takes the point under the 1696 Act, to be voyd and null.
the challenge being founded on the fact that The word “ bankrupt
bankrupt” here, of course, refers another creditor, B, had given a charge before, to the status of notour bankruptcy, and not to or within sixty days after, the constitution of séquestration or other divestiture. The usual A's security, and that the charge had expired method by which notour bankruptcy is now without payment of B's debt. In that position constituted is insolvency combined with a the decision must be that A's security is bad. charge, and the expiry of the days of charge It matters not that B's debt was paid shortly without payment of the debt charged for. In after the days of charge had expired. Indeed these circumstances the words notour bank- it would appear that, if the great bulk of that ruptcy are hopelessly and dangerously in- debt were paid within the days of charge, but accurate. Notour is understood to mean a trifling final balance was liquidated the day simply notorious, and that is supported by after the charge expired, down comes A's Jamieson's Scottish Dictionary. Now, a charge security, and though the question may not be for payment of debt is a private proceeding, raised for some years. It can hardly be said neither preceded nor followed by any publica- that this is a satisfactory state of matters, tion. It may be known to no one except the and it is known that among commercial men in creditor, his agent, the debtor, and the officer, Scotland, and generally in England, it is viewed and so far as the present writer is aware there with great disfavour. It goes without saying is no way by which third parties can ascertain that, in taking the security, the creditor A did whether a charge has been given. This is nothing wrong. It may well be that, if he had subject to a kind of quasi-qualification in the continued to press, he would have obtained case of summary diligence on bills and notes, full payment. Indeed, when the charger's for the registration of the protest is blacklisted. debt is paid in full shortly after the expiry of That is prima facie evidence of insolvency, and the charge, and long before sequestration, it it is a reasonable inference that it has been sounds the extreme of irony, and a travesty followed by a charge, or at any rate it points of justice, to say that the security given to to the danger of that possibility. But a great one creditor and accepted in good faith shall many charges are given on documents of other be defeated, and that he shall not get his money, classes involving no blacklisting.
and this by virtue of the self-same charge which Once notour bankruptcy has been constituted resulted in full payment of the charger's debt. it continues (Bankruptcy Act, 1913, s. 7). It is quite safe to say that it was the charge "until insolvency cease," subject it is under- which compelled payment of the charger's stood to the forty years' negative prescription. debt, and why the same step should have the There is the further complication that, even if double-barrelled effect of saving one debt the charge and its expiry without payment and destroying another it is not easy to underare known, it does not necessarily follow that stand in equity. If the “ bankruptcy" which there is notour bankruptcy. That requires the is required to bring into operation the rule other element of insolvency, so that the question of the 1696 Act were actually notour of notour bankruptcy or not may be pending notorious, it might well be considered that any unsolved for an indefinite time.
grievance was non-existent; but under the law It is quite settled that deeds within the terms as it now stands, as has been shown above, of the 1696 Act are not saved by the good faith this kind of bankruptcy is the very reverse of of the creditor to whom they are granted, nor notorious. There may have been nothing by the fact that he was in complete ignorance much to object to in the rule, or it may have
been a most excellent rule, even without a bill itself and to depend upon the consideration time-limit, when the bankruptcy status on which that a bill may be a perfectly valid document it was conditioned consisted of such overt of debt, and even entitled to privileges as a acts as fleeing the country, or retreating to the mercantile instrument, and yet not be so imsanctuary, or a roup, or imprisonment, for maculate as to be a good warrant for one partieach and all of these are truly notorious, and cular method of enforcing it, namely, summary would be rather more so in Scotland in 1696 diligence. Bell in his Commentaries” (ii. even than they would be now. Referring to 160 says : the practical absence of any time-limit to the effect of notour bankruptcy the author of the In all questions of [notour] bankruptcy the diliCommentaries” (ii. 169) writes :
gence should be examined in order to discover whether
any objections lie to the proceedings. This rule deserves legislative consideration; and This applies even in questions between the perhaps it ought to be provided that no [notour] holder and the acceptor. But there is authority bankruptcy should have the
effect of grounding a for saying that, if possible, it applies still more challenge (unless followed by sequestration or a voluntary trust deed for behoof of creditors) after strongly in questions of competition between the expiry of a certain time, as four or six months. creditors, and that, of course, is the nature of
those questions under the Act, 1696, for they are It is submitted that the course of legislation questions between one particular creditor and and business developments since that great the general body of creditors represented by work was published powerfully reinforce the the trustee. Now, if the documents are not suggestion of that very learned author. extant, and, above all, if the original bill cannot
Recent experience suggests what is really be produced, how is the attacked creditor to of the nature of an excrescence on, or postscript avail himself of this right of scrutiny? The to, the main theme, but one which possesses a suggestion is that the bill may have suffered good deal of interest both professionally and from such a defect as, for instance, one impractically. When a sequestration trustee portant word written upon erasure, say, in the challenges a security under the Act, 1696, on amount. Assuming that that would have made the ground of notour bankruptcy, the initial the charge bad, would the charge on its expiry, onus is on him to prove the notour bankruptcy, without payment, have brought down the other which is the essential condition of his success. creditor's security ? It is thought not. If Take the case of diligence upon a bill, and that be so, is the sequestration trustee entitled suppose that the diligence resulted in the to any presumption which would enable him charger's debt being paid, but not till shortly to get over the difficulty ? or does he disafter the expiry of the charge, though long before charge his initial onus when he proves that a the sequestration. What would naturally, and charge was de facto given and expired without indeed necessarily, happen when the debtor payment ? and does the onus then shift so that paid the charger would be that the debtor it lies on the defender to establish, affirmatively received delivery of the original bill, the in defence, that there was a vitiation which made extract protest, and the execution of charge. the summary diligence bad ? Has the maxim He would already hold the schedule of charge. omnia rite et solemniter acta any application ? These are not documents which men are fond In Drummond v. Clunas, etc., Ltd. (1909 S.C. of collecting, and nine debtors out of ten would 1049) the question did not arise between comforth with burn them all, including the bill. peting creditors, but on the question of the What effect has this upon the onus resting on validity of the award of sequestration, and in the sequestration trustee? The documents a case where something like contempt of court still remaining extant are the original protest had been committed by the debtor having in the Register House, Edinburgh, containing destroyed the bill and other documents after a copy of the bill, and probably a press copy a diligence had been granted for recovery of of the schedule of charge in the messenger's them. Standing the rule of the 1696 Act, records, as well as a draft of the execution of it does not do to forget that the general body charge in his hands. It seems not doubtful of creditors have their rights against the that the trustee in the sequestration can easily individual creditor maintaining his security, discharge the onus, if all that that means is and it may be said that those rights cannot be that he must prove that as historical facts a allowed to be defeated by an accident, namely, charge was given and expired without payment. the destruction of the documents for which the But is that enough? Summary diligence is general body of creditors and the trustee have an extreme step, partakes of the highest techni- no responsibility. They may also seek to eke cality, and is subject to scrutiny equal to that out their case by appealing to the fact that the
was in former days applied against original bill must be produced at the register entails. The difficulty appears to centre in the house when the protest is given in to be recorded, and that the bill and copy are there compared CUPAR TOWN COUNCIL has approved of the against each other before the protest is accepted appointment of the Town - Clerk's principal for registration. It does not very clearly appear assistant, Mr David M. Baird, writer, as what is the measure of scrutiny which is in Depute-Town-Clerk and Depute-Clerk of the fact applied on that occasion, nor what power Police Court. or duty the keeper of the register has to reject Mr Baird is a native of Rothesay, and has a protest because the bill, though quite a good for the past four years acted as managingdocument of debt, labours under some defect, clerk to Brown, Mair, Gemmill & Hislop, which in his opinion makes it ineffectual as writers, Glasgow, and was previously, in the a warrant for summary diligence, if in point conveyancing department of Messrs Moncrieff, of fact the protest contains a true copy of the Warren, Patterson & Co., writers, Glasgow. bill as it exists. It is not known that there is He was selected from many candidates for the any law on this subject, but reference may be short leet for the County Clerkship of Bute. made to the remarks of Lord Fullerton in Gordon v. Sloss (1848, 10 D. 112): In the case of summary diligence .... the documents must be so free of all doubt or ambiguity as to Mr Nigel Banks Mackenzie, solicitor and bank
THE death has occurred at Fort-William of demand the issue of the warrant for the diligence from the officer, whose duties are merely ministerial, agent. Born eighty-eight years ago in the island and who has no authority to exercise any judicial of St Kilda, Mr Mackenzie went to Fort-William function, or to form any judicial opinion upon tbe in 1864 and entered into partnership with the subject.
late Mr James MacGregor, W.S., upon whose On the other hand, the defender in the reduction British Linen Bank. For half a century he
death he was appointed agent there of the seems to occupy a strong position when he admits the historical facts that a certain bill was a prominent figure in the public life of existed ; that a charge was given upon it on a and connected either by membership or
Lochaber, having been Provost of Fort-William certain date; and that the charge expired without payment, but pleads that those facts professionally with practically every board
In his stop far short of discharging the onus which and local authority in the district. rests upon the pursuer, and that that onus
capacity as estate factor he was well known cannot be discharged without tabling the throughout the West Highlands. At different original bill for minutest scrutiny in the action periods he had under his charge the properties The defender can add with much force that the of Lochiel, Inverlochy, Arisaig, Ardgour,
Kingairloch, and Dalness. bill has in that respect never been submitted to anyone either entitled or bound, or, if it
Mr Mackenzie took a deep interest in the may be said without offence, competent, to promotion of the West Highland, the Mallaig, apply a legal judgment to it, and that he is his firm having acted as local agents during
and the Invergarry and Fort-Augustus railways, not to be prejudiced by the destruction or loss the promotion of the respective Parliamentary of the bill, for which he has no responsibility, bills. A Justice of the Peace for the counties The question has proved to be important, and of Inverness and Argyll, he was an honorary it seems to depend on the degree of the onus Sheriff-Substitute for Inverness, Elgin, and and on the mode of proof.
Nairn at Fort-William. His services frequently in request at sheep-stock valuations,
while he also held the appointment of valuation GLASGOW WINTER CIRCUIT, 1924.—Monday, commissioner under the Death Duties Act. In 22nd December 1924, at eleven o'clock. the social life of the community Mr Mackenzie Pleading Diet—Friday, 12th December 1924. held an honoured place, and was a keen sportsService Friday, 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, Clerks.
FACULTY OF ADVOCATES. -Mr David Edwards,
EDITOR'S NOTE. M.A., LL.D., Aberdeen, Registrar of the Supreme Court of Kenya, East Africa, and The General Editor will be pleased to consider Mr James Frederick Gordon Thomson, M.A., Articles of Legal Interest, and if accepted for publicawere admitted to the Faculty of Advocates on tion these will be paid for, but no responsibility is 7th November.
undertaken for the safe custody and return of MSS.