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Lordship's opinion applies to theft, we see that it is not enough to constitute the crime, that a person should take the property of another without his consent. Before the person can be called a thief he must have taken away the article deliberately and with conscious dishonesty.
This is not the common conception of theft, and many a man lodges a charge of that crime merely because the alleged criminal has taken away something which is the property of another without the owner's consent. The essential element of deliberate taking with conscious dishonesty is overlooked.
Many circumstances may render it impossible to describe an act of taking or appropriation as wicked and felonious.
The article may have been entrusted to the taker by the owner with the purpose that the receiver shall retain it indefinitely, but without actually transferring the right of property, and thus leaving the receiver subject to a possible accounting at a future date. For example, an old-fashioned silver kettle had been bequeathed to a woman in liferent, and to her younger sister in fee. The older woman had possessed the kettle for some years, when she resolved to give up housekeeping, and forgetting the liferent, instructed a firm of auctioneers to sell her effects. The younger sister, with a bitter animosity not uncommon among relatives, was determined to have the liferenter prosecuted for theft, and would have succeeded if she could have produced evidence of felonious intent.
A person may take away an article without the intention of appropriating it. Alison (I. 270) suggests the cases of a servant taking his master's horse to ride on his own errand, or a farmer taking his neighbour's plough to till his own land. Such conduct is wrongful, but not theft.
The most frequent case of this class is where an article has been taken under a mistaken idea of right. To constitute his act a theft, the taker must know that the article taken belongs to another, and that he is depriving that other of his right of property in it. Alison declares (p. 271) that taking is not theft, although the taker means to dispose of the thing, if he takes it in the belief, however erroneous, but founded on probable grounds, that the thing is his own. Instances occur in testamentary successions. A younger son of a deceased man, having failed to satisfy his brothers of the extent of his interest in his father's moveable estate, may go by night and clandestinely carry off some articles which formerly belonged to his father. Such conduct is highly culpable, but the way to rectify the wrong-doing is not to charge the younger brother with theft.
in this manner many delicate questions may arise. The important point to bear in mind is that the person who takes away the article must have a colourable ground for believing that the thing is his. A man must not act directly in the face of the law, and try to excuse his conduct by a suggestion of violent passion, or upon some singular idea of his own. That was the fatal error of George Robertson and his companions, whose rash behaviour in a Customs case forms the foundation of Sir Walter Scott's "Heart of Midlothian."
If the taker believes on rational grounds that the owner will not object to his taking the article, although he has not asked permission, his taking will not be theft. Presumed consent may be inferred from the near relationship or intimate connection of the parties, and if such consent can be sufficiently established, it will remove the prima facie evidence of felonious intent.
It is not the writer's intention to discuss the whole law of theft, and the matter may be left there. His point is to emphasise the fact that before a man can be charged with theft, it is not enough to shew that he took something without first having procured the owner's consent. Unless the man can be shewn to have acted wickedly and feloniously, it cannot be said that he has broken the commandment 'thou shalt not steal." H. H. B.
NOTES FROM PARLIAMENT HOUSE.
The result of the General Election has not
proved satisfactory to the members of the Bar who stood as candidates. Only four out of eighteen aspirants succeeded. Sir Robert Horne and the Solicitor-General held their seats in Glasgow and Aberdeen respectively for the Unionists, while Mr Duncan Millar was again returned as a Liberal for West Fife. The only new Member of Parliament in the ranks of the Faculty is Mr Macgregor Mitchell, elected as a Liberal for East Perth. Many of those who failed were only rejected by what are, in these days of enormous electorates, comparatively small majorities. The general political situation is at the time of writing obscure; whatever be the upshot, the arrangement of the Scottish legal offices is sure to be of unusual interest. Defeated candidates may have been comforted by some verses entitled Hope," appearing in an Edinburgh evening paper consecutively with a paragraph about Parliament House politicians, and beginning with the words: Weep not, beloved, I shall come again."
The generosity of Mr Hugh Macmillan, K.C., has brought the manuscript of "Redgauntlet, It is apparent from what has been said, that recently sold in London, to its rightful resting
opinion, one of so much substance, although
Another grievance springs from the fact that no one can now as formerly get a copy of the judge's opinion in a case except through his clerk. "The process in every case should be complete in itself, with a record of all judicial acts, decrees, and opinions on the file. No one without immense trouble can get at the opinions of judges in Outer House cases where no record of them enters any of the 'Law Reports.' Every case that goes to the Unextracted Department should contain all opinions delivered in connection with it.”
place the Laigh Parliament Hall. It may
It is a matter for surprise that no enterprising member of the junior Bar has ever betaken himself with his brass plate to Glasgow, where a specialist in Sheriff Court work could do far better than the average junior can do here. Think of the success of men at the English Provincial Bars.
The first "clog" of which our correspondent speaks was certainly one hard to justify. There was no excuse for the increase of Court fees, fee fund or otherwise. The Treasury may have called for such increases in blind zeal for economy at any cost. It is simply absurd to say that justice should pay its way. And the irritating and taximeter system upon which some of the increased fees are requested does not reflect any credit on the business sense of any committee that recommended Practitioners in the Sheriff Courts would not submit to such a system."
The next suggested grievance is not, in our
THE Secretary for Scotland has been pleased
INCORPORATED SOCIETY OF LAW AGENTS IN SCOTLAND.
DIVORCE IN SCOTLAND.-An analysis of the figures relating to divorce cases in Scotland for 1923 shews a continuation of that decrease A meeting of the Council was held in Edin- which has been progressing since 1920. In burgh on 22nd November last, Mr John Patti-the latter year the number of cases had risen to son, Paisley, the President, in the chair.
Railways Act-Scottish Trusts.-It was reported that the question of identifying particular trusts holding railway stocks in the registers and stock certificates was still under discussion. The Council were of opinion that it was important to have the particular trusts identified, and agreed to press the point.
Law Agents Bill. It was reported that this Bill had been submitted to the Lord President of the Court of Session for his consideration, and that the Lord President had conferred with members of the Joint Committee, who now awaited the receipt of his opinion.
Income Tax.-Letters were submitted from a member as to whether the annual subscriptions payable to the Incorporated Society and to his local Society of Solicitors, as also his outlays for "Law Reports" and legal works, were deductable from the income of a legal business as business expenses, prior to assessment of income tax. The Council were unanimously of opinion that all such items were proper deductions.
Income Tax Form No. 8 -Letters were submitted from the Dumfries Faculty of Solicitors as to the liability of law agents to supply particulars of income received by them for clients and chargeable under Schedule D. The matter was continued for enquiry and further consideration.
Committees.-The standing committees of the Council were re-elected after revisal.
Remits.-Remits were made to the Bills Committee to report on remuneration of Sheriff Court officials, Guardianship of Infants Bill, and amendment of Trusts (Scotland) Act, 1921.
A number of interesting letters from members of the Society, dealing with sundry matters, were read.
Table of Fees.-It was reported that the Joint Committee of Legal Societies still awaited reports from some of the societies on the proposals for a new Table of Fees. It was agreed that the societies should be asked to complete their reports as soon as possible.
New Members.-The following were admitted members of the Society :-Messrs Alastair Dallas, W.S., Edinburgh; William Mitchell Lyle, John G. Patrick, Thomas G. Menzies, and John Barbour, all of Glasgow, and William G. M. Dobie, Maxwelltown.
MR A. A. BUIST, W.S., has commenced business at 2 Queen Street, Edinburgh.
the unprecedented total of 810. In 1921 the total fell to 528, and in 1922 to 401. The total for 1923 was 370.
Out of the total of 370 cases which were disposed of, decree of divorce was granted in 364, and refused in 6. Adultery formed the ground on which 204 cases were raised, and desertion led to 166 actions.
The cases in the Court of Session were distributed amongst the judges as follows: Lord Ashmore, 185; Lord Murray, 68; Lord Constable, 51; Lord Morison, 46; and Lord Blackburn, 20.
THE volume of "Scots Law Times" for 1923, just completed, contains reports of no fewer than 249
cases. These are comprised of Inner House 99, Outer House 55, Bill Chamber 4, Teind Court 1, Justiciary Court 13, Valuation Court 5, House of Lords 11, and Sheriff Court 61. With the annual subscription of £2, 10s., this works out at the small cost to subscribers of 24d. per case, assuming no charge for Statutes, News, etc.
FACULTY OF ADVOCATES.-At a meeting of the Faculty of Advocates held on 11th December, the Vice-Dean (Mr C. H. Brown, K.C.) presiding, Mr James Roberton Christie, O.B.E., K.C., was appointed as one of the Edinburgh Ecclesiastical Commissioners for three years from 1st January next, in terms of the Annuity Tax Abolition Act of 1860, and Sheriff Crole was reappointed as one of the Managers of the Royal Infirmary for the ensuing year. The presentation to the Advocates' Library by Mr H. P. Macmillan, K.C., of the manuscript of "Redgauntlet" was formally reported, and it was resolved that the Dean should be requested to convey to Mr Macmillan the thanks of the Faculty.
SOCIETY OF WRITERS TO HIS MAJESTY'S SIGNET.-The following were admitted, on 18th December, members of the Society of Writers to His Majesty's Signet: Henry Vans Anderson, Glenburn Hall, Jedburgh; Simon Fraser, 19 Ainslie Place; Alfred Charles Macaulay, Bank House, Golspie; Robert Carfrae Notman, B.L., 3 Magdala Crescent; William George Beauchamp Oliver, LL.B., 11 Royal Circus; and John Patrick Pattullo, 16 Grosvenor Street.
We note that Mr C. Strang Watson, solicitor and notary public, has acquired the business formerly carried on by Mr John G. Todd as a solicitor at 22 Bernard Street, Leith.
ACT OF SEDERUNT ANENT C.A.S., Book L, CHAPTER XIII.—PROCEEDINGS UNDER THE WORKMEN'S COMPENSATION ACTS, 1906 TO 1923 (6 EDW. VII. CAP. 58; 9 EDW. VII. CAP. 16; 8 GEO. V. CAP. 8; 8 & 9 GEO. V. CAP. 14; 13 & 14 GEO. V. CAP. 42). [Edinburgh, 21st December 1923.]
THE Lords of Council and Session, in virtue of the powers conferred by the Workmen's Compensation Acts, 1906 to 1923, and considering that in consequence of the passing of the Workmen's Compensation Act, 1923, it is necessary to alter, amend and extend the provisions enacted by C.A.S., Book L, Chapter xiii., as amended by Acts of Sederunt dated 6th July 1915 and 25th May 1920: do hereby repeal the said Chapter xiii. (except the Appendix (Forms I. to XIII.) thereto) and the said Acts of Sederunt dated 6th July 1915 and 25th May 1920, and in lieu thereof declare and enact as follows:
1. Employment of Agent and Counsel.-A party to any arbitration under the Acts may appear in person, or be represented
(a) By counsel;
(b) By a duly qualified law agent; or
(c) Where written authority from him is produced, by a member of his family, or any other person;
but no fee paid to a counsel shall be allowed on taxation, unless the arbitrator has certified that the employment of counsel was proper; and no person other than a counsel (when the appointment of counsel is authorised) or a duly qualified law agent shall be entitled to have any fee or reward for appearing or acting on behalf of any party in an arbitration under the Act; provided always that an arbitrator may, in the case of a workman appearing in person, or a member of his family appearing for him, or in the case of a manager, clerk, or other servant appearing as the representative of an employer, make such allowance in respect of loss of time and travelling expenses as he shall think reasonable.
An application under paragraph 9 of the First Schedule to the principal Act may in the case of neglect of children by a widow be made by the Procurator-Fiscal of the Sheriff Court or by the Parish Council.
2. Application for Arbitration.—An application for the settlement by arbitration of any claim for compensation under the Acts shall not be made unless and until some question has arisen between the parties, and such question has not been settled by agreement. The application shall state concisely the question which has arisen. 3. Parties to Arbitration.-An application for the settlement by arbitration of the amount payable as compensation under the Acts in a case where death has resulted from the accident may be made by the employer, or by the executor or other legal personal representative, if any, of the deceased workman, or by all or any of his dependants. It shall set forth the names of all the dependants (including those persons who claim to rank as dependants) so far as known to the applicant or applicants, and, where it is presented by or on behalf of some only of the enumerated dependants, the rest of them shall be called as respondents; provided always that if in the course of the proceedings it appears that there are other dependants than those who are parties thereto, the Sheriff may order the petition to be served upon the omitted dependants, and may sist procedure in order to enable him or them to appear.
4. Court, where Parties Resident in Different Districts.-Applications under the Acts, if the parties reside in different districts, shall be made to the Sheriff Court of the county or district of a county
1. In which the accident occurred; or
2. In the case of a claim by virtue of section 8 of the principal Act as amended, in which the workman was last employed in the employment to the nature of which the disease was due; or
3. If the accident occurred at sea
(a) in which the ship is at the time when intimation or service of the application is made; provided that such intimation or service is made to or on the master of the ship in the same county or district of a county; or
(b) in which the managing owners of the ship, or some or one of them, or the manager, may reside or have a place of business; or
(c) in which the ship is registered
without prejudice to any transfer as hereinafter provided.
5. Transmission to Forum conveniens.-If a Sheriff before whom an application under the Acts is brought is of opinion that the case can be more conveniently tried and determined in any other Court in Great Britain, he may on the motion of any of the parties make an order remitting the case to such Court, and on such order being made it shall be the duty of the sheriff-clerk to transmit the application with all the relative documents to the sheriff-clerk or registrar of the Court named in the order, and to transfer to such sheriff-clerk or registrar any money invested in connection with such application in his name as sheriff-clerk, and the case shall thereafter proceed in the last-mentioned Court as if it had originated there.
6. Transmission of Money consigned in Post Office Savings Bank.-When any money ordered to be transferred from one Court to another is invested in the Post Office Savings Bank in the name of the sheriff-clerk, such money shall be transferred into the name of the sheriff-clerk or registrar of the Court to which the money is ordered to be transferred, in accordance with regulations to be made by the Postmaster-General with the consent of the Treasury; and where any money ordered to be transferred is not so invested, it shall forthwith be so invested, and shall when invested be transferred as herein before directed.
7. Claim of Indemnity.-Where a claim for compensation under the Acts is made against a principal, he may, at the calling of the case, move the Sheriff for authority to serve a copy of the petition, together with a notice of the claim for indemnity, upon any person against whom he intends to claim indemnity, and such person may within the time fixed by the Sheriff lodge a notice of appearance. If he does lodge a notice of appearance, he shall thereafter be deemed to be a party to the arbitration, and the question of his liability to indemnify the principal may, if they both consent, be summarily and finally determined therein; provided always that, if he is held in that process not to be liable to indemnify the principal, he shall not be subjected in any part of the claimant's expenses. If he fail to lodge a notice of appearance, he shall not be entitled, in any subsequent proceedings against him at the instance of the principal, to dispute the validity of any award made under the petition, whether the same be made of consent or otherwise.
8. Claims under Section 8 of the Principal Act.-In any claim for compensation under section 8 of the principal Act as amended, if the employer alleges that the disease was in fact contracted while the workman was in the employment of some other employer, the Sheriff may grant authority to the employer to serve a copy of the application and of his averment as to the time and place of contracting the disease upon such other employer, and such other employer shall, upon such service, be held to be a party in the arbitration.
9. Incidental Applications.-Applications under paragraphs 7, 8, 9, 15, 16, or 17 of the First Schedule to the principal Act as amended, or paragraphs 9 (c) or 14 of the Second Schedule to the principal Act, shall be made by a minute, which shall be lodged in the original process, if any; and if there be no process, a copy of the recorded memorandum, certified by the sheriff-clerk, shall be lodged along with the minute, and shall be held to be the process. If there be no recorded memorandum and no original process the minute may itself be held to be the process. Such minute shall be intimated to the other party or parties interested, and thereafter be disposed of summarily, as if it were an application for settlement by arbitration under the Act. In all the cases referred to in this clause an entry shewing how the application is disposed of shall be made by the sheriff-clerk in the special register kept for the purposes of the Acts.
10. Expenses. The costs of and incident to all proceedings under the Acts shall not exceed the limits prescribed by the Act of Sederunt, and the regulations and tables of fees therein contained shall, so far as applicable, be held to apply to such proceedings. It shall be competent to an arbitrator agreed on by the parties to direct payment to his clerk of such remuneration as may be allowed by the auditor of the Sheriff Court of the district, but not exceeding a fee of £1 for each day of the trial, a fee of 5s. for each other necessary meeting with the parties, and a fee of 2s. for each necessary letter, besides outlays and copying charges.