reasons.

an

Even in its land laws England is at least as

The first of these proposals is aimed conservative as Scotland, and the defences at the removal of the antiquated rule that which have been abandoned south of the Tweed personal bonds after the term of payment of cannot longer be maintained on the other side. principal, or the first interest term, or if the

The position of ground-annuals as regards maturity is distant, are heritable between succession (and feu-duties are substantially in husband and wife. No doubt that is the same case) would of course be swamped in anomaly, but not more so than other rules a general assimilation of realty and personalty affecting legal rights which it is proposed to in that respect, which is what must be the pass over in silence. For instance, jus relicti objective of the next Succession Act, following is not payable on divorce, and nothing is said the recent English precedent, which has passed about that, and even the one anomaly which is Parliament but is not yet in operation.

dealt with is removed only in death cases and These important changes when they come is left standing in divorce cases, for which it under consideration will be found to be a good is hard to suggest a reason. deal hampered by our fetters on testamentary In the cases of terce and courtesy it cannot capacity in the form of the legal rights of be denied that part of the proposals in the Bill spouses and children.

On the whole we think is of a strictly conveyancing nature. But that good has been done by the proposals in the cannot be said of the clauses extending those first Bill in the matter of legal rights having rights to cases where there is no infeftment, been put forward and then dropped. The and extinguishing some of the inequitable prewhole subject of legal rights is at present in a ferences which a tercer at present enjoys over confused and unsatisfactory state. There is no uninfeft disponees and personal creditors, nor absolute or indefeasible legal right, at least not of the clauses for standardising, valuing, and in regard to personal estate. Not all personal redeeming terce and courtesy. Terce and estate contributes, and even within the con- courtesy are to apply to estate held on “personal tributing class the rights are in many cases title capable of being completed by infeftment, ” defeasible by the words "heirs excluding but no attempt has been made to answer the

' executors.' Material technicalities of that criticism whether this includes estate held by kind were not touched by the first Bill, but way of personal right. We infer that it does generally the nature of the proposals was to not, and that, notwithstanding clause 21 (4) (a), increase the class of assets out of which jus it is not intended that all heritable estate of a relicti, jus relictæ, and legitim are payable. It quality which would at present yield terce or is just as well that these proposals have fallen courtesy, shall in future do so if it " belonged " through, for there is certainly no consensus of to the deceased, irrespective of the form of his opinion in favour of the extension of legal rights. title or right. That being so, it is more than Indeed it is just a question whether these rights questionable whether it is worth while to deal ought not to be abolished altogether. That is an in this Bill with one or two technical anomalies, aspect which must be considered when a general while others are left standing. This more Succession Bill is prepared. No one would especially if the succession scheme is going to suggest that the extinction of legal rights in include the abolition of those rights, as dower personal estate is a fitting subject for a (herit- and curtesy have gone in England. able) Conveyancing Bill , which tends strongly With much

gone

from the Bill, what to ve that the whole subject of these rights remains ? Well, in one sense not very much. is alien to such a measure.

We mention the followingThe fact, however, is that legal rights are 1. The omission of all reference to the to some extent retained in the new Bill. The property, and of all deduction of title, in docuretained proposals are

ments of transmission and extinction of heritable 1. All personal bonds in whatever position, securities. Really we are not sure that this is unless destined to heirs in heritage or excluding not about all of value that the Bill amounts to. executors, are to contribute to jus relicti and It is valuable, but it could have been put into jus relictæ, as they at present do to legitim. a very few lines, and might have been law at 2. The clauses applicable to terce and least ten years ago.

terce and least ten years ago. It was strongly opposed courtesy stand.

on the first Bill, but from that attitude we As we understand, both of these matters then clearly dissociated ourselves, and came within the previous general condemna- do so again. No modification ought to be tion of the Bill as exceeding its proper sphere, accepted. and it will not be surprising if the opposition is 2. The positive and negative prescriptions renewed to these partial retentions. It might are both definitely cut down to twenty years. be just as well to drop them also and to let We repeat our plea for a ten-year positive prethem be reserved for a separate self-contained scription in favour of parties acquiring in good Bill relating to succession. And there are other ! faith and for value, as was recommended by

we

mere

the W.S. Society in a report which had obviously Liquor Licences, Tobacco Licences, Gun received much careful thought.

Licences, Game Licences, Dog Licences, Motor 3. Notices of title. But whether these will Licences, for example, are all in common be any improvement in irredeemable rights is regulated by it. An Excise Licence gives no doubtful. They ought to be greatly simplified, legal right or title of any sort to anyone. e.g. (1) they should be allowed to be endorsed, Although it may be expressed as “ authorising in which case they might be purely relative and certain things (see, e.g., Schedule 1 of the extremely short ; (2) the reference to burdens Finance (1909–10) Act, 1910), that means no might safely be deemed to be repeated as con- more than that it authorises these things to be tained in the last infeftment referred to; this done without involving any further payment would be a great boon, for those

* references of the particular tax to which it relates. It are often very long; and (3) no witnesses. does not even absolve from payment of other

Many matters of detail might be noticed here, taxes for the same operations. Though a but we confine ourselves to mentioning what Wholesale Dealer's Liquor Licence, for inappears to be the needlessly committal nature of stance, authorises” certain sales, that does the acknowledgment of omitted conditions in not authorise the transaction of such sales Schedule E; besides which, the terms are in without paying income tax upon

them. another sense too restrictive, for the omission An Excise Licence is the proper legal evidence might be in a series of writs. A better form of the payment of the tax to which it relates. would be :

It has no other legal effect. It differs from a

receipt for other taxes only in respect that I, A. B. (designation), acknowledge that my title the tax to which it relates must be paid in to the house 1 King Street, in the City and County

advance. The

the tax of Edinburgh, is subject to the burdens specified in

payment of the (refer to deed or deeds), so far as these burdens are

confers no legal right or title.

A Game Licence, valid, subsisting, and applicable.

for instance, does not entitle anyone to shoot game. It is merely a receipt for the payment of the tax which must be paid in advance by

anyone who shoots game. If he wishes to be EXCISE LIQUOR LICENCES.

entitled to shoot game he must first either By J. R. HALDANE, M.A., LL.B., Advocate, acquire a sporting estate or obtain a permit Sheriff-Substitute, Stornoway.

from the owner of one. If, without such a In previous articles 1 the scope of the Justices' permit, he does shoot game he will be liable. jurisdiction in regard to the sale of exciseable to a prosecution for poaching. In that proliquors was dealt with. Much misunderstand

secution his possession or otherwise of an ing appears to prevail in the mind of the public Excise Game Licence will be totally irrelevant.

Indeed as to the legal powers of the Commissioners to shew that he does or does not possess one

any question put to any witness tending of Customs and Excise and the legal character will be disallowed as tending to prejudice the and effect of the Excise Liquor Licences issued accused. If it is put to the accused himself, by them.

he will be informed, before he answers it, that The Commissioners of Customs and Excise

he is not obliged to do so. On the other hand,

The Excise Depart-l if the Excise Authorities also prosecute him are mere tax-gatherers. ment under their control is a mere revenue

under that Excise Code for an Excise penalty collecting instrument. Its Licences are mere

Its Licences are mere for shooting game without a Game Licence, receipts. Excise Licences of all sorts

the same applies to any question as to his regulated by a common Excise Code, embodied in various Excise Management Acts, and possession of a permit to shoot over the place Revenue and Excise Acts.

concerned. It is totally irrelevant to that

(The principal are the Excise Licences Act, 1825;" Excise prosecution whether he was poaching or no.

And before the holder of a Gun or a Game Management Act, 1827; Excise Management Licence is entitled by law to keep or use a gun Act, 1834 ; Excise Management Act, 1841 ; he must also obtain the permission of the Finance (1909–10) Act, 1910; but other man-Police Authority of the district by applying

, agement enactments are interspersed among for and obtaining a Firearm Certificate, under the clauses of a very great number of Revenue the Firearms Act, 1920 (and must satisfy the and Excise Acts.) When Parliament enacts Police that he needs to keep or use a gun), any new form of taxation to be paid by means

unless he is a manufacturer or dealer in firearms of Licences, the new denomination of Licence comes under this common code unless it is have them in their possession in the bona fide

or one of various specified classes who necessarily expressly enacted otherwise. (See, e.g., the Excise Management Act, 1827, section 3.) does not relieve him of the obligation of taking

prosecution of their calling. This Certificate 1 Ante, pp. 20 and 29.

out an Excise Gun or Game Licence (10 & 11

are

a

or

Geo. V. cap. 43, sections 1 (9) and 12), nor does Some confusion appears to have arisen in the possession of a Gun or a Game Licence the minds of the public, and even of the Police, entitle him to keep or use a gun without a owing to the fact that no one can obtain a Certificate. The possession or otherwise of an "Retailer's " Excise Liquor Licence without Excise Gun or Game Licence is entirely irrele- producing a Certificate of the Licensing Court. vant to the offence of having a gun in one's (The title “ Licensing,” by the way, as applied possession without a Certificate under the to the Justices' Liquor-Control Court and to Firearms Act.

the “Licensing ” Act, is a misnomer. It is There is nothing in any of the enactments, really a Certificating or a Temperance Act, nor is there any judicial authority, for any another fruitful source of popular misundersuggestion that Excise Liquor Licences are standing.) The object of this enactment is

. in any way excepted from this general law. obvious. It is merely in order to deprive They are regulated side by side with the other she beeners of the opportunity of sheltering their varieties of Excise Licences in the same statutes illicit traffic behind an ostensibly legitimate (referred to above) without any distinction trade, and also to enlist the aid of the Excise being drawn between them. They confer no officers in the detection and punishment of any legal right or title on anyone to sell liquors. evasion of the Justices' control. Without They merely entitle the holder to maintain in this precaution, whether the shebeener’s Exa Court of law that he has duly paid the Liquor cise Licence were a " Wholesale Dealer's Tax laid on anyone who conducts the particular Retailer's” one he could always allege that he class of business to which it relates, for a was only really conducting a wholesale business particular period. It is a mere receipt for the (i.e, one with the Trade alone), which is outside

If he wishes to be entitled to sell liquor the Justices' control, because "wholesale" he must first obtain the permission of the and “retail " have quite arbitrary meanings proprietor of his premises; and if he wishes for the purposes of Excise Liquor Licences to sell direct to the consuming public he must while they have their ordinary meanings as also obtain the permission of the Justices' regards the “Licensing” Acts. The holder of Licensing Court of the area. His payment of a “Retailer’s ” Excise Licence, for instance, the Excise Duty on his business gives him no might say that he was in reality only selling more legal right to conduct that business than to the Trade, although in the smaller quantities does his payment of the Income Tax upon it. covered by a Retailer's Excise Licence.

On the other hand, the law gives to the And he might point to the fact that he had Justices in each area full control over all sale openly taken out an Excise Licence as corroborof exciseable liquors by retail (i.e. direct to ative evidence of this. Again, the Excise the consumer) within their area. No one Authorities only concerned with his may sell them by retail without their permission possession or otherwise of an Excise Licence. to do so, granted by means of a Certificate under They are not concerned in any way with any the Licensing (Scotland) Act, 1903. So far prosecution for trading without a Certificate. as this Liquor-Control is concerned (i.e. so far. Consequently by depriving the shebeener of the as the Licensing Act is concerned), any question chance of obtaining a Retailer's Excise as to whether any person possesses an Excise Licence the assistance of the Excise Authorities Liquor Licence of any sort is of no more concern is enlisted in hunting him out, and of the Excise than whether he has paid his Income Tax on penalties in restraining him. Such considerathe business, or any of his other rates or taxes. . tions do not apply to Wholesale Excise It is of no more concern than the Game Licence Licences, because a person who wishes to sell of the poacher is to the proprietor of a shooting. to the general public would seldom find it No reference to any Excise Licence, indeed, possible to do a business of profitable prowould be permitted in the prosecution of anyone portions if he confined his sales to the larger under the Licensing Act for trafficking without quantities to which alone “ Wholesale” a Certificate, unless there were some very Excise Licence applies, and so soon as he sold exceptional circumstances to render the matter in any lesser quantities the Excise Authorities relevant as an item of proof that he was con would be concerned to detect and prosecute ducting a business in exciseable liquors which him. (The later No-Licence legislation has, was illicit quoad the Licensing Acts, as, for of course, inverted this business prospect in instance, the fact that the accused had paid those “No-Licence Areas where the Police for an Excise Licence although there was no permit the authority of the Licensing Justices one in the district with whom he could legally to be flouted by the holders of Excise Wholesale trade under the Licensing (i.e. the Liquor- Dealer's Licences.) On the other hand, bona Control) Acts; and, of course, his Income Tax fide wholesale dealing (i.e. inter-trade business) returns and receipts would be equally, or, rather, is outwith the Justices' powers of control, more relevant in that connection,

and few engaged in it want to deal in the

are

a

a

66

a

a

66

case

new

a

smaller quantities for which a Retailer's tions. There are the cases noted above in Excise Licence is required. Consequently it regard to the production of a Certificate in would be manifestly unfair to force them to order to obtain a “Retailer's ” Excise Liquor first obtain a Justices' Certificate as a “grocer, Licence, and there is also an exception in as the keeper of an “inn or hotel or a public regard to anyone who is known to the house ”—the only classes of business to which Excise Authorities to be under conviction Justices' Certificates apply_before obtaining for trafficking without Certificate. The their “ Wholesale Dealer's, or Manufacturer's, No-Licence Act (i.e. the Temperance (ScotExcise Licence.

land) Act, 1913) makes a similar exception For the same reasons any Excise Licence of in the

of

Wholesale Excise whatever kind held by a person who is licences in a No-Licence Area (i.e. those not convicted of trafficking without a Justices' held for a year at least before the No-Licence Certificate is by law automatically forfeited. Resolution came into force). The reason of The clerk of the convicting Court has by law this is very obvious. Such a Licence may so to inform the Excise Authorities and they have very easily be used to cloak a business which to cancel it (Licensing Act, sections 46, 100; in reality is not wholesale but with the general Excise. Licences Act, 1825 (6 Geo. IV. cap. 81), public, and as there are no legitimate- retail sections 22, 23). The effect of this is that businesses in the area, anyone who wishes to the tax which he has paid for the unexpired start an ostensibly wholesale business in a Noportion of his Excise Licence is forfeited, and Licence Area is suspect of wanting in reality thus becomes an additional penalty, and if either to start shebeening (that is, selling to the he continues business of any sort in liquors general public), or to supply shebeens. The he will become liable to an Excise penalty in No-Licence Act consequently decrees that he addition to any further fine for trafficking must first go to the local Justices' Licensing without a Certificate.

Court, and, having satisfied them of his bona These enactments do not in any way affect fides, obtain a Certificate from them, just as in the legal character of these Excise Liquor the case of a retailer in other areas. Licences as mere receipts for a tax. There There

appears

to be also some confusion in the are parallel provisions in the case of Firearms public mind owing to the fact that the English Certificates. Thus, no one may

sell
any
firearm

“Licensing ” Acts expressly define "retail" to anyone unless the purchaser produces a selling of intoxicating liquors as being sale in Firearm Certificate, and the seller must immedi- the same quantities as those to which an Excise ately notify the Police of the sale ; but a dealer Retailer's ” Licence refers. In England the in firearms does not require to produce any two Codes, although entirely separate, thus run Certificate when he purchases. (Firearms Act, on parallel lines. The Justices' control over section 2 (5)). Had the Firearms Act enacted sales to the general public covers, in England, that the Excise Authorities should not issue only such sales up to the maximum quantities to a Gun or a Game Licence to anyone except which an Excise Retailer's Liquor Licence on production of a Firearm Certificate (as it applies. All sales in larger quantities are well might have done, as an extra precaution) expressly excluded from the jurisdiction of the parallel would have been complete. the English Justices' control. (See the English Conversely, the Excise Authorities have no

cases quoted ante, p. 25.) There is no such discretion in regard to the sale of Excise arbitrary limitation, however, of the jurisLicences. Anyone who pays for one, whether diction established in the Justices' Licensing in a Post Office for a Gun Licence, for instance, Courts in Scotland by the Scottish “ Licensing or at an Inland Revenue Office for a Liquor Act; and the reasons are stated at length in Licence, is bound to get it. He has an express the former articles referred to above why legal right to get it (Excise Licences Act, “retail ” sale appears to mean, in the Scottish 1825 (6 Geo. IV. cap. 81) section 6). He can Acts, sale direct to the consuming public, and no more be refused than he can be refused the jurisdiction of the Licensing Court in Scotpostage stamps. Anybody is entitled to pay land extends to all such sales. Genuine wholeany tax he chooses and to obtain the appropriate sale businesses (that is, the supplying of those receipt for his payment. The Excise Authorities actually engaged in the Trade), and manufacturare not given the power, and are not allowed, ing, alone, appear to be out with the control of to enquire what use the applicant for a Licence the Scottish Justices. No one may sell liquor (of any kind) intends to make of it or whether in Scotland direct to the consuming public he has any legal right or title to the thing or without a Certificate of the Licensing Court. the business to which it relates. While this is the general rule of law, however, which applies in every case not expressly excepted from it, there are one or two express excep

66

EDINBURGH LEGAL DISPENSARY.

Baillie M'Laren, in seconding this resolution,

made special reference to the services of the The twenty-fourth annual meeting of sub- Public Defensor in the Police Court. scribers and friends was held in the Goold Hall, The resolution was unanimously adopted. 5 St Andrew Square, on Wednesday, 26th March Mr John A. Lillie, advocate, moved the third 1924, at 4 P.m. Sir W. S. Haldane, W.s., presided. resolution : That the directors who retired

Mr Joseph Chalmers, S.S.C., secretary and by rotation, Messrs Dugald Maclean, LL.B., treasurer, submitted the twenty-fourth annual C. Guthrie, W.S., and J. N. Stewart, solicitor, report, and referred to several features of the be re-elected, and that all the other directors report.

and office-bearers be reappointed.” The chairman moved the first resolution : This resolution was seconded by Mr James “That the report be held as read, approved of, Wilson, police court missionary, and was passed and circulated." In doing so he regretted the unanimously. absence of Sir George M. Paul, the president of Mr W. Ketchen, W.S., moved a hearty vote the dispensary, who had all along taken a keen of thanks to the chairman, to which Sir W. S. interest in its work. He said that lawyers Haldane replied. have a duty of giving advice alike to the rich Mr Lillie moved a cordial vote of thanks to and to the poor, and that the Legal Dispensary the secretary and treasurer, and the meeting was only one means by which the legal profession terminated. was carrying out the duty imposed on it. The The annual report is extremely interesting, dispensary was a splendid nursery and training and is in the following terms : for the young men of the profession. It gave The directors have pleasure in submitting them the opportunity of really learning and their twenty-fourth annual report. understanding their profession, and the oppor- The number of consultations and clients tunity of developing that sympathetic nature during the past year were 2049 and 1357 in dealing with troubles and annoyance whether respectively, and the average attendance for these troubles were real or imaginary. The spirit each night was 41•81. These figures, while of service which this bit of work represented slightly less than the preceding year, have not had done more than anything to raise the legal been exceeded in any other year of the disprofession to its present eminent position. pensary's existence.

The Rev. Joseph Johnston, M.A., in second- At the beginning of November 1923 a third ing, said it must be admitted that in certain consulting room was opened. This greatly

. quarters the legal profession was not held in relieved the pressure felt in recent years, and the same high repute as that of the clerical enabled the lawyers in attendance to overtake and the medical professions, and because of the work each Tuesday evening in greater this the legal profession did not get the same comfort, and to leave at a reasonable hour. credit for disinterested service. There was an The opening of this room necessitated impression that lawyers existed to exploit the addition to the advising staff, but involved no weaknesses and the frailties of increase in expenses.

As the room is occasionhumanity rather than to relieve their distress ally required for other purposes on Tuesday and help to carry their burdens. That such evenings, the committee of management of the an impression was false and ungenerous was Canongate Tolbooth, in which the dispensary shewn by the existence of the Legal Dispensary, hold their sederunts, kindly intimated that they and by the spendid work it did during the past would make no charge for the use of the room. year. The dispensary existed to try to remove They are warmly thanked for the consideration the animosity, trouble, and legal difficulty they have always extended to the dispensary, that were produced by circumstances or the The following table shews the progress of the wilfulness of human nature. It shews the law dispensary every fifth year and gives the total doing what it could to prevent people going to number of consultations and clients since the law, and as it was promoting goodwill and peace dispensary was founded in 1900. among them all, it deserved the practical

Average

per Night. support and sympathy of all who regarded the

1900–01

274 206 5.48 welfare of the city with interest.

1905-06

1,232

857

23.69 The resolution was carried unanimously.

1910–11

2,032 1,290

39.08 Professor E. M. Wedderburn, W.S., moved

1915-16

1,513 918 29.09 the second resolution : “ That this meeting

1920-21

1,672 1,121 32.15 1921-22

1,703 1,169 33.39 expresses its sympathy with the work of the

1922–23 Legal Dispensary. He said that one of the

2,130

42.60

1,365 1923–24

41.81 strong features of the Legal Dispensary was that it gave advice which led to amicable Total since opening 35,302 22,355 settlements.

an

common

Year.

Consultations.

Clients.