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Even in its land laws England is at least as conservative as Scotland, and the defences which have been abandoned south of the Tweed cannot longer be maintained on the other side. The position of ground-annuals as regards succession (and feu-duties are substantially in the same case) would of course be swamped in a general assimilation of realty and personalty in that respect, which is what must be the objective of the next Succession Act, following the recent English precedent, which has passed Parliament but is not yet in operation.
These important changes when they come under consideration will be found to be a good deal hampered by our fetters on testamentary capacity in the form of the legal rights of spouses and children. On the whole we think good has been done by the proposals in the first Bill in the matter of legal rights having been put forward and then dropped. The whole subject of legal rights is at present in a confused and unsatisfactory state. There is no absolute or indefeasible legal right, at least not in regard to personal estate. Not all personal estate contributes, and even within the contributing class the rights are in many cases defeasible by the words 'heirs excluding executors. Material technicalities of that kind were not touched by the first Bill, but generally the nature of the proposals was to increase the class of assets out of which jus relicti, jus relicta, and legitim are payable. It is just as well that these proposals have fallen through, for there is certainly no consensus of opinion in favour of the extension of legal rights. Indeed it is just a question whether these rights ought not to be abolished altogether. That is an aspect which must be considered when a general Succession Bill is prepared. No one would suggest that the extinction of legal rights in personal estate is a fitting subject for a (heritable) Conveyancing Bill, which tends strongly to prove that the whole subject of these rights is alien to such a measure.
The fact, however, is that legal rights are to some extent retained in the new Bill. The retained proposals are
1. All personal bonds in whatever position, unless destined to heirs in heritage or excluding executors, are to contribute to jus relicti and jus relicta, as they at present do to legitim. 2. The clauses applicable to terce and courtesy stand.
As we understand, both of these matters came within the previous general condemnation of the Bill as exceeding its proper sphere, and it will not be surprising if the opposition is renewed to these partial retentions. It might be just as well to drop them also and to let them be reserved for a separate self-contained Bill relating to succession. And there are other
reasons. The first of these proposals is aimed. at the removal of the antiquated rule that personal bonds after the term of payment of principal, or the first interest term, or if the maturity is distant, are heritable between husband and wife. No doubt that is an anomaly, but not more so than other rules affecting legal rights which it is proposed to pass over in silence. For instance, jus relicti is not payable on divorce, and nothing is said about that, and even the one anomaly which is dealt with is removed only in death cases and is left standing in divorce cases, for which it is hard to suggest a reason.
In the cases of terce and courtesy it cannot be denied that part of the proposals in the Bill is of a strictly conveyancing nature. But that cannot be said of the clauses extending those rights to cases where there is no infeftment, and extinguishing some of the inequitable preferences which a tercer at present enjoys over uninfeft disponees and personal creditors, nor of the clauses for standardising, valuing, and redeeming terce and courtesy. Terce and courtesy are to apply to estate held on " personal title capable of being completed by infeftment," but no attempt has been made to answer the criticism whether this includes estate held by way of personal right. We infer that it does not, and that, notwithstanding clause 21 (4) (a), it is not intended that all heritable estate of a quality which would at present yield terce or courtesy, shall in future do so if it " belonged to the deceased, irrespective of the form of his title or right. That being so, it is more than questionable whether it is worth while to deal in this Bill with one or two technical anomalies, while others are left standing. This more especially if the succession scheme is going to include the abolition of those rights, as dower and curtesy have gone in England.
With so much gone from the Bill, what remains? Well, in one sense not very much. We mention the following
1. The omission of all reference to the property, and of all deduction of title, in documents of transmission and extinction of heritable securities. Really we are not sure that this is not about all of value that the Bill amounts to. It is valuable, but it could have been put into a very few lines, and might have been law at least ten years ago. It was strongly opposed on the first Bill, but from that attitude we then clearly dissociated ourselves, and do so again. No modification ought to be accepted.
2. The positive and negative prescriptions are both definitely cut down to twenty years. We repeat our plea for a ten-year positive prescription in favour of parties acquiring in good faith and for value, as was recommended by
the W.S. Society in a report which had obviously received much careful thought.
3. Notices of title. But whether these will be any improvement in irredeemable rights is doubtful. They ought to be greatly simplified, e.g. (1) they should be allowed to be endorsed, in which case they might be purely relative and extremely short; (2) the reference to burdens might safely be deemed to be repeated as contained in the last infeftment referred to; this would be a great boon, for those references are often very long; and (3) no witnesses. Many matters of detail might be noticed here, but we confine ourselves to mentioning what appears to be the needlessly committal nature of the acknowledgment of omitted conditions in Schedule E; besides which, the terms are in another sense too restrictive, for the omission might be in a series of writs. A better form would be:
I, A. B. (designation), acknowledge that my title to the house 1 King Street, in the City and County of Edinburgh, is subject to the burdens specified in (refer to deed or deeds), so far as these burdens are valid, subsisting, and applicable.
EXCISE LIQUOR LICENCES.
By J. R. HALDANE, M.A., LL.B., Advocate,
In previous articles 1 the scope of the Justices' jurisdiction in regard to the sale of exciseable liquors was dealt with. Much misunderstanding appears to prevail in the mind of the public as to the legal powers of the Commissioners of Customs and Excise and the legal character and effect of the Excise Liquor Licences issued by them.
The Commissioners of Customs and Excise are mere tax-gatherers. The Excise Department under their control is a mere revenuecollecting instrument. Its Licences are mere receipts. Excise Licences of all sorts regulated by a common Excise Code, embodied in various Excise Management Acts, and Revenue and Excise Acts. (The principal are the Excise Licences Act, 1825; Excise Management Act, 1827; Excise Management Act, 1834; Excise Management Act, 1841; Finance (1909-10) Act, 1910; but other management enactments are interspersed among the clauses of a very great number of Revenue and Excise Acts.) When Parliament enacts any new form of taxation to be paid by means of Licences, the new denomination of Licence comes under this common code unless it is expressly enacted otherwise. (See, e.g., the Excise Management Act, 1827, section 3.)
1 Ante, pp. 20 and 29.
Liquor Licences, Tobacco Licences, Gun Licences, Game Licences, Dog Licences, Motor Licences, for example, are all in common regulated by it. An Excise Licence gives no legal right or title of any sort to anyone. Although it may be expressed as "authorising certain things (see, e.g., Schedule 1 of the Finance (1909-10) Act, 1910), that means no more than that it authorises these things to be done without involving any further payment of the particular tax to which it relates. does not even absolve from payment of other taxes for the same operations. Though a Wholesale Dealer's Liquor Licence, for instance, authorises" certain sales, that does not authorise the transaction of such sales without paying income tax upon them.
An Excise Licence is the proper legal evidence of the payment of the tax to which it relates. It has no other legal effect. It differs from a the tax to which it relates must be paid in receipt for other taxes only in respect that advance. The mere payment of the tax confers no legal right or title. A Game Licence, 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 entitled to shoot game he must first either acquire a sporting estate or obtain a permit from the owner of one. If, without such permit, he does shoot game he will be liable to a prosecution for poaching. In that prosecution his possession or otherwise of an Indeed any question put to any witness tending Excise Game Licence will be totally irrelevant. to shew that he does or does not possess one will be disallowed as tending to prejudice the accused. If it is put to the accused himself, he will be informed, before he answers it, that On the other hand, he is not obliged to do so. if the Excise Authorities also prosecute him under that Excise Code for an Excise penalty for shooting game without a Game Licence, the same applies to any question as to his possession of a permit to shoot over the place concerned. It is totally irrelevant to that prosecution whether he was poaching or no. And before the holder of a Gun or a Game Licence is entitled by law to keep or use a gun he must also obtain the permission of the for and obtaining a Firearm Certificate, under Police Authority of the district by applying the Firearms Act, 1920 (and must satisfy the Police that he needs to keep or use a gun), unless he is a manufacturer or dealer in firearms or one of various specified classes who necessarily have them in their possession in the bona fide does not relieve him of the obligation of taking prosecution of their calling. This Certificate out an Excise Gun or Game Licence (10 & 11
Geo. V. cap. 43, sections 1 (9) and 12), nor does the possession of a Gun or a Game Licence entitle him to keep or use a gun without a Certificate. The possession or otherwise of an Excise Gun or Game Licence is entirely irrelevant to the offence of having a gun in one's possession without a Certificate under the Firearms Act.
There is nothing in any of the enactments, nor is there any judicial authority, for any suggestion that Excise Liquor Licences are in any way excepted from this general law. They are regulated side by side with the other varieties of Excise Licences in the same statutes (referred to above) without any distinction being drawn between them. They confer no legal right or title on anyone to sell liquors. They merely entitle the holder to maintain in a Court of law that he has duly paid the Liquor Tax laid on anyone who conducts the particular class of business to which it relates, for a particular period. It is a mere receipt for the tax. If he wishes to be entitled to sell liquor he must first obtain the permission of the proprietor of his premises; and if he wishes to sell direct to the consuming public he must also obtain the permission of the Justices' Licensing Court of the area. His payment of the Excise Duty on his business gives him no more legal right to conduct that business than does his payment of the Income Tax upon it.
On the other hand, the law gives to the Justices in each area full control over all sale of exciseable liquors by retail (i.e. direct to the consumer) within their area. No one may sell them by retail without their permission to do so, granted by means of a Certificate under the Licensing (Scotland) Act, 1903. So far as this Liquor-Control is concerned (i.e. so far as the Licensing Act is concerned), any question as to whether any person possesses an Excise Liquor Licence of any sort is of no more concern than whether he has paid his Income Tax on the business, or any of his other rates or taxes. It is of no more concern than the Game Licence of the poacher is to the proprietor of a shooting. No reference to any Excise Licence, indeed, would be permitted in the prosecution of anyone under the Licensing Act for trafficking without a Certificate, unless there were some very exceptional circumstances to render the matter relevant as an item of proof that he was conducting a business in exciseable liquors which was illicit quoad the Licensing Acts, as, for instance, the fact that the accused had paid for an Excise Licence although there was no one in the district with whom he could legally trade under the Licensing (i.e. the LiquorControl) Acts; and, of course, his Income Tax returns and receipts would be equally, or, rather, more relevant in that connection.
Some confusion appears to have arisen in the minds of the public, and even of the Police, owing to the fact that no one can obtain a Retailer's Excise Liquor Licence without producing a Certificate of the Licensing Court. (The title "Licensing," by the way, as applied to the Justices' Liquor-Control Court and to the "Licensing Licensing" Act, is a misnomer. It is really a Certificating or a Temperance Actanother fruitful source of popular misunderstanding.) The object of this enactment is obvious. It is merely in order to deprive shebeeners of the opportunity of sheltering their illicit traffic behind an ostensibly legitimate trade, and also to enlist the aid of the Excise officers in the detection and punishment of any evasion of the Justices' control. Without this precaution, whether the shebeener's Excise Licence were a Wholesale Dealer's or "Retailer's one he could always allege that he was only really conducting a wholesale business (i.e. one with the Trade alone), which is outside the Justices' control, because wholesale and "retail" have quite arbitrary meanings for the purposes of Excise Liquor Licences while they have their ordinary meanings as regards the "Licensing " Acts. The holder of a "Retailer's " Excise Licence, for instance, might say that he was in reality only selling to the Trade, although in the smaller quantities covered by a Retailer's Excise Licence. And he might point to the fact that he had openly taken out an Excise Licence as corroborative evidence of this. Again, the Excise Authorities are only concerned with his possession or otherwise of an Excise Licence. They are not concerned in any way with any prosecution for trading without a Certificate. Consequently by depriving the shebeener of the chance of obtaining a Retailer's Excise Licence the assistance of the Excise Authorities is enlisted in hunting him out, and of the Excise penalties in restraining him. Such considerations do not apply to Wholesale Excise Licences, because a person who wishes to sell to the general public would seldom find it possible to do a business of profitable proportions if he confined his sales to the larger "Wholesale quantities to which alone a Excise Licence applies, and so soon as he sold in any lesser quantities the Excise Authorities would be concerned to detect and prosecute him. (The later No-Licence legislation has, of course, inverted this business prospect in those "No-Licence Areas where the Police permit the authority of the Licensing Justices to be flouted by the holders of Excise Wholesale Dealer's Licences.) On the other hand, bona fide wholesale dealing (i.e. inter-trade business) is outwith the Justices' powers of control, and few engaged in it want to deal in the
For the same reasons any Excise Licence of whatever kind held by a person who is convicted of trafficking without a Justices' Certificate is by law automatically forfeited. The clerk of the convicting Court has by law to inform the Excise Authorities and they have to cancel it (Licensing Act, sections 46, 100; Excise Licences Act, 1825 (6 Geo. IV. cap. 81), sections 22, 23). The effect of this is that the tax which he has paid for the unexpired portion of his Excise Licence is forfeited, and thus becomes an additional penalty, and if he continues business of any sort in liquors he will become liable to an Excise penalty in addition to any further fine for trafficking without a Certificate.
These enactments do not in any way affect the legal character of these Excise Liquor Licences as mere receipts for a tax. There are parallel provisions in the case of Firearms Certificates. Thus, no one may sell any firearm to anyone unless the purchaser produces a Firearm Certificate, and the seller must immediately notify the Police of the sale; but a dealer in firearms does not require to produce any Certificate when he purchases. (Firearms Act, section 2 (5)). Had the Firearms Act enacted that the Excise Authorities should not issue a Gun or a Game Licence to anyone except on production of a Firearm Certificate (as it well might have done, as an extra precaution) the parallel would have been complete.
Conversely, the Excise Authorities have no discretion in regard to the sale of Excise Licences. Anyone who pays for one, whether in a Post Office for a Gun Licence, for instance, or at an Inland Revenue Office for a Liquor Licence, is bound to get it. He has an express legal right to get it (Excise Licences Act, 1825 (6 Geo. IV. cap. 81) section 6). He can no more be refused than he can be refused postage stamps. Anybody is entitled to pay any tax he chooses and to obtain the appropriate receipt for his payment. The Excise Authorities are not given the power, and are not allowed, to enquire what use the applicant for a Licence (of any kind) intends to make of it or whether he has any legal right or title to the thing or 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
tions. There are the cases noted above in regard to the production of a Certificate in order to obtain a Retailer's Excise Liquor Licence, and there is also an exception in regard to anyone who is known to the Excise Authorities to be under conviction for trafficking without a Certificate. The No-Licence Act (i.e. the Temperance (Scotland) Act, 1913) makes a similar exception in the case of new "Wholesale Excise Licences in a No-Licence Area (i.e. those not held for a year at least before the No-Licence Resolution came into force). The reason of this is very obvious. Such a Licence may so very easily be used to cloak a business which in reality is not wholesale but with the general public, and as there are no legitimate retail businesses in the area, anyone who wishes to start an ostensibly wholesale business in a NoLicence Area is suspect of wanting in reality either to start shebeening (that is, selling to the general public), or to supply shebeens. The No-Licence Act consequently decrees that he must first go to the local Justices' Licensing Court, and, having satisfied them of his bona fides, obtain a Certificate from them, just as in the case of a retailer in other areas.
There appears to be also some confusion in the public mind owing to the fact that the English "Licensing" Acts expressly define "retail" selling of intoxicating liquors as being sale in the same quantities as those to which an Excise Retailer's Licence refers. In England the two Codes, although entirely separate, thus run on parallel lines. The Justices' control over sales to the general public covers, in England, only such sales up to the maximum quantities to which an Excise Retailer's Liquor Licence applies. All sales in larger quantities are expressly excluded from the jurisdiction of the English Justices' control. (See the English cases quoted ante, p. 25.) There is no such arbitrary limitation, however, of the jurisdiction established in the Justices' Licensing Courts in Scotland by the Scottish "Licensing Act; and the reasons are stated at length in the former articles referred to above why "retail sale appears to mean, in the Scottish Acts, sale direct to the consuming public, and the jurisdiction of the Licensing Court in Scotland extends to all such sales. Genuine wholesale businesses (that is, the supplying of those actually engaged in the Trade), and manufacturing, alone, appear to be outwith the control of the Scottish Justices. No one may sell liquor in Scotland direct to the consuming public without a Certificate of the Licensing Court.
EDINBURGH LEGAL DISPENSARY.
The twenty-fourth annual meeting of subscribers and friends was held in the Goold Hall, 5 St Andrew Square, on Wednesday, 26th March 1924, at 4 P.M. Sir W. S. Haldane, W.S., presided. Mr Joseph Chalmers, S.S.C., secretary and treasurer, submitted the twenty-fourth annual report, and referred to several features of the report.
The chairman moved the first resolution : "That the report be held as read, approved of, and circulated." In doing so he regretted the absence of Sir George M. Paul, the president of the dispensary, who had all along taken a keen interest in its work. He said that lawyers have a duty of giving advice alike to the rich and to the poor, and that the Legal Dispensary was only one means by which the legal profession was carrying out the duty imposed on it. The dispensary was a splendid nursery and training for the young men of the profession. It gave them the opportunity of really learning and understanding their profession, and the opportunity of developing that sympathetic nature in dealing with troubles and annoyance whether these troubles were real or imaginary. The spirit of service which this bit of work represented had done more than anything to raise the legal profession to its present eminent position.
The Rev. Joseph Johnston, M.A., in seconding, said it must be admitted that in certain quarters the legal profession was not held in the same high repute as that of the clerical and the medical professions, and because of this the legal profession did not get the same credit for disinterested service. There was an impression that lawyers existed to exploit the weaknesses and the common frailties of humanity rather than to relieve their distress and help to carry their burdens. That such an impression was false and ungenerous was shewn by the existence of the Legal Dispensary, and by the spendid work it did during the past year. The dispensary existed to try to remove the animosity, trouble, and legal difficulty that were produced by circumstances or the wilfulness of human nature. It shews the law doing what it could to prevent people going to law, and as it was promoting goodwill and peace among them all, it deserved the practical support and sympathy of all who regarded the welfare of the city with interest.
The resolution was carried unanimously. Professor E. M. Wedderburn, W.S., moved the second resolution: "That this meeting expresses its sympathy with the work of the Legal Dispensary." He said that one of the strong features of the Legal Dispensary was that it gave advice which led to amicable settlements.
Baillie M'Laren, in seconding this resolution, made special reference to the services of the Public Defensor in the Police Court.
The resolution was unanimously adopted. Mr John A. Lillie, advocate, moved the third resolution: That the directors who retired by rotation, Messrs Dugald Maclean, LL.B., C. Guthrie, W.S., and J. N. Stewart, solicitor, be re-elected, and that all the other directors and office-bearers be reappointed."
This resolution was seconded by Mr James Wilson, police court missionary, and was passed unanimously.
Mr W. Ketchen, W.S., moved a hearty vote of thanks to the chairman, to which Sir W. S. Haldane replied.
Mr Lillie moved a cordial vote of thanks to the secretary and treasurer, and the meeting terminated.
The annual report is extremely interesting, and is in the following terms:
The directors have pleasure in submitting their twenty-fourth annual report.
The number of consultations and clients during the past year were 2049 and 1357 respectively, and the average attendance for each night was 41.81. These figures, while slightly less than the preceding year, have not been exceeded in any other year of the dispensary's existence.
At the beginning of November 1923 a third consulting room was opened. This greatly relieved the pressure felt in recent years, and enabled the lawyers in attendance to overtake the work each Tuesday evening in greater comfort, and to leave at a reasonable hour. The opening of this room necessitated an addition to the advising staff, but involved no increase in expenses. As the room is occasionally required for other purposes on Tuesday evenings, the committee of management of the Canongate Tolbooth, in which the dispensary hold their sederunts, kindly intimated that they would make no charge for the use of the room. They are warmly thanked for the consideration they have always extended to the dispensary.
The following table shews the progress of the dispensary every fifth year and gives the total number of consultations and clients since the dispensary was founded in 1900.
Average per Night.
1921-22 1922-23 1923-24
Total since opening
1,703 1,169 33.39
2,130 1,365 42.60
1 There were 49 sederunts in 1923-24 as against 50 in 1922-28.