ANN.

By WM. YEAMAN,

When one was acquiring a knowledge of the principles of Scots law, or as much knowledge as would satisfy the requirements of the law examiners, it was gleaned from the textbooks what Ann stands for. After the first exhilarating effects of having been found duly qualified to practise their profession had passed off, many students no doubt resolved that they would make further research into many subjects so as to ascertain for themselves the foundations for the propositions in the text-books. They probably found, however, that it was necessary to concentrate on current practical problems and to relegate to the shelf those subjects on which they had promised themselves further enlightenment. The Church of Scotland (Property and Endowments) Bill, which is at present engaging the attention of Parliament, and particularly section 9 thereof, making provision for the abolition of Ann, has reminded the writer that he had pigeon-holed Ann for investigation, and the present seems a convenient time for bringing before students of law a subject which has concerned the widows, children, and next-of-kin of ministers of the Church of Scotland for many centuries, but which is now threatened with extinction. In a short time it will probably be merely of antiquarian interest.

If the name "Ann" had appeared as a title in a magazine of light literature, it would have been necessary to use imagination in order to describe the character of someone exuding femininity, and readers would have expected the story to be embellished with a few artistic sketches portraying the moods and modes of Ann." With the title "Ann" standing out prominently in a responsible law journal, the subject must receive serious treatment, and imagination (if one is endowed with such a gift) must be suppressed. Nothing more exciting can be referred to for material than Acts of Parliament, the works of the institutional writers, the reports of decided cases, and the books of writers on Parochial Law. The necessary delving into authorities having been performed, or in the language of Shakespeare, many books having been turned over, so that the proper atmosphere might be obtained, one feels compelled to write to the press in order to bring one's researches to fruition, seeing that the legal profession have not hitherto expressed a desire for legal articles being communicated by wireless.

The origin of the word Ann or Annat or Annatine has given rise to much controversy. It is apparently safe to assume that the

word is derived from annus a year, and from annata the first fruits of vacant benefices exacted by the Pope. These fruits appear to have been a full year's rent.

The first Scottish statute which mentions annat is 1547, cap. 4, and the way in which it is referred to leads one to conclude that it was a familiar exaction requiring no explanation. Annat is again referred to in the Act 1571, cap. 41. By these statutes it is declared that the fruits of the benefice then on the ground with the annat thereafter and the next presentation to the benefice were to pertain to the next-of-kin of churchmen killed in the service of their country in the wars with England. These Acts imply the power to set aside the pontifical right.

The old form of annat was put an end to by 1587, cap. 26, which declares that the benefices which under prelacy were subject to first fruits and a fifth penny were thereafter to be free. Following on that Act and a recommendation by King James VI. (who welcomed every opportunity of interfering in ecclesiastical matters) to the bishops to make an ordinance that the half of the year's benefice next ensuing the incumbent's death should belong to his widow and children, there are a number of decisions of the Court of Session recognising the right of widows and children and next-ofkin to ann, but the amount thereof does not seem to have been precisely fixed until the Act 1672, cap. 13. One of its purposes was to limit the ann to a half-year's stipend, and to put an end to certain anomalies which had up to that time existed regarding how much stipend ann should cover. Prior to the Act the provision of ann extended in some instances to a whole year's stipend subsequent to the date when the deceased minister ceased to have right to stipend proprio jure. From the date of the Act, therefore, the name strictly speaking, would appear to have become a misnomer.

66

Ann,"

The Act 1672, cap. 13, provides that "in all cases hereafter, the ann shall be an half-year's rent of the benefice or stipend over and above what is due to the defunct for his incumbency; which is now settled to be thus, viz. If the incumbent survive Whitsunday there shall belong to them for their incumbency the half of that year's stipend or benefice and for the ann the other half; and if the incumbent survive Michaelmas he shall have right to that whole year's rent for his incumbency, and for his ann shall have the half-year's rent of the following year, and that the executors shall have right thereto without necessity or expense of a confirmation."

The statute declares not what the law was formerly, but what the law was thereafter to

The

be with reference to the minister's right to stipend and his executors' right to ann. use of the word executors is misleading. It must be kept in view that the Act speaks about a half-year's rent over and above what is due to the deceased for his incumbency, thus shewing that ann does not belong to the defunct and is not, in fact, in bonis of him. The executors administering his own estate, therefore, cannot administer ann as part thereof, and ann cannot be assigned or bequeathed by the minister or attached for his debts. Ann can only come into play after the minister's right to stipend has terminted by his death. It is not payable where the minister has demitted his charge or been deposed. Stipend is payable to the minister in respect of his duties as incumbent, and the proportion of stipend, which in terms of the Act of 1672 vests in him, is his own property, which he can assign or dispose of by his will. But ann is a legal gratuity payable in terms of decisions before the Act to the minister's widow and children, and failing them, his next-of-kin. They are the executors to whom the Act refers.

The division of ann is as follows: When the minister leaves a widow and a child or children, the ann divides into two shares; the widow takes the one share and the child or children the other. If there is only a widow she must share the ann equally with the next-of-kin. If there are children and no widow, the children get the whole. When the deceased minister leaves neither widow nor children the ann is divided equally among the next-of-kin.

Ann is payable out of all stipends whether payable in money or victual, and is exigible in town charges. It vests without confirmation, for confirmation is the method the law has appointed for perfecting titles to the moveable estate belonging to the deceased in the person of his next-of-kin.

It is interesting to note that the right of ann, as that term is now understood in Scotland, was borrowed by us from Germany after the Reformation. In some parts of that country it was the custom that the widow and children of a defunct minister receive half a year's salary of grace in addition to what the minister had earned for himself, and the motive for this was gratitude to the deceased minister. In other parts of Germany it was the rule to allow a year's grace for the widow and children, and to secure this the church was kept vacant for the year and the cure served by a neighbour.

W. S. SOCIETY.-Mr James Watt, W.S., has been appointed Treasurer of the Society in room of Mr John Cowan, W.S., who has resigned after a long period of service and to whom the Society has sent a cordial greeting.

NOTES FROM PARLIAMENT HOUSE. The Summer Session is already well on its way. So far it has been no more glorious than other recent Summer Sessions, either in weather or in work. Assembly week usually provides us with a few fine days before the summer finally breaks, but this year it has failed to do even that, and the authorities might consider the propriety of postponing these functions to late October or November, which nowadays seem to provide our finest weather. The danger in that case might, of course, be overlapping with the election season. As to the volume of work, the First Division began the Session with a total of 43 cases, made up by 15 Summar Roll, 21 Short Roll, and 7 Long Roll; the Second Division with a total of 82 cases, made up by 14 Summar Roll, 65 Short Roll, and 3 Long Roll. The apparent preponderance of the Second Division has already vanished by the withdrawal from the Rolls of fully half the cases, which were those arising from the "Rowan" collisions; the reclaiming notes have been withdrawn, and thus about a third of the Court's apparent work vanishes at one fell swoop. The Lords Ordinary have slender Rolls, and the regrettable tendency to settle still continues. Ninety-two new cases were called in the Vacation, of which 41 were of the consistorial variety. In order to strike a more cheerful note, it may be mentioned that on at least one afternoon in May the Lords Ordinary were all still sitting at 3 P.M., for the reporters on Probabilis Causa had to dispense justice in the Justiciary Court Room. Old-established practitioners can perhaps inform us if this has ever before been known within the memory of living man.

The committee, which was appointed by the Secretary for Scotland to consider the advisability of a Court of Criminal Appeal for Scotland, has reported in favour of the establishment of such a Court, and legislation to that effect will doubtless be introduced in due course. A little delay may supervene if the Faculty's request for a Royal Commission to examine into and report upon Court of Session procedure is granted. Legislation would be sure to follow on the labours of such a Commission, and reforms so important in the working of our Courts might well be considered together. Meantime, it seems to be thought that reform may yet be brought about without the intervention of a Royal Commission at all; that if all our legal societies act together and reach an agreed-on scheme of reform, our house may yet be set in order without the Legislature's assistance, which is notoriously a double-edged weapon. It is extremely doubtful, however, if such action could ever produce more than the proverbial bread poultice where a surgical opera

tion is required. It is at least to be hoped, and one can well believe, that no sectional advantage will be sought or anything else considered than the general efficiency of the legal machine. In the state to which litigation in Scotland has sunk, speed is the prime essential to be sought, alike in the reformed machine and in the deliberations which are to evolve it. We must be prepared to sacrifice some of the cherished niceties of our pleading, and to look on the work of the Courts rather as (what it should be) a method whereby the lieges can have their disputes settled with expedition and certainty than as (what it is) an opportunity of airing the refinements of academic subtleties at the expense, first, of the unfortunate client and, latterly, of the legal profession itself. Mr Jerome K. Jerome wrote of one of his editors man who had had experience of the law, and his principle was always to avoid it." This experienced litigant would say: 'If a man stopped me in the street and demanded of me my watch, I should refuse to give it to him. If he threatened to take it by force, I feel I should, though not a fighting man, do my best to protect it. If, on the other hand, he should assert his intention of trying to obtain it by means of an action in any Court of law, I should take it out of my pocket and hand it to him, and think I had got off cheaply." There is a moral lurking here for all of us.

as a

The Church of Scotland (Property and Endowment) Bill has passed through both Houses of Parliament, and the way has thus been made clear for Church Union with all its important consequences to the people of Scotland. Men of all parties are united in testifying to the skill and tact displayed by the Lord Advocate in piloting the Bill through the stormy waters of Scottish Grand Committee. He started with the advantage of knowing his subject thoroughly, and has won universal praise by his firm and yet conciliatory attitude to his opponents. Even the Bill's most inveterate enemies could scarce forbear to cheer."

A recent number of the "Law Journal" takes notice of the publication in these columns of the Cross-Word Puzzle Restriction (Scotland) Bill, and after reproducing parts of the text expresses the fear that "the cross-word puzzle habit is becoming too strong for Parliamentary control." The need for control of some kind is illustrated by the fact that the legal press itself has already been invaded by the craze. From America comes a law paper containing a "Collegiate Law Dictionary Cross - Word Puzzle Prize Contest." "Each solution of the puzzle shall be accompanied by an essay, not to exceed 250 words, on the value of an adequate law dictionary to the law student." All the definitions in the puzzle are taken verbatim

from the dictionary in question. It is notorious that in these matters we merely follow the United States, and the editor of this paper will only be taking time by the forelock if he offers a set of Court of Session cases for the best crossword puzzle dealing with constructive conversion, and £5, 5s. a week for life to the sender of the first correct solution.

66

Referring to a recent scene "between judge and jury in the King's Bench Division, the 'Law Journal" makes the following comments: "Assuming that the judge was right and the jury was wrong, we venture the submission, even so, that these too frequent misunderstandings must be attributed to a fault in the handling by the presiding judges of their juries; and, at any rate, we very much doubt if the former are warranted in the public condemnation of the latter, which tends to become a habit. It may be conceded that juries are, for the most part, stupid, recalcitrant, pig-headed, or what you will; the fact remains that some judges invariably have good juries, and other judges invariably have bad juries. It is very nearly justifiable to go even further and to suggest that the good judges are always provided with the good juries, and the bad judges are always provided with the bad juries. But, again assuming that our suggested view is entirely untenable, it is obvious that the nation, which constitutes the jury, is not likely to change its habits or its methods. There is no alternative but that the judges should do so." The journal tactfully leaves unmentioned the other alternative, that of changing the judges! While there is no doubt a good deal of truth in this, it is rather going to extremities to suggest that the ability of a judge is to be measured entirely by his success in extracting from juries the verdicts he wants. It is undoubtedly the criterion of a good jury judge's ability. But, of course, jury trials play a far more important part in England than they do with us, and a judge's methods in dealing with one are apt to loom larger in the judicial life. Certainly an experienced judge should seldom be unable to lead a jury to view matters from his standpoint. To take one notable instance in Scotland, it must have been very seldom that Lord Justice-Clerk Macdonald did not get from juries in criminal trials exactly the verdict he wanted; and yet the average juryman who sat in his Court would certainly have declared at the end of the day that the judge had left the whole matter absolutely to the jurymen's discretion. When jurors do fall foul of judges they should be glad at least that the days of summary punishment for illogical verdicts are over. They might obtain further consolation from a consideration of De Tocqueville's glowing eulogy of trial by jury as a "school which gives instruction gratuitously

and continuously, where each juryman can learn his rights, where he mixes day by day with the best educated and most enlightened of the upper classes, where the laws are explained to him in the most practical way and placed on the level of his understanding by the efforts of counsel, by the direction of the judge, and even by the passions of the parties. So much free education and social advancement should more than compensate for a few hasty words from the Bench.

At a recent examination in law in one of the

Scots universities, a kindly disposed professor was doing his best in the course of oral questions to help a rather lame candidate over the stile. He failed to elicit any response on some rather obvious topics, and then turned hopefully to new ground. "Is there any way," he asked, 'by which illegitimate children can be made legitimate?" The candidate sat dumb. Come along," said the professor, "have you never heard of legitimatio per subs per subse.. An answering gleam came into the candidate's eye. I know,' he interposed with eager haste, "subsequente copula." History does not relate whether or no he passed, but surely he deserved success.

Sir,

Letters to the Editor.

(Conveyancing (Scotland) Act, 1924.

Mr R. Fortune, in your issue of 11th ulto., warns the profession against the omission of the description of the subjects in assignations and discharges under the new Act, and Mr J. L. Anderson of Cupar, in your issue of the 2nd inst., agrees with him. As a member of the Lord Advocate's Advisory Committee, who prepared the Bill, I can assure these gentlemen that all the objections which they make to the new forms were carefully considered beforehand, and that they were overruled. The possibility of two bonds by the same party in favour of the same party for the same amount and dated and recorded of the same date, is an exceedingly remote one. It is conceivable that there may have been such bonds, but I have never encountered them in the course of an experience in conveyancing perhaps longer and quite as extensive as that of either of your correspondents. Should such a case arise it will be immediately discovered when the minutes are being prepared, and the deed will be returned to the ingiver with a request that the particular bond should be identified by adding the book and folio of the register in which it was engrossed.

Under section 49 (2) of the new Act the preparation of the printed minutes and printed indices of persons and places applicable to each county in Scotland is to be continued as before, and the Keeper of the General Register of Sasines is to supply as full information in the printed minute books as hitherto, according to the existing law and practice. These provisions form a safeguard against any difficulty in

identifying the property to which the deed applies, so far as the General Register of Sasines is concerned. As regards the Burgh Registers of Sasines, I quite understand that in some of them there are no search sheets and perhaps even no index of names, but even difficulty can arise. He has always the books of the register at hand, and all he has to do is to refer to the bond itself, the names of the granter and grantee, and the date and date of recording of which are given in the assignation or discharge, and all doubt will be

without these I fail to see where Mr Anderson's

Sir,

ROBERT WHYTE.

The Conveyancing (Scotland) Act, 1924. The need being conceded, as beyond argument, of differentiating between bonds liable to be confused, is not the remedy to specify in the discharge or assignation the volume and folios of the Register of Sasines in which the bond has been recorded? For the purpose of differentiating, this is in some respects a better expedient then even the describing of the property, as it can never involve more than the addition of a few words. Its use is suggested by section 8 (3) of the Act. Yours faithfully,

Sir,

'WRITER TO THE SIGNET.”

KEITH, 21st May 1925.

Conveyancing (Scotland) Act, 1924.
Discharges of Bonds.

I am much interested in the letters which have appeared on this subject and the cases quoted by Messrs Fortune and Sturrock. Might I offer a suggestion that in discharges of bonds advantage should be taken of section 8, subsection 3, where provision is made for the number of the volume and the folio on which the deed is recorded being given. If this were done, neither the officials nor the searchers could go far wrong.—I am, etc.,

(Sgd.) WILLIAM ROBB.

MESSRS JONATHAN ANDERSON & SONS, writers and notaries public, have removed from 196 St Vincent Street to 41 St Vincent Place, Glasgow.