heritors for the appointment of a common agent in the event of such appointment having been formerly dispensed with).

11. The teind roll shall be retained in the hands of the clerk subject to inspection by any party interested, and shall not be lent or given out to any person whatsoever. But after the Lord Ordinary has made an order for intimation printed copies may be supplied to the common agent for distribution among the heritors, and where there is no common agent to any heritor who applies.

12. The Lord Ordinary shall either hear parties viva voce upon such objections as may be lodged within eighteen months after the order for intimation of the teind roll, and upon any answers that may be made thereto at the Bar; or he may, if he shall see cause, allow all concerned to give in written answers to such objections within such time as he shall think proper to appoint, and shall thereafter proceed, in so far as regards any application for prorogating the time for giving in papers, in the manner directed by section 12 of the Court of Session Act, 1825.

13. After (a) the objections (if any) to the teind roll have been disposed of by the Court, and (b) any extrajudicial surrenders of teind made before the passing of the said Act 15 & 16 Geo. V., c. 33, have been intimated, and evidence thereof produced, to the clerk (which shall be done before the expiry of six months after the date of the order for intimation of the teind roll), and (c) any surrenders of teind made in accordance with the provisions of the Sixth Schedule of the said Act 15 & 16 Geo. V., c. 33, have become effectual, and (d) intimation has been received by the clerk claiming that the deficiency of stipend caused by any such surrenders shall be reallocated among the heritors in the parish who have unexhausted teipds not yet allocated for stipend, and (e) objections, if any, of any heritor to such reallocation have been disposed of by the Lord Ordinary, a remit shall be made to the clerk to amend the roll, and if, in virtue of the amendments, the Lord Ordinary shall deem it necessary, he may order the clerk to reprint the roll as amended before declaring the roll to be final.

14. After the Lord Ordinary has by interlocutor declared the roll to be final he shall, where a common agent has been appointed, direct that an account of the expenses incurred to the common agent be lodged in process, and when lodged remit the same to the auditor to tax and report; and after approving of such report, shall grant decree against the heritors in favour of the common agent for the taxed amount of the expenses as approved, and for the expense of extracting the decree and proportioning the same in accordance with a scheme of apportionment thereof prepared by the clerk in terms of the provisions of section 11 (3) of the said Act 15 & 16 Geo. V., c. 33.

15. Except in the cases specified in the said Act 15 & 16 Geo. V., c. 33, in which the finding or judgment of the Lord Ordinary is declared to be final, any judgment of the Lord Ordinary may be submitted to review by the Division to which the cause belongs by giving in a Note, which must be lodged within twenty-one days after the date of the finding or judgment complained of, and the procedure on that Note shall be the same as in reviewing judgments of a Lord Ordinary in the Court of Session.

16. The clerk shall, on receiving notice of any change of ownership of the lands contained in one entry in the teind roll in respect of which lands a standard charge has been constituted in accordance with the provisions of section 12 of the said Act 15 & 16 Geo. V., c. 33, insert in the teind roll the name of the new proprietor as stated in said notice ; such notice may be in the form of Schedule A annexed to the Act 37 & 38 Vict., c. 94, provided always that notice of change of ownership of part only of an entry in the teind roll shall be given effect to by the clerk only where the provisions of section 13 of the said Act 15 & 16 Geo. V., c. 33, are complied with in said notice.

17. Where a standard charge has been constituted on the lands of any heritor in terms of the provisions of section 12 of the said Act 15 & 16 Geo. V., c. 33, and the same has been redeemed in accordance with the provisions of that section, or where a stipend exigible from the teinds of any lands of a heritor has been redeemed in accordance with the provisions of section 14 of the last-mentioned Act, the clerk shall, on receiving notice in writing of such redemption signed on behalf of the General Trustees and the owner of the lands the standard charge on which has been redeemed, or of the lands the stipend in respect whereof has been redeemed, make an entry to that effect in the teind roll.

18. An excerpt from a teind roll of any entry or entries therein certified by

the Clerk of Teinds shall be received in any Court of Law as sufficient evidence of such entry or entries.

And the Lords appoint this Act to be inserted in the Books of Sederunt and to be printed and published in common form.

J. A. CLYDE, I.P.D.

SCHEDULE REFERRED TO.

UNTO THE RIGHT HONOURABI.E
THE LORDS OF COUNCIL AND SESSION,
COMMISSIONERS FOR THE PLANTATION OF KIRKS AND

VALUATION OF TEINDS,

THE

PETITION

OF

a

THE CHURCH OF SCOTLAND GENERAL TRUSTEES, incorporated by the

Church of Scotland (General Trustees) Order, 1921; Humbly sheweth, THAT by the Church of Scotland (Property and Endowments) Act, 1925, section 11, it is provided, inter alia, that." There shall be prepared by the Clerk of Teinds for every parish in Scotland a Teind Roll specifying in sterling money (a) the total teind of that parish ; and (b) the amount of that total applicable to the lands of each heritor; and (c) the value of the whole stipend payable to the minister, so far as payable out of teinds, including vicarage teinds payable as stipend and surrendered teinds so payable; and (d) the proportion of that value payable by each heritor in the parish.' That the stipend[s] of the Minister[s] of the [United] Parish[es] of [ ] in the Presbytery of [

] and County [or Counties] of [

], became standardised within the meaning of the foresaid Act as at the term of Martinmas 19[ ], in consequence of the [death, resignation or translation of the Minister, or intimation in terms of section 4 of the said Act by the Minister to the petitioners of his election, or notification in terms of section 5 of said Act by the petitioners to the Minister and other parties mentioned in the said section—the particulars and dates should be shortly stated).

That the final augmentation in terms of section 10 of said Act has been localled upon the heritors conform to Decree of Locality made final on [give date]: or That no proceedings are to be taken to obtain an augmentation under section 10 of said Act : or That the Lord Ordinary has pronounced a finding that there is no surplus teind in the parish available for an augmentation under section 10 of said Act: or That the time within which proceedings under section 10 (2) of the foresaid Act may be taken has expired.

That in these circumstances the preparation of a Teind Roll of the Parish[es] of [

) should now be proceeded with in terms of section 11 of the said Act. May it therefore please your Lordships to appoint this Petition to be intimated

to all parties concerned by affixing a copy thereof to the most patent door of the church of the said parish[es] on two successive Sundays before the diet of public worship on each of these days, and by inserting a short notice thereof in, the Scotsman newspaper and in [another newspaper circulating in the county in which the said parish[es) Care] situated] once a week for two successive weeks, or in such other or further form and manner as to your Lordships may seem proper ; to appoint the heritors of the said parish[es] of

to meet and choose a common agent ; to appoint said heritors to lodge a State of Teinds; to remit to the Clerk of Teinds to prepare a Teind Roll in terms of said Act 15 & 16 Geo. V., c. 33, and upon the Teind Roll being reported to your Lordships, and after considering the same with any Objections and any Answers thereto and along with any Surrenders of Teinds that may be duly made, to adjust and complete said Roll, and to declare the same to be a Final Teind Roll.

According to Justice, etc.

a

un

66

SOME POINTS OF ENGLISH

order in the name of the King and witnessed PROCEDURE_I.

generally by the Lord Chancellor. The writ

requires the defendant to enter an appearance By E. R. M. TAYLOR, Law Agent.

to same at the place directed within eight days As a student of English law for the last three after personal service, under pain of having years and being engaged in the common-law judgment signed against him. side of a firm which has much Scottish work as

The writ sets out, inter alia, the remedy or well as English, it has been borne upon me that relief sought by the plaintiff, called the inboth in Scotland and in England the legal dorsement,” which may be (a) general where profession has suffered from a lack of know-the remedy, sought is in respect of an ledge of the different procedure which is liquidated claim such as damages ; (b) special, followed in the adjacent country.

which may only be used in certain specified It may be helpful to know what is required cases, e.g. a liquidated amount due under a in the English Courts when a Scottish solicitor contract or a bond, or in an action to recover puts matters into the hands of his English mination thereof by notice to quit

, or where

land on the expiration of the term or detercolleague and vice versa. With the object of explaining something of what seems obscure the term has been forfeited for non-payment of in the English procedure, I have thought to rent (but not if forfeited for the breach of any give a short synopsis of what is required in the other covenant)—the landlord may also add High Court of Justice.

a claim for the rent or for mesne profits; and

(c) for an account where the plaintiff desires 1. DIFFERENT WAYS OF COMMENCING

an account taken, as in the Scottish procedure of PROCEEDINGS.

count, reckoning, and payment, etc.

The advantage of this third form of indorseIn England there are three main Divisions ment is that in default of appearance, or where of the High Court of Justice, these being the appearance has been entered but the defendant " King's Bench Division,” the Chancery has not satisfied the Court that there is some Division,” and the “ Probate, Divorce, and preliminary matter to be decided, the Court Admiralty Division.” The King's Bench Divi- will, on the application of the plaintiff, order sion hears causes arising out of the common the account to be taken without any further law, whereas the Chancery Division exercises proceedings. its functions as a Court of equity. (Equity (2) By Originating Summons.This is any turned on the idea of the King's perfection, his summons other than one in a pending cause or power to amend the law and to redress griev- matter ; this summons commences the proances for which there was no relief at common ceedings instead of a writ. Other summonses law.)

are interlocutory ones, after the action has Although an attempt was made by the been commenced, for the purpose of deciding Judicature Act, 1873, to do away with the questions which would in the Parliament distinctions between these two remedies, and House be decided in the Procedure Roll or the it was enacted that either Division could try Motion Roll. and decide actions arising equally out of the The originating summons is used in the common law or out of equity (and in conflict King's Bench Division to order the defendant the rules of equity were to prevail), in practice, to do or to refrain from doing something as actions which arise at common law are still in an interdict, or for the English process of commenced in the King's Bench Division, while multiplepoinding, called “interpleader”; and those arising in equity are brought before the in the Chancery Division to foreclose a mortChancery Division. No solicitor would avoid-gage; or in any actions which arise out of trust ably employ a Chancery counsel in an action estates where the value of the estate is under before the King's Bench Division, nor con- £1000. versely would be employ a common law This summons is a cheaper proceeding than counsel in an action where the relief sought an action commenced by writ of summons, could only be given in equity.

as there are no pleadings and the case is often The Probate, Divorce, and Admiralty Divi- heard in the chambers of the judge or master sion deals with petitions and actions relating instead of in open Court. to the proving and granting of probate in will (3) By Petition, which is a written applicacases, consistorial causes, and also exercises tion to the Court in lengthy matters. This civil jurisdiction in matters arising at sea or on process is chiefly used in the Chancery Division the coasts of England.

for the purpose of winding-up a company, and Legal proceedings may be begun in any of in trust estate actions where the amount of six different ways:

the trust estate exceeds £1000, or a bankruptcy (1) By Writ of Summons.—This is a written petition.

a

(4) By Motion.—This is a verbal application suffices for a group of States, and from their by counsel for urgent relief, e.g. the appoint- decisions appeal lies to Washington. ment of receivers, etc., after notice has been What with the State Courts, both supreme given in writing.

and superior, and the Federal Courts in all their (5) By Special Case, where the parties having branches, it may be imagined how great is the agreed upon the facts seek a declaration from volume of law reports issued annually in the the Court as to the legal effect and consequence United States, and how acute is the problem of such facts. The question must, however, of digesting the copious flow of law. All the exist in practice and may not be merely hypo- States, forty-nine in number, have their law thetical or academical.

reports, and there are also, of course, federal (6) By Replevin, which is an action com- law reports and reports of the Supreme Court menced in the County Court by a party whose at Washington. There are also reports which goods have been seized under a distress warrant govern certain well-defined groups of States, and the validity of the distress has to be deter- e.g. Atlantic Coast, North-West, and so forth. mined, and from which Court it is transferred Besides this, there is a vast output of legal to the High Court on certain conditions. journals of every size and kind. Digests are

indispensable to the legal enquirer ; but with (To be continued.)

such a mass of material, "key digests” and “ digests to digests” have become necessary, . In short, if a man had time and strength to look

for it, there must be warrant for every legal SOME NOTES FROM AN AMERICAN proposition, possible and impossible, in the law COURT.

reports of the United States. It must also be

remembered that not only the federal congress The writer of these notes recently had and Senate at Washington are hard at work occasion to spend some days in listening to a adding to the Statute book, but that every case in one of the American law Courts, and State has its own legislature all busy, some of found much that was interesting in the pro- them in the most meticulous and grandmotherly ceedings, both from the general resemblance to way. Statute law is thus another proposition our familiar procedure and from the contrasts with which the lawyer has to grapple, and the not infrequently presented. An account of pessimist who estimated that there are five some of these may interest the readers of this million laws in the United States was perhaps paper. It is only fair, however, to remind them not demonstrably exaggerating. It is estimated at the outset that this account concerns one on good authority that no fewer than ten Court in one of the New England States, and thousand laws were passed in the United States that there is no country in the world about last year. The problem, therefore, of a suitable which generalisations are more dangerous than library is an even more difficult one for the the United States. Each State has its own professional man over there than it is here. Courts, both superior, i.e. the highest Court of The case with which we are here concerned first instance, and supreme, i.e. a Court of Appeal, was in the Federal Court. It proceeded on a consisting of five judges, sitting together, the Bill in Equity addressed "To the Hon. the president being chief justice of the State. Judges of the District Court of the United From this last Court an appeal lies to the States for the District of” the State in question. Supreme Court of the United States, sitting in The plaintiff complains against the defendants Washington, but only on questions deemed to as follows." Here came a statement of the be of federal interest, i.e. affecting the whole domicile of the parties and the value of the country and not merely the individual State. suit, exclusive of interests and costs, viz. Practice and procedure differ widely in the $500,000. On the matter of costs it is interestdifferent States. Parallel to these Courts are ing to note that only $1 a day can be recovered the Federal Courts of the United States, in from an unsuccessful litigant for counsel's fees. which matters are litigated of clearly federal It need hardly be added that this figure is of interest or between litigants resident in different a purely nominal character, for, after some States, or where for any other reason their experience of lawyers' charges in America, one jurisdiction is preferable to that of the State is driven to the reluctant conclusion that the Courts. The matter in dispute, exclusive of art of charging is in this country merely in its interest and costs, must exceed $3000 in value. infancy. Of course there is no subdivision of Special cause must be shewn by the plaintiff the profession over there, and the case is prebefore his case is heard in the Federal Court, pared in the office of the counsel who pleads it. but practice here closely resembles that in the The general nature of the case was what we other Courts. Appeal lies to the Circuit Appeal should call a count, reckoning and payment, Federal Court, a bench of five judges which The complaint was followed by a general

were

statement of the facts. The money involved to make a very determined effort to grapple was made by two Brothers, of Scots extraction, with the case in order to get it finished. It sat bearing a well-known Scots name, and endowed at 10, adjourned for a recess of ten minutes at with strongly developed Scots instincts, in a 11.15, rose for lunch from 12.30 to 2, and sat to shoe-manufacturing business. On their death 4, with another recess of ten minutes at 3. At the business was continued by their sons, who the request of counsel, other recesses were also executors. No division was made of granted from time to time in order to consider their estates, which continued to fructify in the whether they should object to the reception of business. Indeed, the interests of the brothers certain depositions, schedules, etc. One of these were very closely intermixed. They seem to lasted forty-five minutes. In adjourning at 12.30 have owned everything in common, even their on the first day the judge genially observed : houses. The complainant, son of the one “I know that you gentlemen are accustomed

' brother, retired from the business, leaving his to wait till 1 o'clock for an adjournment. But interest in the hands of his cousins, sons of the my experience of this place leads me to believe second brother, whose representatives were the that if we adjourn now our dinners will be defendants in the present action. They were better and hotter than if we wait till 1.” stated to "hold the complainant's said interest The judge made a most impressive entry, impressed with a trust on behalf of the com- being announced, not curtly as “ Court," but plainant,” and, briefly, to have made a pretty as "the Honourable the Court of the United good thing out of it, for which they never States." Before he took his seat an official accounted to him. They were insistent, his pronounced a complicated kind of benediction averments recited, that there should be no which ended with the words, God save the accounting, and there was none;

none; though

though United States.” At each entry of the Court requested, no true and final accounting and the same dignified ceremonial was performed. settlement was ever made. “Your orator” Here it might be remarked that the behaviour accordingly prays for an accounting to be of those present in Court was irreproachable; ordered, and that the defendants be ordered not a whisper was ever heard amid their ranks ; to submit books, papers, etc. The general and if anyone had anything to say to anybody suggestion was that the other partners had else they tip-toed from the room to let him do frozen out their cousin, and not only concealed so. Anything like the buzz which is sometimes his share of profits in the business but swindled heard in Courts of Justice on this side of the him in connection with the sale of bonds in Atlantic was quite unknown, at any rate, be it which all were interested.

observed, in this particular Court. The answers by the defendants admitted a The seating arrangement of counsel was, to good deal of the plaintiff's averments but our ideas, peculiar, but the same thing was denied (broadly) the really relevant facts. observed in other Courts later visited by the There was in fact, they stated, a final accounting writer. There were two tables in front of the and dividing out. Although not plainly stated judge. At that nearer to him sat counsel for in the record, there was a kind of suggestion the plaintiff; behind them, at the second running through the case that the plaintiff had table, sat counsel for the defendants. In spent his share of the estate and a bit more in addressing the judge, counsel say, Your horse-racing: certainly he had been bankrupt honour,” or “ Please, your honour.' on at least one occasion.

One of the counsel for the plaintiffs opened The form of answering many of the averments the case, which took him several days. He had was singularly suggestive of Scots pleading. been born in Scotland of Scots parents, but one

The defendants neither admit nor deny this would never have suspected it from his voice, article, but leave the plaintiff to prove the which was less surprising when one learned that

he had " emigrated” from his native land at It is perhaps worth noting that the pleadings the ripe age of three. After reading the pleadwere all typewritten. There is no printing ings he went on to argument, much of which until the case comes to appeal, if it ever does so. consisted in protracted reference to bank-books To the answers filed by the defendants the ranging back for thirty or forty years. Whenplaintiff took various formal exceptions, and a ever he came to a document to which he wished good deal of amendment evidently took place to refer he simply produced it, and it was put We are apt to talk of the law's delays here, in process.

When witnesses but no comment was made there on the circum- stand” the same procedure is followed, i.e. stance that the original Bill was filed in March there is no need to furnish the adversary in 1922; the case began to be heard on 8th Septem- advance with copies of the documents, which he ber 1925. After a week's hearing it was ad- may then see for the first time. It rather journed for a further three weeks. Even after remarkable that counsel examine witnesses these delays, the Court did not seem prepared without precognitions ; of course, this is only

same.

are

on the