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made possible under a system whereby the same man both prepares the office side of a case and pleads it in open Court. Another point strange to us is that witnesses are allowed to sit in Court and hear the evidence of other witnesses which precedes their own.

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Much of the time taken by counsel in his opening statement was occupied in reading depositions." The system of taking these, is rather remarkable. They are the recorded examination of witnesses on the other side who are liable, in the opinion of the person taking the deposition, to be hostile to his opponents. The questions are put by the lawyer for one side in presence of the lawyer on the other, who then has an opportunity of crossing his own witness. If one side or another objects to a question, the objection is recorded; it is of course not decided, for there is no one to pass judgment on it until the deposition is read to the trial judge, who is then called on to pronounce his opinion. The depositions-chief and cross-are lodged in process, and if the witness in question is not called they become part of the case. The dreary reading of these depositions for some hours was only relieved by the nature of some of the objections taken at the time when the witness was examined, e.g. I object to that question, as it is not a suitable one to ask on a fine morning such as this."

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The position of one witness in this action was noteworthy and, to Scots eyes, anomalous. This was a judge of the Supreme Court of the State in which the trial was held who had, many years before, been of counsel in actions in which the same parties were concerned. Indeed, the evidence consisted largely of what counsel had been told by their clients a generation before and of what was contained in twenty-year-old depositions. The judge took an open interest in the case for the defendants, i.e. attended consultations between their lawyers at night, made suggestions, and at one stage went off in his car to fetch a stenographer, who had been in his employment twenty years before, in order to hunt up evidence. This did not strike anybody as peculiar or objectionable. The same judge, it may be remarked, still has his chambers in the office (now his son's) where he used to be a partner. He does his work there; the firm uses his law library, and he shares their stenographers. Besides being on the Bench of the Supreme Court, he is chairman of one of the local banks. To us such arrangements as these may seem peculiar, but in this and many other similar cases it excites no remark; and with men of irreproachable standing and repute, as in this instance, there is nothing in the least objectionable; but one can imagine cases where it would be otherwise. It might be remarked in passing that to the stranger it

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appears that, at least in most States, the judges receive an inadequate salary. The post can only be attractive to men who have acquired a competency at the Bar (which, it must always be remembered, is a task less herculean than in Scotland) or who have the necessary capacity to act on the boards of banks and so forth.

At the end of one week the case was adjourned for three weeks, and the writer did not see the last of it. From its conduct it was apparent that there are some advantages in our system. A procedure roll discussion, with a thrashingout of the relevancy or otherwise of some of the parties' averments, would have been invaluable in clearing the ground. Under our system it would have been impossible for learned counsel to say shortly before the proof began that he was quite unable to state whether the case would last a week or a month.

A jury trial in another part of the same State provided a contrast with the case above described. The issue being tried concerned a boy who had been sitting on a bridge when he was injured by a fisherman whose line, cast by a rod, became entangled in an overhead electric tram-wire and pulled the wire down upon the boy. The resulting damage, claimed by the boy from the tramway company, amounted to the substantial sum of $10,000. This was the third trial of this issue, two earlier juries having disagreed. A verdict was on this occasion returned for the defendants. The jury consisted entirely of men, and the foreman was chosen by the judge. Jurors are paid by the State, both in civil and criminal causes. Counsel, it may be noted, administer the oath to their witnesses. The questions followed lines familiar in jury trials in our own country, and speeches of counsel for the respective sides had a strangely familiar ring. The summing up was much shorter than we should expect.

On one point of law all lawyers in the United States seem to be agreed, and, although this statement is dangerously like a generalisation, it is possibly true that the administration of the criminal law in all other States than their own is a "howling farce." These are the words of a practising lawyer of repute. That the dangers of interminable delays and unworthy devices, to put it no higher, are real may be seen from the fact that the American Bar Association, recently in session at Detroit, found occasion to endorse a statement made by no less an authority than Chief Justice Taft, to the effect that

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the Bar Association declares that one appeal only should be allowed from judgment in the trial Court. Above all, the Bar Association advises that all movements designed to encourage respect for law and authority, in contrast with the disrespect for law and authority now so prevalent in the United States,' should be encouraged by every possible means. Law without enforcement and without the support of public opinion is valueless.

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The considerations suggested in these last sentences might lead to a disquisition on the influence of prohibition on crime which would be alien to these pages. But, however attractive the subject may be, it must perforce be left on one side. One recent criminal case may be quoted which, if not characteristic, is at least significant. A man called Scott pled guilty to a charge of murder in hopes of being leniently treated. He was sentenced to death, and was then allowed to alter his plea to one of not guilty. He was then tried, convicted, and again sentenced to death. His lawyers secured no fewer than three postponements of the execution. The day before the date last fixed for this event a telegram arrived "from an accomplice" which announced that the sender was hastening to give himself up as the real murderer. The execution was postponed for. the fourth time, but the promised murderer failed to put in an appearance. A time was again fixed for Scott's execution. Four hours before the critical moment his lawyers secured a writ for enquiry into his mental condition. The execution was accordingly postponed for a fifth time. Five experts for the people certified Scott as sane; five experts on his behalf certified that he was mad. A jury, perhaps with some reason, took the view that he must be mad on the ground that his experiences must have been enough to unhinge any man's mind. So he has been packed off to a lunatic asylum. How long he will remain there is a question which only time can determine.

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On one generality at least the Scots lawyer may remain quite certain, which is, that wherever he goes in the Union he may count with confidence on the kindest of welcomes from his professional brethren. Everywhere he will receive the warmest hospitality and every assistance in studying the work of American lawyers, whether in Court or office. He cannot fail to be impressed and amused with the persistence of "legal type," displayed alike in features and in methods, and he will find that the American lawyer, although confronted with problems which, from the very size of his country and his population, often assume dimensions which give them an aspect strange to us, is animated in his attempt to grapple with them

by the highest of those ideals which we flatter ourselves have always illumined our system of jurisprudence.


By JOHN C. GARDNER, Solicitor, Stonehaven. Among the many unsatisfactory Acts of Parliament which have so characterised modern legislation, the Act of 34 & 35 Vict. cap. 81 is surely entitled to a place. Not only does it abolish, for no apparent good cause, one of the oldest and most reasonable of our laws, but it presents something of an anomaly to the trend of opinion regarding the subject with which it deals. This anomaly is even more noticeable now than it was at the passing of the Act; for there can be no doubt that, at the present day, settlements, which convey the slightest hint of an attempt to overlook the testator's natural successors, have gained nothing of popularity in this country. The growing objection to charities being made the objects of testamentary bequests affords a very good indication that the tendency of opinion on this matter leans rather towards restraining than increasing freedom of testation; and yet the abolition of the law of death-bed, apart from the more serious aspersions which may be levelled at it, is so wholly and unreasonably inconsistent with this tendency as to give it the air of a mere whim of caprice.

The origin of the law of death-bed, like so many of our very ancient laws, is shrouded in obscurity. Certainly it is of great antiquity. The Regiam Majestatem and the Leges Burgorum both recognise it, even then, as one of the laws of Scotland. Most of our institutional writers take the view that this law of death-bed, which was at one time admitted in England, was introduced to save dying persons from the rapacity of the Roman clergy, who were wont to take advantage of their situation by attending at the death-bed to obtain grants of the dying person's possessions. According to Lord Stair:


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The main reason of this law hath been for the quiet and security of dying persons against the importunity of husbands, wives, children, or other relations; and especially against the importunity of the Romish priests.' Mr Sandford, however, in his book on " Heritable Succession," does not consider this to be a very correct account of the origin of this law, for the reason that, at the period when it was introduced, the clergy were too powerful, in addition to having an almost complete control of the power of legislation, to render it likely that any law which was inimical to their interests would have received sanction. He

suggests that it may have been introduced simply from general views of the impolicy of permitting the disinheritance of the heir at a time when the testator was weakened by infirmity, and so liable to be affected by the persuasions of those around him; or that it may perhaps have been suggested by the somewhat analogous provision in the Roman law of the Querula Inofficiosi Testamenti. In this latter view he is supported by Lord Bankton. The probability of such a view being correct would seem to a great extent to depend on whether the Regiam Majestatem and the Leges Burgorum can be taken as having been written in the reign of David I. If these works can be attributed to so early a date, it does not seem feasible to explain the law of death-bed as having been suggested by a provision of the Roman law, as it was not till a later date that the influence of the Roman law began to assert itself in Scotland. In "Historical Sketches in the Law of Scotland," part of which was published in the "Journal of Jurisprudence" of April 1866, it is stated that the law of death-bed was a principle of Teutonic custom which, once assimilated, has stood fast in our law against all the assaults of innovation and all the importations of the Roman law.

Whatever its origin and the reasons for its adoption, there can be little doubt that for many centuries the law of death-bed served in some measure to safeguard the privileges of testation. It is not asserted that it is impossible for a person to execute a rational and unprejudiced testament when stricken with a mortal illness. Doubtless there must have been behind the Act of 34 & 35 Vict. cap. 81 some idea that it was just as likely that a person would make a natural will on death-bed as when in sound health. Indeed, it may have been argued that the imminence of death would tend to purge the mind of all unnatural impulses or persuasions. The soundness of such a view, however, must be seriously doubted by anyone who watches the character of the reductions of settlements which come into Court, and most lawyers would agree that there are very many cases where the settlement is not actually reduced, but where it is quite evident that the causes in which Lord Stair suggests the law of death-bed had its origin are still at work namely, the importunities of relations, if not also of priests. And there can be no doubt whatever that the law of death-bed tended to persuade persons to make their settlements when in sound health; nor can any amount of ingenious argument successfully prove that it is a more desirable practice to postpone this matter till the would-be testator is stricken with his mortal illness.

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It is not an easy matter to trace what influences led to the abolition of this law of death-bed, but in the "Journal of Jurisprudence" of March 1865 it is intimated that a proposal has emanated from the Faculty of Procurators in Glasgow for the abolition of what the A.S., 29th February 1692, calls affectionately, that excellent law of deathbed."" In the comments which follow this intimation the proposal receives scanty support. It may be said that three main reasons are advanced against it. The first of these, namely, that the law of death-bed exercised a powerful effect in causing persons to settle their affairs when in sound health, has already been mentioned. The second reason is to the effect that this law was no infringement on any natural right which belonged to a testator. In support of this view it is contended that, from an early period in the history of society, the governing power has always taken charge of regulating the disposal of a person's property after his or her death, and that every will is a tampering with the disposal which the State thinks best. Such a view naturally provokes a discussion as to whether testate or intestate succession is the older; but without going into this question, it can assuredly be said that in Scotland, ever since the passing of the Celtic age and the adoption of the law of primogeniture, the heir to heritage has occupied a place of favour in the eyes of our Legislature. In any case, the right of challenge, which the law of death-bed affords, being confined to the heir, and existing only where he has not been excluded by a prior deliberate deed, is so limited that it exercises a very slight restriction indeed on the privileges of a testator. What may be regarded as the third reason put forward, in the comments already referred to, against the proposal, is simply the logical deduction evolved from the facts already stated, namely, that the abolition of the law of death-bed is virtually an attack on the law of primogeniture.

It may be argued by the opponents of the law of death-bed that because there is no restriction as to disposing of moveables on death-bed there should be none as to heritage. But such a contention is asserting for a testator a very much greater freedom with regard to the disposition of land than he possesses, in many cases at any rate, in regard to his moveable estate; for the power of disposing of moveables by testament is quite often restricted to one-half or one-third of the estate.

Careful consideration of these points only increases the difficulty in discovering any sane purpose which could be served by the abolition of this law. Its antiquity has made it almost one of the fundamental, if minor, laws of our system of jurisprudence. Mere antiquity, of

course, should never be advanced as a reason for the preservation of a law which is radically unsound, or which has exhausted its usefulness; but the law of death-bed has no place in such a category. For centuries not only was it regarded as no hardship to a testator, but it was even looked on as a necessary and beneficial measure. Human nature has changed little since the reign of David I.; and if society is less notoriously corrupt than it used to be, the causes which, if they did not evolve the law of death-bed, made it a necessary and useful safeguard, are still present. Most systems of jurisprudence which recognise the privilege of testation endeavour to see that, so far as they are not contrary to the law, the testator's wishes are as little subject to interference as possible. Any measure which serves this purpose, without being onerously restrictive, is deserving of the highest respect, and should not lightly be swept away by a thoughtless flick of the legislator's brush. Dare we hope that the damage is not irremediable?



In consequence of a recent Act of Parliament, parish manses are passing through a transition stage, and the time seems opportune for bringing before students of law in a succinct form the story of the manse.

As is well known, the manse is the official residence of the parish minister, and has been described as a building with a portion of ground attached, intended for and dedicated as a place of residence of the minister of the parish and his family. The practice has been to set aside half an acre for the dwelling-house and for its legitimate adjuncts, viz. stable, barn, byre, garden, and garden wall.

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When the word manse was used originally it signified a portion of ground. In the eighth century ministers on the Continent were provided with a portion of land so that they should not perish of hunger or poverty. Manses are first definitely mentioned in Scotland in the thirteenth century, when provision was made for their erection at the joint expense of the Romish parson and vicar, according to the ratio of their revenues; but neither the law nor the history of Scotland throws much light upon the rights of the parochial clergy during Popery in relation to manses. The Church was then a rich institution, owning many lands and drawing large revenues, and we may take it that the ministers had their share of the creature comforts the times afforded.

Pope's authority was thrown off, the Popish clergy used to the utmost extent the liberty allowed to them by law to feu their manses and lands to their relations, with the view of preventing the reformed clergy from obtaining possession thereof. Accordingly, at the Reformation, the ministers of the new religion found a great part of the parochial manses occupied, not by the clergy but by those who derived right from them. This gave rise to great complaints by the ministers, and the matter, after receiving the attention of the General Assembly, was brought before Mary Queen of Scots. Steps were taken by Act of Parliament and otherwise to cut down the rights which the Popish clergy had disposed of, and to give the ministers of the reformed religion the houses and land they were entitled to, or which the Government permitted them to have when the Crown appropriated much of the wealth of the Church.

Long after the Reformation many Acts of Parliament were passed regulating the building of manses and the upkeep thereof, and in course of time the burden of providing and maintaining competent and sufficient manses was placed on the heritors or land owners in each parish---ground belonging to them being appropriated for the purpose. This system has been in vogue for nearly three hundred years, and has in the main worked quite well in practice. Of course there have been disputes as to what a competent and sufficient manse was, and grumbles by the landed proprietors when certain disbursements had to be made to put the manse into good order were not uncommon. A call for expenditure was generally made on the appointment of a new minister. He would naturally wish to put his house in order when he commenced his new duties, and if he did not move in this direction, the female members of his family would doubtless take care of his interests in this respect. Sometimes litigation took place as to the amount to be expended on repairs, and learned judges (some of them sons of the manse) found it necessary to lay down the law as to the condition into which manses should be put for the occupation of a gentleman or the minister of the parish.

The comforts which were good enough for one generation were insufficient for another generation, and expenditure on manses has gone through a process of evolution.

As regards tenure, it is interesting to note that manses being given to ministers "by laws and Acts of Parliament ceased to be of any private holding, and could have acknowledgment of no superior but the King.

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When speaking about houses, one has generally in view a landlord and a tenant, but manses Prior to the Reformation in 1560, when the are peculiar in this respect. In ordinary



Buchanan's Text-book of Forensic Medicine and Toxicology. Ninth Edition, revised and enlarged, by John E. W. MacFall, M.D., etc. 1925. Edinburgh: E. & S. Livingstone. Price 15s. net.

language they are not properly owned or MR PETER CLARK, S.S.C., 24 Hill Street, tenanted. The following is a summary of the Edinburgh, intimates that he has assumed as a views of the judges on this point in a case relat-partner Mr William Wilson Terris, solicitor, ing to the right of a minister to let his manse who has assisted him in his business for the during the summer months. The heritors of past six years. The firm name will be Peter the parish are bound by statute to supply a Clark & Terris. manse and to keep it in good repair for the occupation of the minister for the time. That is a statutory tax on them. (It is now being removed, as we shall see.) The heritors are not proprietors, neither is the minister the proprietor, but he is the only person who has a character at all approaching that of an owner. The minister is not a tenant for he pays no rent, but he is something more than the occupant. The heritors have an interest in the manse as being liable to maintain the building, and they have a title to see that the property is duly administered with a view to its being kept in repair; but they have nothing more. They have no right beyond this to interfere in any way with the minister's possession or administration. The minister owes due administration and reasonable care of the buildings to the heritors. He represents and administers for the series of incumbents who are collectively the proprietors. He cannot affect the interest of his successors, but subject to this condition he has all the rights of a proprietor, at least so far as necessary for the complete enjoyment of the subject for the period of his incumbency. He can exclude every one from his manse, nor is a heritor in that respect distinguished from the rest of the public.

For many centuries the land of Scotland has been taxed in many ways, but the trend of the times is to relieve the land and place the burden elsewhere. By the Church of Scotland (Property and Endowments) Act, 1925, Parliament has decreed that the General Trustees of the Church of Scotland shall take the place of heritors in relation to manses subject to the manses being put into good repair by the heritors. In the words of the Act, all rights of property in manses are to belong to the General Trustees to the same effect as if a complete feudal title holding of the Crown in free blench farm for payment of a penny Scots yearly if asked only had been duly constituted in favour of the General Trustees.

The story of the manse is thus, like Gaul, divided into three parts, viz.: (1) Pre-Reformation Period; (2) Post-Reformation Period; and (3) the Period after 1925. The first two periods have been commented on in order to elucidate generally the position of the manse. The third period we must label with the Asquithian phrase, "Wait and see.

In this new edition Professor MacFall has been at pains to provide the students of forensic medicine with the latest available information in a subject which is constantly developing. Considerable additions have been made to the book, and the latest statutes on the sale of poisons have been explained. Also, a chapter has been added on Medical Conduct," which epitomises the disciplinary action of the General Medical Council. These additions serve to bring the work down to date, and promise a prolongation of the deserved popularity which it has enjoyed.


Annual Summary of Tax Cases. Vol. I., 1922-1923; Vol. II., 1924, with Notes on the Judgments. By Raymond Needham, Barrister-at-Law. 1925. London: Gee & Co. (Publishers) Ltd. Price 11s. per volume.

Syncopated law reports are becoming the fashion. We have recently seen examples of them in Scotland, and now we have in this new series the promise of all reported taxation cases served up annually in tabloid form. We can commend the series to those who like their law in this shape.

The Modern Law of Real Property. By G. C.
Cheshire, Barrister-at-Law. 1925. London:
Butterworth & Co. Price 35s. net.

A careful restatement of the English law of real property, in the light of recent legislation, is a necessity for the legal profession in England. Many have in recent months attempted the task, but Mr Cheshire's volume promises to take an exceptionally high place among them. His work is much more than a mere commentary on the new legislation. It presents a careful comparison of the old and the new, and fully deserves the description of a restatement of the law as it now stands.

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