SOME POINTS OF ENGLISH PROCEDURE-II. By E. R. M. TAYLOR, Law Agent. 2. THE WRIT OF SUMMONS. The most usual way of commencing proceedings in the King's Bench Division is by a writ of summons. It is therefore proposed to consider this form of process first. The writ is equally used in the Chancery as in the King's Bench Division and the procedure is very similar in both, but exceptions will be noted later when dealing with the Chancery Division. 66 The writ in England is a printed form of a single or double sheet wherein the blanks on the face of it are filled in with the name of the plaintiff, the name and address of the defendant, the name of the Lord High Chancellor, and the date. On the back of the writ is a short statement of claim, as: The plaintiff's claim is £110, 10s. Od. for goods sold and delivered by him to and at the request of the defendant." Then follow the particulars shewing how the sum is made up when the writ is specially indorsed. The writ is signed by the solicitor issuing it with his address, and if he does not carry on his business within three miles of the central office of the Royal Courts of Justice or of a district registry, there must be a further address within that limit, called an address for service." The writ further shews the costs which have been incurred by the issue and the address or principal place of business of the plaintiff. If the writ is "indorsed generally" (e.g. the plaintiff's claim is for damages for breach of promise of marriage), the indorsement merely indicates the nature of the plaintiff's claim without details. These, in the form of a "statement of claim," are delivered later. Three copies of the writ are made and two taken to the Writ Department of the central office, or, in provincial towns where there is one, to the district registry. One copy is impressed with a stamp for one pound ten shillings and the other is sealed: the former is filed and the latter is the writ proper. The Writ Department allocates a number to each writ, and the reference of year, plaintiff's initial, and such number are quoted on all subsequent proceedings. Where the writ has, how ever, been issued from a district registry on an appearance being entered at the central office, a new number will be allocated, which will be final. In the Chancery Division the Writ Department also marks the name of the judge to whom the cause is assigned. 3. SERVICE OF THE WRIT. Service of a writ may be effected in any one of four different ways: (1) Personal service; (2) substituted service; (3) service out of the jurisdiction; and (4) acceptance of service by the defendant's solicitor. (1) Personal Service. This is the most usual way of serving a writ, and consists of the delivery to the defendant in person of a copy of the writ, and, if he demands to see the original writ, the process server must shew it to him. Each defendant must get a copy of the writ. It is to be noted that in England a partnership is practically a separate persona in that it can sue or be sued in its firm name, and, as for service, the copy writ may be served upon the person having the control or management of the partnership at its principal place of business provided a written notice is served at the same time informing the person served that he is served in that capacity. If no notice is served, he will be deemed to have been served as a partner, and if he is not a partner the service is bad. (2) Substituted Service. Where a defendant within the jurisdiction at the time of issuing the writ cannot be served personally because he has evaded service or has removed from his address, and an affidavit by the process server is filed proving that genuine attempts have been made to effect personal service, after making appointments for the purpose, and that substituted service is likely to bring the action to his knowledge, the master in the King's Bench or the judge in Chancery may grant leave to substitute service by post, or by serving the defendant's manager, or by advertisement in the paper, for personal service. (3) Service out of the Jurisdiction. To issue a writ for service out of the jurisdiction, leave must first be obtained from a judge, and in some cases notice of the proposed writ must first be given to the proposed defendant. Scottish solicitors will not, however, be concerned with this form of service, nor with the following. (4) Accepting Service. - The defendant's solicitor, if he has been duly authorised, may accept service and give an undertaking, indorsed on the writ, to enter appearance within the induciæ, and a copy of the writ is left with him. If the solicitor fails to enter appearance, or if he has acted without the authority of his client, the service is ineffective till he does, and the solicitor is personally liable for contempt, or in the costs of an application calling upon him to shew cause why he should not enter such appearance. 4. APPEARANCE. When a writ has been duly served, the fact of such service must be indorsed on it within three days. As in Scotland, the induciæ commences to run from the date of service. The defendant has eight days, inclusive of the day of service, within which to enter appearance. If the induciæ have expired but judgment has not been signed in default, the defendant may still appear, and he requires no leave so to do. In entering appearance a printed form is again completed and signed by the defendant's solicitor with his address and, if necessary, an address for service. A copy is sent to the plaintiff's solicitor by the Court. The defendant has only four moves before he enters appearance. He may apply to the Court to set aside the writ, the service of it, or the order giving leave to serve it. If he enters unconditional appearance, he loses any rights which he might have had by way of objection. He may, however, on obtaining leave of a master, enter a conditional appearance and thus retain his rights. He may apply to have the action transferred to the commercial list or to the County Court, if the action is competent to either of these Courts. He may pay the amount of the plaintiff's claim and costs. He may interplead where he has no interest in the property which is sought to be recovered other than a claim for costs and charges. (To be continued.) GRETNA GREEN. A ROMANTIC RETROSPECT. The visitor to Gretna Green to-day would need the stimulus of a lively imagination to picture the present town with its vast network of munition factories and workshops as the rural centre of exciting and romantic incident. It is nearly seventy years since the high road from Carlisle to the Scottish border village, as Gretna then was, echoed to the gallop of flying steeds urged to the top of their capacity by frantic lovers or by angry guardians in hot pursuit of eloping wards. The Gretna Green marriage has passed into history. As an episode in the relations between England and Scotland it is known to everyone. But what precisely were the circumstances to which the runaway match owed its origin, and what were the differences between the marriage laws that rendered the match possible, are not now so well remembered. and that all such marriages should be void. This Act did not apply to Scotland. In this country no solemnity or ceremony has ever been necessary to constitute a valid union. Interchange of vows alone was and is necessary ; and the evidence of two witnesses will establish the marriage. Even minors may marry without the consent of parents or guardians. The passing of the Act in England led immediately to its evasion in the runaway match to Scotland; and Gretna Green being on the borders, that village soon became the centre of a very considerable "trade" on the part of the innkeepers and self-constituted priests. There had been irregular marriages at Gretna prior to the passing of Lord Hardwicke's Act, but they were of comparatively rare occurrence. The commonly accepted notion that these so-called priests were blacksmiths has no foundation in fact. The truth is that the designation was figuratively derived from the smith's art of welding or joining. The most notorious of these priests, one Joseph Paisley by name (1727-1811 circ.), was a drunken freebooter. It was in his time that the marriages first became numerous and famous. A graphic description of this worthy is given by the Rev. John Morgan in The Statistical Account of Scotland" for 1793. 66 Paisley was long an object of curiosity to travellers. In person he was an overgrown mass of fat, weighing at least twentyfive stone. He was grossly ignorant and insufferably coarse in his manners, and possessed a constitution almost proof against the ravages of liquors; for, though he was an habitual drunkard, he was rarely or never seen drunk. For the last forty years of his life he discussed a Scotch pint (equal to three English quarts) of brandy per diem!" 66 On one occasion Paisley had two couples to join in wedlock. All the parties were in desperate haste, and in the confusion of the moment the "priest"-being possibly in his cups-made the slight mistake of uniting the wrong brides and bridegrooms. On the matter being brought to his notice, Paisley complacently remarked : Aweel, jist sort yersels." He it was, too, who systematised the practice of the irregular marriage. He took legal advice on the validity of his unions; and, fortified by the opinion he received, he kept a register and issued certificates, or "lines" as they are commonly called in Scotland. The certificate ran as follows : "These are to certify to all whom it may concern that and came before me and declared themselves to be both single persons, and were lawfully married according to the way of the Church of England, and agreeably to the laws of the Kirk of Scotland. Given under my hand at Springfield near Gretna Green this day, etc., before these witnesses." Many famous marriages have been contracted at Gretna. One of the first and most notable, and one that brought the little village into the limelight, was that of John Edgar of St Mary's parish and Jean Scott of the parish of Wetheral, both in the county of Cumberland. These two satisfaction of seeing Nemesis in the shape of the angry mother pass them unobserved. While she continued the pursuit as far as Annan, Jack quietly drove the now greatly relieved couple into Gretna, and had them married without further trouble. "No or ceremony The number of these fugitive marriages latterly became so great that, a century after the passing of Lord Hardwicke's Act, legislative action was resolved on to suppress them; and by an extraordinary turn of events it fell to Lord Brougham to introduce the necessary measure. In 1856 was passed the Act known by his name, which provided that: irregular marriage contracted in Scotland by declaration, acknowledgment, (after 31st December 1856) shall be valid unless one of the parties had at the date thereof his or her usual place of residence there, or had lived in Scotland for twenty-one days next preceding such marriage." The effect of this enactment was to render the law of Scotland inhospitable to urgent lovers, and clandestine elopements from England impossible of accomplishment. But for a century they had enjoyed a vogue at once notorious and romantic, and their passing marked the close of an interesting chapter in the relations of the two countries. lovers are said to have made their escape by So frequent did the elopements become that regular postboys were employed at the Carlisle inns, whose duty it was to pilot the runaway couples to Gretna and bliss. One of these was Jack Ainslie, of whom the story is told how he befriended a fugitive couple from London. He had driven them as far as Longtown when they dismissed him on the plea of feeling tired and would have dinner before continuing their journey. Jack, who was experienced in matters of the kind, reluctantly retraced his steps to Carlisle, after advising them not to linger unduly. He had not long returned when the mother of the lady arrived at the inn; and Jack, taking in the situation at a glance, quietly saddled a horse and galloped off to warn his patrons, who resumed their flight with all speed. They had not proceeded far when the sound of hurrying wheels was heard; but Jack was equal to the emergency. He drove his charges behind a thick hedge, from the shelter of which they soon had the T. P. R. FACULTY OF ADVOCATES. - At a meeting of the Faculty of Advocates held on 20th November, the Dean of Faculty, Mr Condie Sandeman, K.C., presiding, Mr J. S. Leadbetter, K.C., was elected Keeper of the Faculty's Law Library, and Mr J. R. Wardlaw Burnet was elected Clerk DECISIONS IN THE ENGLISH Mikkelsen v. Arcos Limited. CARRIAGE BY SEA-CHARTER-PARTY-OBLIGA TION TO LOAD FULL CARGO-CUSTOM OF PORT PREVENTING FULL LOADING.- Charterers failed in their undertaking to load a full cargo and provide sufficient "ends" for broken stowage. In an action by the shipowner, the defence of the charterers was that failure to load a full cargo was due to the custom of the port of loading, and they were protected by the decision in Cuthbert v. Cumming (11 Ex. 405). Held the failure to load a full cargo was due to inefficient loading as much as to the custom of the port, and that the defendants were liable (Cuthbert v. Cumming distinguished).--K.Β. Div. (Mackinnon J.). - 16th October 1925. The "Batavier III." SHIP-INJURY TO ONE VESSEL BY MUTUAL FAULT OF ITSELF AND ANOTHER-APPORTIONMENT OF DAMAGES-MARITIME CONVENTIONS ACT, 1911 (1 & 2 GEO. V. CAP. 57), SECTION 1 (1) NOT CONFINED TO COLLISION CASES. - Circumstances in which held that one vessel should bear three-fifths and the other two-fifths of the damage due to mutual fault. Held further, following dicta in The "Cairnbahn” (1914 P. 25), that the section of the Maritime Conventions Act, 1911, was not confined to cases of collision. -Prob., Div., and Adm. Div. (Hill J.). -20th October 1925. Rush v. Matthews. LANDLORD AND TENANT-EMERGENCY LEGISLATION-INCREASE OF RENT, ETC. (RESTRICTION) АСТ, 1920 (10 & 11 GEO. V. CAP. 17), SECTIONS 1 AND 8-FOURTEEN YEARS' LEASE DETERMINABLE BY A WEEK'S NOTICE-PREMIUM-TRUE MEANING-PREMIUM OR RENT-IRRECOVERABLE. Premises were let on a fourteen years' lease (determinable, however, on a week's notice at the tenant's option) for a rent payable weekly, a weekly premium, and a further lump sum as premium. In an action to recover one of the weekly premiums, held that though the prohibition in section 8 against the requirement to pay a premium did not extend to leases of fourteen years and upwards, yet, as the true meaning of the agreement bore that this weekly premium was really rent, it was irrecoverable in terms of section 1.-K.B. Div. (Sankey and Salter JJ.).—23rd October 1925. filling in the blank with a list of Labour Party achievements. In an action by A. & Co. against B. & Co., held this use of A. & Co.'s imprint was calculated to disparage A. & Co. in the eyes of the public and of their customers. -K.B. Div. (Finlay J.). - 23rd October 1925. Cohen v. Jonesco. LOAN-MONEY-LENDER-ACTION BY MONEY LENDER-AGREEMENT BY DEBTOR TO SUBMIT TO JUDGMENT-ATTEMPT TO RE-OPEN TRANSACTION-MONEY-LENDERS ACT, 1900 (63 & 64 VICT. CAP. 51), SECTION 1 (1) -RES JUDICAТА. — The Money-lenders Act, 1900, section 1 (1), empowers the Court to re-open a money-lending transaction "notwithstanding. . any agreement purporting to close previous dealings." In an action by a money-lender on a loan, the Court directed that the judgment should not be drawn up if the debtor, within a specified term, made payment. In a subsequent action by the money-lender, the debtor tried to re-open the previous transaction as "harsh and unconscionable," notwithstanding the agreement embodied in the previous judgment. Held that though there was this previous agreement, it was an agreement merged in a judgment and was res judicata, and that to such an agreement section 1 (1) could not apply. - K.B. Div. (Finlay J.). - 30th October 1925. LAW LIBRARY. BOOK NOTICES. Handbook on the Formation, Management, and Winding-up of Joint Stock Companies. By Sir Francis Gore-Browne, K.C. Thirtysixth Edition, by T. E. Haydon, K.C., and Herbert W. Jordan. 1925. London: Jordan & Sons Ltd. Price 17s. 6d. net. It is no slight achievement for any book to attain to a thirty-sixth edition. The first edition of this handbook was an unpretentious little volume published in 1866. Successive editions have kept pace with the growth of statute and case law on companies, and in its latest phase the work assumes the form of a bulky volume of well over seven hundred pages. The alterations and additions in this latest edition are not very extensive, but care seems to have been taken to give effect to the latest English decisions. It is only fair, however, to the Scottish lawyer to warn him that a persistent neglect of the Scots law reports has seriously detracted from the value of the work. 34 THE LATE MR JAMES BURNS KIDSTON, of the legal profession in a great commercial was not a trace of "the hair-splitting attorney" about Mr Kidston. While keen to do his duty in the interests of his clients, he so discharged it to them as also to leave on the mind of the brother professional (who for the moment had to look at the matter involved from a different angle) the impression that he was negotiating with a fair and broad-minded Mr Kidston had the temperament which is always eager to grasp the opportunity of adjusting a fair compromise in the interests of all concerned a most valuable faculty in anyone who has to handle the many important business deals, and often exceedingly delicate family and other matters, which fall to the lot man. and industrial centre like Glasgow. bot In addition to his legal work Mr Kidston, throughout his whole life, found time to take more than an active share in the administration of various philanthropic and charitable undertakings in his native city. In this branch of public service MrKidston's catholic sympathies went out generously and wholeheartedly to both the old and the young. For the long period of thirty-five years Mr Kidston acted as clerk of the Incorporation of Barbers in succession to his father, Mr J. B. Kidston, who died in 1890. MrKidston, senior, having held the office of clerk for fifty years, the joint service of father and son extended over the long period of eighty-five years. Concurrently with his connection with the Incorporation of Barbers, Mr Kidston also succeeded his father as secretary of the Society of Sons of Ministers of the old United Pres byterian Church, the office having been held between father and son for sixty-eight years. He also succeeded his father as secretary of the City of Glasgow Native Benevolent Association, from which, over many years, have flowed countless and timely benefits to many citizens of Glasgow who have seen better days-a class which is liable to be overlooked in the dispensations of ordinary charities. Mr Kidston was for some time a director of Messrs James Hedderwick & Sons Ltd., the proprietors of the Glasgow "Evening Citizen," and at the time of his death he was chairman of the PublicHouse Trust (Glasgow District) Ltd., and president of the Anderson College of Medicine, |