Page images


[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]

by Mr Macdonald, and six fine volumes of ferred to the question of company law reform, Scottish Armorials, being facsimiles made and and pointed out that it would be advantageous coloured by him from ancient originals. There if some of the anomalous differences between are also a considerable number of valuable Scots and English law, particularly in the printed books on heraldry.

Court's power in cases of fraud and misfeasance, 5. Kelso Charter.-By permission of the were abolished. Duke of Roxburghe, the Great Charter of Kelso, commonly known the Malcolm MR JAMES CONNER, who was appointed to Charter, which belongs to His Grace, has been succeed the late Dr David Littlejohn as Sheriffdeposited on loan in the Library, and has been Clerk of Aberdeenshire, was entertained at a placed on exhibition to the public in the Laigh complimentary dinner on Wednesday evening Parliament House. This Charter, which was in the Palace Hotel, Aberdeen. The company granted by King Malcolm IV. to the Abbey of about eighty was presided over by Mr William of Kelso in 1159, was considered by Mr Cosmo Rae, president of the Society of Advocates, who Innes to be the most interesting of all Scottish said that in the course of an experience of nearly charters. Its unique interest consists in the half a century he did not remember.a meeting fact that it contains the two earliest Scottish of a social nature so widely representative of historical portraits, representing King David, the profession. He proposed Mr Conner’s health “the sair saint," and Malcolm IÙ., "the in eulogistic terms, and Mr Conner responded.

IV Maiden.”

Other toasts included The Legal Profession, 6. Grant for Bookbinding.-During the year proposed by Sheriff Laing and replied to by Mr the Curators have received from the Scottish D. M. A. Chalmers, and a The Chairman,” proNational Library Endowment Trust the sum posed by Sheriff Dallas. of £500, to be spent on the rebinding and repair of the older books in the Library. This has MR ADAM CAIRNS SMITH, solicitor, Wallace enabled them to carry out some much-needed Chambers, John Dickie Street, Kilmarnock, repairs.

informs us that he has assumed his son, Mr 7. Cataloguing.—The Catalogue has been Alexander Findlay Cairns Smith, B.A. (Oxon.), kept up to date.

LL.B., solicitor, as a partner, and that the 8. Staff.The duties of the assistants have business will in future be carried on under the been satisfactorily performed.

firm name of A. & A. F. Cairns Smith. 9. Reports to Curators.—A report on the administration of the Library has been presented to each stated meeting of the Curators. 10. Expenditure.--An account of the Library

RECENT LAW LITERATURE. expenditure is included in the treasurer's

Scots Statutes for 1924. W. Green & Son Ltd. statement.

Price 10s. 6d. The Workmen's Compensation Acts, 1906–1923. By

T. J. Connolly. W. Hodge & Co. Ltd. A LECTURE on company law was delivered

Price 258. to the Glasgow Incorporated Accountants' Hall's International Law. Eighth Edition. By Students Society on Thursday evening in the Professor A. Pearce Higgins. Oxford University Atheneum, Glasgow, by Mr D. R. Matheson, Press

Price 368. F.S.A.A., Edinburgh. The lecturer emphasised the separate legal identity of a company as dis- Wharton's Law Lexicon. Thirteenth Edition. By

Ivan Horniman. Stevens & Sons Ltd. tinct from the members composing it, and

Price 50s. quoted a number of the leading cases bringing out this distinction. He dealt briefly with cer- Dymond's Death Duties. Fourth Edition. Solicitors' tain details relating to the memorandum and Law Stationery Society

Price 21s. articles of association, directing particular attention to that most important clause, the objects clause, in the memorandum. The ques

SPECIAL NOTICE. tion of profits available for dividends was The Editor will welcome legal problems or treated at considerable length, and the diffi- questions of interest from subscribers, and will, culties, as brought out in the case law on the wherever possible, arrange for articles thereon by subject, were fully discussed. A brief account experts. Interesting points are continually cropping of a floating charge led up to a short survey of up in practice, and there is at present "no means some of the main points of difference between other than that now suggested whereby a lawyer in

one part of Scotland may benefit at a saving of Scots and English law in regard to companies. time and money from the experience of a lawyer in

In concluding his lecture Mr Matheson re- another part who has dealt with a similar problem.

[ocr errors]

“it shall appear

[ocr errors]

-А PARISH COUNCIL'S RECOURSE of any district both in distinctly parochial AGAINST THE RESOURCES

institutions and also in public, private, and OF A

district asylums within or beyond the district " PAUPER LUNATIC.

(section 8). By J. O. TAYLOR, M.A., LL.B., Advocate.

Persons detained in asylums may have some

means of their own, or may have what is equally The writer has been requested to deal with good in the eye of the law-resources in the this subject in a short article. The subject is shape of claims to maintenance against relatives one which is of interest to all parish councils, liable and able to maintain them. If both and, it may be, to the relatives of persons who kinds of resources are available, or either, and have been confined in asylums, and to the sufficient to pay for maintenance, the inmate is advisers of these relatives. To such it is hoped not a pauper lunatic. If his funds become that this survey of the statute law and decisions exhausted, however (see Lasswade v. Edinmay be of use.

burgh and Glasgow (Local Government Board The ground-work of the law is found in the Arbitration), P.L.M. 1918, p. 101), and if his Lunacy (Scotland) Act, 1857. Section 75 relatives cannot, or cannot be forced to, provide provides that a pauper lunatic detained in a for his full maintenance, even though they pay district asylum shall be held to belong and be part, then his parish will be liable for the whole chargeable to the parish in which he had his or part, as the case may be, and in terms of settlement at the time of the order for his the above definition he will then be a pauper reception, which parish is liable in repayment lunatic. to the District Board concerned of the amount It will be readily understood that sometimes disbursed for the lunatic's maintenance, and also a parish (whether the parish from which the (section 76) for his examination and removal. lunatic was taken or the parish of settlement)

The following section (77) deals with any will have paid the lunatic's maintenance on the lunatic, and provides that the above disburse-footing, according to the information then ments shall be defrayed out of the estate of available, that there were no means of the any lunatic, or if such lunatic has no adequate lunatic available, and no relatives. If, however, estate, and if such expense shall not be borne

that there are available by his relations, then he shall be treated as a resources, the paying parish may have recourse pauper lunatic, and the expense shall be against these, e.g. either a parish of settlement or defrayed by the parish of settlement.

private persons. Section 78 provides for expenses being paid, The above sections have been the subject of in the first instance, by the parish in and from a series of decisions (not always, however, of which the lunatic was taken and sent, where the Supreme Court) which appear to cover most his parish of settlement cannot be ascertained of the sets of circumstances likely to arise. and he has no means himself and no relations There are, for instance, cases dealing with a who can be made liable. This provision is lunatic's own estate. The rule evolved is that subject, however, to a right of recourse at any that estate being liable for the maintenance time when it shall appear that such expense is of the lunatic, if its existence has not been legally chargeable against any party or parish. known, yet when it is ascertained, recourse may A parish of settlement, when ascertained, is be had. When, however, the lunatic has been only liable upon statutory notice being given, maintained for some time as a pauper and and only for expense incurred subsequent to subsequently acquires estate, such estate is the notice and for the year preceding.

not liable for past maintenance, relief legally It is noteworthy that there is in the Act of given not being a debt of the pauper or recover1857 no definition of " pauper lunatic” except able from him. The newly acquired estate what can be read out of section 77. The will, of course, be available for his future Lunacy (Scotland) Act of 1862 supplies the maintenance. following definitions, however :

In Dinwoodie v. Graham (1870, 8 M. 436) a (1) “ Lunatic is defined to mean and person found insane in a parish and apparently include every person certified by two medical destitute was sent by the inspector of poor to persons to be a lunatic, an insane person, an an asylum, under the Act of 1857, and mainidiot, or a person of unsound mind.”

tained for some time by the parish. In an (2) “Pauper lunatic” is now defined to action by that parish against the lunatic's parish

mean and include any lunatic towards the of settlement subsequently discovered, the expense of whose maintenance any allowance defence was that the lunatic had not been a is given or made by any Parochial Board”

pauper, being entitled to an annuity from a (now Parish Council).

person in London. It was held that if recourse This Act also sets up lunatic wards in poor- could be had against this fund, which seemed houses, so that we now find pauper lunatics probable, the parish of settlement could operate


[ocr errors]
[ocr errors]
[ocr errors]



that recourse, but must first settle with the the lunatic; (2) descendants-children and relieving parish. This decision seems to be in grandchildren ; (3) ascendants-father, mother, accordance with section 78 above quoted. In grandparents. They are, of course, only liable Campbell v. Macfarlane (1885, 12 R. 713), according to their means, which may result in on the other hand, a parish council had main- the parish concerned only recovering part of tained a pauper who subsequently acquired the lunatic's" maintenance. Cases in this money. It was held that the parish could not connection are noted here. In Beattie 'v. recover past maintenance from this fund. It Grozier (8 R. 787), where the lunatic's father was observed, however, that the case would had an income of £120 per annum, two brothers have been different had the pauper been in between them contributed £65 to the household, possession of funds and fraudulently concealed and two sisters were in service, the Court held the fact. A further observation in this case that in these circumstances the father ought was that a parish council, where relief is due, not to have been relieved of the maintenance must give it unconditionally, and cannot make of an imbecile son in an asylum, and that a a bargain with a pauper to assign to them all parish who put him there under section 14 of property which he may in future acquire. the Act of 1862 and maintained him there, Forfar v. Davidson (1898, 1 F 238) is con- ought not to have done so, and could not recover firmatory of these decisions, and the principles from the parish of settlement. In Melrose v. are also followed in Rutherglen v. Tolmie Hawick (1912 S.C. 1029), a parish which had (Sheriff Court, P.L.M. 1922, p. 192).

paid asylum maintenance for a woman lunatio Cases of insurance policies belonging to brought an action of relief against the parish persons in receipt of relief are somewhat special. of settlement. The husband of the woman In one Sheriff Court (Ardrossan v. paid for some time by arrangement with the M'Creadie, P.L.M. 1913, p. 244) a pauper, parish, and then refused on the ground that though in receipt of relief, had continued to he was only earning 30s. per week. The Sheriff pay small premiums on policies for £20. On assoilzied the defenders on the ground that the his death the relieving parish were held entitled woman was not a proper object of relief, to the proceeds in return for the relief given. according to the husband's means (the Court This is presumably on the principle of concealed of Session decision turned, not upon the merits,

In another Sheriff Court case (Pru- but on the competency of the appeal, which was dential Insurance Co. v. Dalziel, P.L.M. 1914, negatived). p. 203) there was a policy on a pauper's life, In other cases, according to their means, it the premiums on which were paid by his has been held just that relatives should pay part nephew, and it was held that the nephew was of the maintenance, and the parish primarily entitled to repayment of the premiums out of liable the balance ; and that where this was the proceeds, and the relieving parish to the done the relieving parish were entitled to balance:

recover their part of the expenditure from the In another Sheriff Court case of a special parish of settlement (Falkirk v. Pitsligo (Local type it was held that, according to the pro-Government Board Arbitration), P.L.M. 1909, visions of the National Health Insurance Acts, p. 169 ; Sorn v. Mauchline (Local Government a parish council, which had maintained a lunatic Board Arbitration), P.L.M. 1919, p. 217). in an asylum until his death there, could not Where this is so the lunatic is a pauper lunatic recover from his Approved Society, National in terms of the definition in the Act of 1862. Health Insurance benefits which had accrued Great care should be exercised by an inspector to his credit during the time in which he was in of poor before he takes action under section 14 the asylum (Tibbermore Parish Council v. of the Act of 1862. If the person sent to the Scottish Rural Workers' Approved Society, asylum is not clearly a proper object of relief, P.L.M. 1923, p. 273).

he should get an undertaking from the relatives There are many cases dealing with recourse to relieve the parish in whole or in part (Melrose against relatives alleged to be under obligation v. Hawick (supra); Muiravonside v. Turner to aliment a person who has become a lunatic. (Sheriff Court), P.L.M. 1910, p. 114). The claim of a parish against such is only one Where the relatives liable are several of a of relief, and the expense must have been family, e.g. two or more sons, it should be noted incurred by the parish before it can be claimed that proceedings may be taken against any one from the relatives. A continuing decree for member, who cannot plead that the others future aliment cannot therefore be granted should also have been called (Rutherglen v. (Den v. Lumsden, 1891, 19 R. 77). The manner Dick (Sheriff Court), P.L.M. 1917, p. 16; of recovery and the amount recovered will Duncan v. Duncan (Court of Session), 1882, 19 depend on the principles governing aliment, S.L.R. 696 ; P.L.M. 1882, p. 412). irrespective of poor law statutes. The order Again, cases may arise where the liable of liability is roughly (1) husband or wife of relative (e.g. father or mother) has died but has

[ocr errors]



left some estate. In Pearson v. Steedman advocate to follow sik puir creatures causes." ((Court of Session), P.L.M. 1886, p. 192), a The appointment is not now, of course, made father had paid for his lunatic son for some time, in this manner, nor (ostensibly) from the but afterwards (1864) refused. The son died statutory motive. It might surprise the drafts

) in 1884, and the father in 1885. It was dis- men of the statute to know that the term covered that the father had left some estate, “leill and wise advocate ” would ever come, and the parish raised an action against his as it has after four centuries, to include both trustees. It was proved that the father had sexes. The statute continues, "Gif sik causes been able during his lifetime to contribute be obtained, the wranger sal assyith baith the one-third of the expense of maintenance of the partie skaithed, and the advocatis coastes lunatic son, and the parish were held entitled and travel.” Occupants of the office may

be to recover that amount. Dick v. Manson cautioned not to expect too much from this, (1895, 33 S.L.R. 360 ; P.L.M. 1896, p. 130) is as in most of these cases, which are chiefly of to a similar effect, it being observed that the the consistorial variety, both parties are “poor. right of the parish to recovet was limited to At one time a salary of £10 per annum the years during which the relative was proved (presumably Scots) was attached to the office to have been in a position to support the pauper. (A.S., 2nd March 1534), but seems, regrettably, In Edinburgh v. A and Others ((Sheriff Court), to have lapsed. It might have been a graceful P.L.M. 1919, p. 240), the principle was carried act on the part of the late Government to further, and it was observed that although subvent those who give their services to the the amount already expended in supporting poor and the oppressed, but the opportunity the lunatic son exceeded his interest in his has been allowed to pass. father's estate, the son's right was to aliment, In the last instalment of these notes there and was therefore a debt due by the father, so was an unfortunate but obvious misprint. The that if the son's legal or conventional provisions subject treated was juries, and a contrast was proved insufficient, the claim must be met out made between our practice and that of England of the estate by those who were lucrati by in regard to the payment of jurors. This word the succession. An apparently contrary, but was printed as juniors," and a reference was actually reconcileable, decision was recently made to their remuneration of 10s. a day. In arrived at in the Court of Session in Edinburgh case any innuendo should be read into this v. Couper (P.L.M. 1924, p. 41). There the statement, it is desirable to make it quite father of a pauper lunatic left a small estate, clear that * jurors was the word intended. which fell on the father's death intestate to Even standing by itself, the sentence be divided between the pauper and her brother. regards_payment, juniors seem to be worse The question was whether the executor was off in England than they are here carries entitled to distribute the estate or obliged to patent self-contradiction on its face. In hold it against a possible claim for the pauper Scotland, so far as is known, we have never when the latter's share should have become had any equivalent of the celebrated Irish exhausted. It was held (following Howard's counsel who, when charged with unprofessional Exr. Howard, 21 R. 787) that the conduct in accepting a fee of some shillings executor entitled to distribute. The from a poor client, retorted: "I took all the distinction between this and the last case is, poor devil had, and surely you can't call that we think, that between liability for past unprofessional conduct." maintenance, which was the claim in that case, Unless more erudite than the present writer, and liability for possible future maintenance. some earnest students of the law reports may

have been puzzled by a sentence in a recent judgment : “These things appear to me to

be as remote as Goodwin Sands and Tenterden NOTES FROM PARLIAMENT HOUSE.

steeple.” The origin of this phrase, now used It may interest those who were recently to indicate a non sequitur, appears to have been appointed to act as counsel for the poor in the that a member of a commission sent to Kent current year to know that their office is one of to ascertain the cause of the Goodwin Sands greater antiquity than the Faculty of Advocates took the opinion of the oldest inhabitants. itself. The Act of 1424, cap. 45, “anent One said he believed that Tenterden steeple complaintes to be decided before the Judge was the cause. This sounded illogical, but the Ordinar," provides that "gif there bee onie fact apparently was that the Bishop of puir creature, for fault of cunning or dispensis, Rochester applied to the building of Tenterden that cannot, nor may not follow his cause, steeple revenues intended to keep clean the the King, for the love of God, sall ordain the harbour of Sandwich. So the oldest inhabitant judge, before whom the cause suld be deter- was really following a chain of logical reasoning mined, to purwey and get a leill and a wise worthy of Darwin when he demonstrated that

[ocr errors]




[ocr errors]



not do so,

[ocr errors]
[ocr errors]
[ocr errors]
[ocr errors]

a number of cats in a neighbourhood ensured have not much experience, I am sure I can do a good supply of clover.

as well as

who, of course, have a Dr Johnson more than once gave his opinion good deal; and one of the Lords Ordinary has

the question of a lawyer's soliciting spoken very highly of the way I conducted an employment, and stated that he himself would undefended divorce case before him. My

not because I should think it wrong, chambers are very conveniently situated for but because I should disdain it.” On another your agents. Hoping to hear from you soon, occasion, however, he admitted that he “would as I am writing to several other important not have a lawyer to be wanting to himself undertakings, and expect to be very busy in in using fair means.

I would have him to the near future, I am,” etc., etc. inject a little hint now and then, to prevent The Prison Commissioners' Report dwells on his being overlooked.” Even this probably the amelioration which is being made in prison seems shocking to us, but what would we say life. Adult educational classes are held in the to such “little hints” as are apparently not evenings in many prisons ; lectures, concerts, unknown across the Atlantic ? The two follow and occasional debates are held. All prisons ing extracts are from the same number of an provide a range of employments and an eightAmerican law paper, and were queries sub-hour day. This year the International Prison mitted, apparently in all good faith, to a Congress is to meet in London, and the best

committee on Professional Ethics.” “ Question possible methods of dealing with prisoners are - May I know whether in the opinion of your to be fully canvassed. These facts, and the committee it would be unprofessional for the interest taken at large by the community in all counsel of an association to send out letters to such problems as reformation of the criminal, a number of its members suggesting employ- might have astonished Sir Walter Scott, who ment upon an annual retainer ? Answer“ wrote in his journal nearly a hundred years In the opinion of the committee it is desirable ago : “The philanthropy of Howard seems to that such solicitation of business should be have risen to a pitch of insanity.” After discouraged; the committee deems it un referring to the prisons of forty or fifty years professional.” The second query is even more before as“ dungeons,” he goes on: "I do not see startling. Question-Is it the opinion of the propriety of making them dandy places of the committee that members of the Bar should detention. They should be a place of punishnot resort to the solicitation of business by ment, and that can hardly be if men are lodged means of a communication in the following better, and fed better, than when they are at form ? Gentlemen : I would like to submit large. As to reformation, I have no a proposition to take care of all your legal great belief in it where the ordinary class of matters under a yearly contract at less than culprits, who are vicious from ignorance or your collections alone now cost, in order to habit, are subjects of the experiment." He make a client of you. My method is now being goes on in a vein which is striking if the reader used by many large reputable firms and reflects how small the population of Scotland corporations in this city, to whom I will be was in Sir Walter's day. ,

The state of society pleased to refer you. I shall be pleased to now leads so much to great accumulations of call upon you and explain in detail.—Very humanity, that we cannot wonder if it ferment truly yours, A. B. C.' Answer---In the opinion and reek like a compost dunghill. Nature inof this committee such solicitation of business tended that population should be diffused over is improper." The answers are, of course, all the soil in proportion to its extent. We have that could be desired; but as to the questions, accumulated in huge cities and smothering if one may paraphrase the aforesaid Dr Johnson, manufactories the numbers which shall be speaking on another topic, “the wonder is spread over the face of a country; and what not that the questions are thus answered, but wonder that they should be corrupted ? that they are asked at all.”

A great deal, I think, might be done by executThis kind of thing opens up a pleasing vista ing the punishment of death, without a chance of what might be, if more business-like” of escape, in all cases to which it should be methods were adopted by members of the pro- found properly applicable; of course, these fession. An aspiring advocate might write as occasions being diminished to one out of twenty follows: “To the X.Y.Z. Railway Co. Dear to which capital punishment is now assigned. Şirs, I notice from the papers that you seem to Here is a strange mixture of the Tory and the be involved in a good deal of litigation. I shall reformer; or perhaps it is not as strange after be pleased to do your junior work in the forth- all. coming session for an inclusive fee of fifty guineas, which I am sure you will find an MESSRS KING, SONS & PATERSON, solicitors, economy. I should, of course, require a bonus Kilwinning, have assumed Mr John Paterson for any appearances in London. Although I as a partner of the firm.

[ocr errors]



« PreviousContinue »