by Mr Macdonald, and six fine volumes of Scottish Armorials, being facsimiles made and coloured by him from ancient originals. There are also a considerable number of valuable printed books on heraldry. 5. Kelso Charter.-By permission of the Duke of Roxburghe, the Great Charter of Kelso, commonly known as the Malcolm Charter, which belongs to His Grace, has been deposited on loan in the Library, and has been placed on exhibition to the public in the Laigh Parliament House. This Charter, which was granted by King Malcolm IV. to the Abbey of Kelso in 1159, was considered by Mr Cosmo Innes to be the most interesting of all Scottish charters. Its unique interest consists in the fact that it contains the two earliest Scottish historical portraits, representing King David, the sair saint," and Malcolm IV., and Malcolm IV., "the Maiden." 6. Grant for Bookbinding. During the year the Curators have received from the Scottish National Library Endowment Trust the sum of £500, to be spent on the rebinding and repair of the older books in the Library. This has enabled them to carry out some much-needed repairs. 7. Cataloguing.-The Catalogue has been kept up to date. 8. Staff. The duties of the assistants have been satisfactorily performed. 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 expenditure is included in the treasurer's statement. ferred to the question of company law reform, and pointed out that it would be advantageous if some of the anomalous differences between Scots and English law, particularly in the Court's power in cases of fraud and misfeasance, were abolished. MR JAMES CONNER, who was appointed to succeed the late Dr David Littlejohn as SheriffClerk of Aberdeenshire, was entertained at a complimentary dinner on Wednesday evening in the Palace Hotel, Aberdeen. The company of about eighty was presided over by Mr William Rae, president of the Society of Advocates, who said that in the course of an experience of nearly half a century he did not remember a meeting of a social nature so widely representative of the profession. He proposed Mr Conner's health in eulogistic terms, and Mr Conner responded. Other toasts included " The Legal Profession,' proposed by Sheriff Laing and replied to by Mr D. M. A. Chalmers, and The Chairman," proposed by Sheriff Dallas. MR ADAM CAIRNS SMITH, solicitor, Wallace Chambers, John Dickie Street, Kilmarnock, informs us that he has assumed his son, Mr Alexander Findlay Cairns Smith, B.A. (Oxon.), LL.B., solicitor, as a partner, and that the business will in future be carried on under the firm name of A. & A. F. Cairns Smith. RECENT LAW LITERATURE. Scots Statutes for 1924. W. Green & Son Ltd. Ivan Horniman. Stevens & Sons Ltd. Price 50s. Dymond's Death Duties. Fourth Edition. Solicitors' Price 21s. A LECTURE on company law was delivered to the Glasgow Incorporated Accountants' Students Society on Thursday evening in the Athenæum, Glasgow, by Mr D. R. Matheson. F.S.A.A., Edinburgh. The lecturer emphasised the separate legal identity of a company as dis- Wharton's Law Lexicon. Thirteenth Edition. By tinct from the members composing it, and quoted a number of the leading cases bringing out this distinction. He dealt briefly with certain details relating to the memorandum and articles of association, directing particular attention to that most important clause, the objects clause, in the memorandum. The question of profits available for dividends was treated at considerable length, and the difficulties, as brought out in the case law on the subject, were fully discussed. A brief account of a floating charge led up to a short survey of some of the main points of difference between Scots and English law in regard to companies. In concluding his lecture Mr Matheson re SPECIAL NOTICE. The Editor will welcome legal problems or questions of interest from subscribers, and will, wherever possible, arrange for articles thereon by experts. Interesting points are continually cropping up in practice, and there is at present no means other than that now suggested whereby a lawyer in one part of Scotland may benefit at a saving of time and money from the experience of a lawyer in another part who has dealt with a similar problem. By J. O. TAYLOR, M.A., LL.B., Advocate. The writer has been requested to deal with this subject in a short article. The subject is one which is of interest to all parish councils, and, it may be, to the relatives of persons who have been confined in asylums, and to the advisers of these relatives. To such it is hoped that this survey of the statute law and decisions may be of use. The ground-work of the law is found in the Lunacy (Scotland) Act, 1857. Section 75 provides that a pauper lunatic detained in a district asylum shall be held to belong and be chargeable to the parish in which he had his settlement at the time of the order for his reception, which parish is liable in repayment to the District Board concerned of the amount disbursed for the lunatic's maintenance, and also (section 76) for his examination and removal. of any district both in distinctly parochial institutions and also in public, private, and district asylums within or beyond the district " (section 8). Persons detained in asylums may have some means of their own, or may have what is equally good in the eye of the law-resources in the shape of claims to maintenance against relatives liable and able to maintain them. If both kinds of resources are available, or either, and sufficient to pay for maintenance, the inmate is not a pauper lunatic. If his funds become exhausted, however (see Lasswade v. Edinburgh and Glasgow (Local Government Board Arbitration), P.L.M. 1918, p. 101), and if his relatives cannot, or cannot be forced to, provide for his full maintenance, even though they pay part, then his parish will be liable for the whole or part, as the case may be, and in terms of the above definition he will then be a pauper lunatic. It will be readily understood that sometimes a parish (whether the parish from which the 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 any lunatic, or if such lunatic has no adequate | estate, and if such expense shall not be borne by his relations, then he shall be treated as a pauper lunatic, and the expense shall be defrayed by the parish of settlement. Section 78 provides for expenses being paid, in the first instance, by the parish in and from which the lunatic was taken and sent, where his parish of settlement cannot be ascertained and he has no means himself and no relations who can be made liable. This provision is subject, however, to a right of recourse at any time when it shall appear that such expense is legally chargeable against any party or parish. A parish of settlement, when ascertained, is only liable upon statutory notice being given, and only for expense incurred subsequent to the notice and for the year preceding. available, that there were no means of the The above sections have been the subject of a series of decisions (not always, however, of the Supreme Court) which appear to cover most of the sets of circumstances likely to arise. There are, for instance, cases dealing with a lunatic's own estate. The rule evolved is that that estate being liable for the maintenance of the lunatic, if its existence has not been known, yet when it is ascertained, recourse may be had. When, however, the lunatic has been maintained for some time as a pauper and subsequently acquires estate, such estate is not liable for past maintenance, relief legally given not being a debt of the pauper or recoverable from him. The newly acquired estate will, of course, be available for his future maintenance. In Dinwoodie v. Graham (1870, 8 M. 436) a person found insane in a parish and apparently destitute was sent by the inspector of poor to an asylum, under the Act of 1857, and maintained for some time by the parish. In an action by that parish against the lunatic's parish of settlement subsequently discovered, the defence was that the lunatic had not been a pauper, being entitled to an annuity from a person in London. It was held that if recourse could be had against this fund, which seemed probable, the parish of settlement could operate d that recourse, but must first settle with the relieving parish. This decision seems to be in accordance with section 78 above quoted. In Campbell v. Macfarlane (1885, 12 R. 713), on the other hand, a parish council had maintained a pauper who subsequently acquired money. It was held that the parish could not recover past maintenance from this fund. It was observed, however, that the case would have been different had the pauper been in possession of funds and fraudulently concealed the fact. A further observation in this case was that a parish council, where relief is due, must give it unconditionally, and cannot make a bargain with a pauper to assign to them all property which he may in future acquire. Forfar v. Davidson (1898, 1 F 238) is confirmatory of these decisions, and the principles are also followed in Rutherglen v. Tolmie (Sheriff Court, P.L.M. 1922, p. 192). Cases of insurance policies belonging to persons in receipt of relief are somewhat special. In one Sheriff Court case (Ardrossan v. M'Creadie, P.L.M. 1913, p. 244) a pauper, though in receipt of relief, had continued to pay small premiums on policies for £20. On his death the relieving parish were held entitled to the proceeds in return for the relief given. This is presumably on the principle of concealed means. In another Sheriff Court case (Prudential Insurance Co. v. Dalziel, P.L.M. 1914, p. 203) there was a policy on a pauper's life, the premiums on which were paid by his nephew, and it was held that the nephew was entitled to repayment of the premiums out of the proceeds, and the relieving parish to the balance: In another Sheriff Court case of a special type it was held that, according, to the provisions of the National Health Insurance Acts, a parish council, which had maintained a lunatic in an asylum until his death there, could not recover from his Approved Society, National Health Insurance benefits which had accrued to his credit during the time in which he was in the asylum (Tibbermore Parish Council v. Scottish Rural Workers' Approved Society, P.L.M. 1923, p. 273). There are many cases dealing with recourse against relatives alleged to be under obligation to aliment a person who has become a lunatic. The claim of a parish against such is only one of relief, and the expense must have been incurred by the parish before it can be claimed from the relatives. A continuing decree for future aliment cannot therefore be granted (Den v. Lumsden, 1891, 19 R. 77). The manner of recovery and the amount recovered will depend on the principles governing aliment, irrespective of poor law statutes. The order of liability is roughly (1) husband or wife of the lunatic; (2) descendants-children and grandchildren; (3) ascendants-father, mother, grandparents. They are, of course, only liable according to their means, which may result in the parish concerned only recovering part of the lunatic's maintenance. Cases in connection are noted here. In Beattie v. Grozier (8 R. 787), where the lunatic's father had an income of £120 per annum, two brothers between them contributed £65 to the household, and two sisters were in service, the Court held that in these circumstances the father ought not to have been relieved of the maintenance of an imbecile son in an asylum, and that a parish who put him there under section 14 of the Act of 1862 and maintained him there, ought not to have done so, and could not recover from the parish of settlement. In Melrose v. Hawick (1912 S.C. 1029), a parish which had paid asylum maintenance for a woman lunatic brought an action of relief against the parish of settlement. The husband of the woman paid for some time by arrangement with the parish, and then refused on the ground that he was only earning 30s. per week. The Sheriff assoilzied the defenders on the ground that the woman was not a proper object of relief, according to the husband's means (the Court of Session decision turned, not upon the merits, but on the competency of the appeal, which was negatived). In other cases, according to their means, it has been held just that relatives should pay part of the maintenance, and the parish primarily liable the balance; and that where this was done the relieving parish were entitled to recover their part of the expenditure from the parish of settlement (Falkirk v. Pitsligo (Local Government Board Arbitration), P.L.M. 1909, p. 169; Sorn v. Mauchline (Local Government Board Arbitration), P.L.M. 1919, p. 217). Where this is so the lunatic is a pauper lunatic in terms of the definition in the Act of 1862. Great care should be exercised by an inspector of poor before he takes action under section 14 of the Act of 1862. If the person sent to the asylum is not clearly a proper object of relief, he should get an undertaking from the relatives to relieve the parish in whole or in part (Melrose v. Hawick (supra); Muiravonside v. Turner (Sheriff Court), P.L.M. 1910, p. 114). Where the relatives liable are several of a family, e.g. two or more sons, it should be noted that proceedings may be taken against any one member, who cannot plead that the others should also have been called (Rutherglen v. Dick (Sheriff Court), P.L.M. 1917, p. 16; Duncan v. Duncan (Court of Session), 1882, 19 S.L.R. 696; P.L.M. 1882, p. 412). Again, cases may arise where the liable relative (e.g. father or mother) has died but has advocate to follow sik puir creatures causes. The appointment is not now, of course, made in this manner, nor (ostensibly) from the statutory motive. It might surprise the draftsmen of the statute to know that the term as it has after four centuries, to include both sexes. The statute continues, "Gif sik causes be obtained, the wranger sal assyith baith the partie skaithed, and the advocatis coastes and travel." Occupants of the office may be cautioned not to expect too much from this, as in most of these cases, which are chiefly of the consistorial variety, both parties are "poor." At one time a salary of £10 per annum (presumably Scots) was attached to the office (A.S., 2nd March 1534), but seems, regrettably, to have lapsed. It might have been a graceful act on the part of the late Government to subvent those who give their services to the poor and the oppressed, but the opportunity has been allowed to pass. left some estate. In Pearson v. Steedman ((Court of Session), P.L.M. 1886, p. 192), a father had paid for his lunatic son for some time, but afterwards (1864) refused. The son died in 1884, and the father in 1885. It was discovered that the father had left some estate,leill and wise advocate" would ever come, and the parish raised an action against his trustees. It was proved that the father had been able during his lifetime to contribute one-third of the expense of maintenance of the lunatic son, and the parish were held entitled to recover that amount. Dick v. Manson (1895, 33 S.L.R. 360; P.L.M. 1896, p. 130) is to a similar effect, it being observed that the right of the parish to recover was limited to the years during which the relative was proved to have been in a position to support the pauper. In Edinburgh v. A and Others ((Sheriff Court), P.L.M. 1919, p. 240), the principle was carried further, and it was observed that although the amount already expended in supporting the lunatic son exceeded his interest in his father's estate, the son's right was to aliment, and was therefore a debt due by the father, so that if the son's legal or conventional provisions proved insufficient, the claim must be met out of the estate by those who were lucrati by the succession. An apparently contrary, but actually reconcileable, decision was recently arrived at in the Court of Session in Edinburgh v. Couper (P.L.M. 1924, p. 41). There the father of a pauper lunatic left a small estate, which fell on the father's death intestate to be divided between the pauper and her brother. The question was whether the executor was entitled to distribute the estate or obliged to hold it against a possible claim for the pauper when the latter's share should have become exhausted. It was held (following Howard's Exr. v. Howard, 21 R. 787) that the executor was entitled to distribute. The distinction between this and the last case is, we think, that between liability for past maintenance, which was the claim in that case, and liability for possible future maintenance. NOTES FROM PARLIAMENT HOUSE. It may interest those who were recently appointed to act as counsel for the poor in the current year to know that their office is one of greater antiquity than the Faculty of Advocates itself. The Act of 1424, cap. 45, anent complaintes to be decided before the Judge Ordinar," provides that "gif there bee onie puir creature, for fault of cunning or dispensis, that cannot, nor may not follow his cause, the King, for the love of God, sall ordain the judge, before whom the cause suld be determined, to purwey and get a leill and a wise In the last instalment of these notes there was an unfortunate but obvious misprint. The subject treated was juries, and a contrast was made between our practice and that of England in regard to the payment of jurors. This word was printed as "juniors," and a reference was made to their remuneration of 10s. a day. In case any innuendo should be read into this statement, it is desirable to make it quite clear that "jurors was the word intended. Even standing by itself, the sentence regards payment, juniors seem to be worse off in England than they are here " carries patent self-contradiction on its face. In Scotland, so far as is known, we have never had any equivalent of the celebrated Irish counsel who, when charged with unprofessional conduct in accepting a fee of some shillings from a poor client, retorted : I took all the poor devil had, and surely you can't call that unprofessional conduct." as Unless more erudite than the present writer, 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 steeple." The origin of this phrase, now used to indicate a non sequitur, appears to have been that a member of a commission sent to Kent to ascertain the cause of the Goodwin Sands took the opinion of the oldest inhabitants. One said he believed that Tenterden steeple was the cause. This sounded illogical, but the fact apparently was that the Bishop of Rochester applied to the building of Tenterden steeple revenues intended to keep clean the harbour of Sandwich. So the oldest inhabitant was really following a chain of logical reasoning worthy of Darwin when he demonstrated that a number of cats in a neighbourhood ensured a good supply of clover. 66 66 have not much experience, I am sure I can do Congress is to meet in London, and the best possible methods of dealing with prisoners are to be fully canvassed. These facts, and the interest taken at large by the community in all such problems as reformation of the criminal, might have astonished Sir Walter Scott, who wrote in his journal nearly a hundred years ago: The philanthropy of Howard seems to have risen to a pitch of insanity." After referring to the prisons of forty or fifty years before as "dungeons," he goes on: "I do not see the propriety of making them dandy places of detention. They should be a place of punishment, and that can hardly be if men are lodged better, and fed better, than when they are at large. Dr Johnson more than once gave his opinion on the question of a lawyer's soliciting employment, and stated that he himself would not do so, not because I should think it wrong, but because I should disdain it." On another occasion, however, he admitted that he "would "would not have a lawyer to be wanting to himself in using fair means. I would have him to 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 committee on Professional Ethics." Question -May I know whether in the opinion of your committee it would be unprofessional for the counsel of an association to send out letters to a number of its members suggesting employment upon an annual retainer? Answer In the opinion of the committee it is desirable that such solicitation of business should be discouraged; the committee deems it unprofessional.' The second query is even more startling. Question-Is it the opinion of the committee that members of the Bar should not resort to the solicitation of business by means of a communication in the following form? 'Gentlemen: I would like to submit a proposition to take care of all your legal matters under a yearly contract at less than your collections alone now cost, in order to make a client of you. My method is now being used by many large reputable firms and corporations in this city, to whom I will be pleased to refer you. I shall be pleased to call upon you and explain in detail.-Very truly yours, A. B. C.' Answer-In the opinion of this committee such solicitation of business is improper." The answers are, of course, all that could be desired; but as to the questions, if one may paraphrase the aforesaid Dr Johnson, speaking on another topic, "the wonder is not that the questions are thus answered, but that they are asked at all.' This kind of thing opens up a pleasing vista of what might be, if more business-like methods were adopted by members of the profession. An aspiring advocate might write as follows: "To the X.Y.Z. Railway Co. Dear Sirs, I notice from the papers that you seem to be involved in a good deal of litigation. I shall be pleased to do your junior work in the forthcoming session for an inclusive fee of fifty guineas, which I am sure you will find an economy. I should, of course, require a bonus for any appearances in London. Although I As to reformation, I have no great belief in it where the ordinary class of culprits, who are vicious from ignorance or habit, are subjects of the experiment." He goes on in a vein which is striking if the reader reflects how small the population of Scotland was in Sir Walter's day. The state of society now leads so much to great accumulations of humanity, that we cannot wonder if it ferment and reek like a compost dunghill. Nature intended that population should be diffused over the soil in proportion to its extent. We have accumulated in huge cities and smothering manufactories the numbers which shall be spread over the face of a country; and what wonder that they should be corrupted? . . . . A great deal, I think, might be done by executing the punishment of death, without a chance of escape, in all cases to which it should be found properly applicable; of course, these occasions being diminished to one out of twenty to which capital punishment is now assigned. Here is a strange mixture of the Tory and the reformer; or perhaps it is not as strange after all. MESSRS KING, SONS & PATERSON, solicitors, Kilwinning, have assumed Mr John Paterson as a partner of the firm. |