Page images

sheriffdoms. It appears to us that the various societies interested should have the matter brought up and determined so that the practice might be made uniform.



Section 12 of the Sheriff Courts (Scotland) Act, 1870 (33 & 34 Vict. cap. 86) reads as follows:

Union of counties to be complete as regards jurisdiction, etc., of Sheriff, and powers, privileges, etc., of Procurators.-Every union of counties into one sheriffdom under the provisions of this and the recited Act, or either of them, shall be deemed to be a complete union to all intents and purposes in so far as regards the jurisdiction, powers, and duties of the sheriff and his substitutes, and in so far as regards the powers, duties, rights, and privileges of procurators before the courts of the sheriff. And the several counties of any such united sheriffdom shall not thereafter be regarded as separate sheriffdoms or jurisdictions, but as one sheriffdom and jurisdiction, in so far as regards the powers, duties, rights, and privileges of the sheriff and his substitutes, and the procurators of the sheriff's court.

Doubts have arisen from time to time in regard to the necessity for law agents signing the roll of each county of a Sheriffdom. The latest case has been raised by Mr Andrew Galloway, 7 Bridgegate, Glasgow, in connection with the Sheriffdom of Dumfries. From correspondence published recently in the "Glasgow Herald," it appears that the Sheriff-Clerk of Dumfries takes the view that agents practising in a Sheriffdom must enrol in each county in which they desire to practise. In this view the Sheriff-Clerk at Dumfries is supported by several Sheriffs-Principal, including Sheriffs Morton, Fleming, Chisholm, and Macphail.

With all deference to the opinions of these learned Sheriffs, we are inclined to support the opposite view as practised in the Sheriffdom of the Lothians and Peebles. The above section of the 1870 Act seems quite clear, and to constitute a charter under which the several counties are combined as one Sheriffdom, in so far as regards the powers, duties, rights, and privileges of the procurators of the Sheriff's


[ocr errors]

The case first arose in the Lothians at least thirty years ago, when Sheriff Crichton was Sheriff-Principal of the Sheriffdom. The late Mr James Drummond, W.S., who was enrolled in the roll kept in Edinburgh, had appeared in the Court at Linlithgow, and objection was taken to him doing so on the ground that he had not enrolled in Linlithgowshire. Mr Drummond claimed that his enrolment in Edinburgh was sufficient to entitle him to practise in all

the counties of the Sheriffdom without further enrolment in any of them. He brought the matter to the notice of Sheriff Crichton, who considered the question fully, it is understood, on the basis of the 1870 Act, and decided that Mr Drummond's contention was correct.

This settled the practice, and for many years after that, and up till the present time, agents enrolled in Haddington, Linlithgow, or Peebles have been allowed to practise in Edinburgh, without enrolment in Edinburgh. This was so, notwithstanding the terms of the Act of Sederunt anent fees payable to the SheriffClerk, which, inter alia, provided "Enrolment of law agent, each county, 5s."

The question again came up in 1915, probably mainly on account of the terms of this Act of Sederunt, which rather seemed to provide that a law agent had to enrol in each county notwithstanding that he might be enrolled in another county which was part of the same Sheriffdom. On this occasion a Writer to the Signet in Edinburgh, who was enrolled as a law agent in the roll kept in Edinburgh, appeared in the Court at Haddington, when objection was taken to his doing so on the ground that he had not enrolled in the roll kept at Haddington and paid 5s. there. He, like Mr Drummond, claimed that his enrolment in Edinburgh and his payment of 5s. there was sufficient to entitle him to appear in any Court of the Sheriffdom without further enrolment or payment. The matter was brought before the notice of Sheriff Maconochie, and was fully considered by him in the light of the Acts and Act of Sederunt, and before giving his ruling on the matter it is understood he had the benefit of a consultation with the then Lord President of the Court of Session. As a result he issued instructions to all the Sheriff-Clerks in the Sheriffdom that if an agent was enrolled in one county and had paid his 5s. there, it was unnecessary for him to enrol in any other county of the Sheriffdom and pay another 5s.

We are inclined to think that the expression in the Act of Sederunt anent Table of Fees, "each county, 5s.," was a mistake, and ought to read "each Sheriffdom," but in any event this provision cannot be read as displacing or repealing the effect of what is tantamount to a charter in section 12 of the Act of 1870.

Whatever the correct interpretation of the matter, it is hoped that steps will be taken to have it adjusted by Act of Sederunt, so that the practice in the various Sheriffdoms may be uniform.

[ocr errors][merged small]


By W. G. M. DOBIE, LL.B.

If the shade of Bailie Macwheeble received several rude shocks between 1845 and 1874 it is suffering torture now. The 1924 Conveyancing Act has made havoc with our forms, and we may be forgiven if we feel that, for example, the discharge in ten lines of a heritable security for £20,000 is akin to sacrilege. When the novelty has passed, however, it is unlikely that any practitioner will regret the change.

Suggestions have been made that the legislature might usefully perform a like service in regard to agricultural leases. There are serious difficulties to be faced. Possibly in no other branch of legal draftsmanship are forms of so little service. Circumstances of the letting of each farm and peculiarities in the subjects themselves render dangerous the use even of those general conditions applicable to entire estates and adopted as part of the lease of each individual holding thereon. Greater still would be the difficulty and danger of adapting a short statutory form of lease (such as was tried with little success in the Leases Act, 1845, applicable to England) to suit individual requirements.

Indirectly, however, the legislature has already. supplied the machinery whereby we may curtail very considerably those cumbrous farm leases with which we are all familiar. In many important respects the relationship of landlord and tenant is fixed by the Agricultural Holdings Acts; so much so, that a solicitor of wide experience recently stated to the writer that he requires nothing more in a lease than the names of the parties, the subjects, the entry, the duration, and the rent. Few practitioners, perhaps, are sufficiently bold to adopt that course but should any do so it is unlikely that their clients will be, at the end of the tenancy, in any other position than if they had signed the customary rigmarole of twelve or fifteen sheets. Certainly that bare skeleton of a lease, supplemented by a record of the holding made under section 37 of the 1923 Agricultural Holdings (Scotland) Act, would be in a majority of cases infinitely preferable to a full-dress lease without the record.

While refusing to confine our labours of draftsmanship to half a sheet of notepaper, might we not advantageously cut out a great deal of lumber? The following suggestions, tentatively thrown out, are based on the letting of an arable farm in the south of Scotland, and are not, of course, applicable to all districts or all conditions.

The general form adopted is that of the minute of lease, with numbered clauses; a

form which lends itself to pithy expression and easy reference. The introduction or title will read, "Minute of Lease between A. B. of C. (he and his successors, proprietors of the farm hereby let, being hereinafter referred to as 'the proprietor) and G. H., farmer, residing at (he and his successors in this lease being hereinafter referred to as the tenant ')."

(1) Destination, Subjects, etc.-The first clause deals with the destination, the subjects, the duration of the lease, and the entry, in such terms as these: "The proprietor hereby lets to the tenant and his heirs, excluding assignees legal or conventional, creditors or managers for their behoof, and heirs-portioners, the eldest heir female succeeding without division, All and Whole the farm of X, in the parish of Y, and county of Z, and that for the space of fourteen years from Whitsunday 1925, as to the houses, steading, and all land except that under white crop, and from the separation of the 1925 white crop as to land under that crop."

(2) Rent. The second paragraph deals briefly with rent, the terms at which payable, and the period of possession to which it has reference, and with the repayment by the tenant (if such is the agreement) of a proportion of each annual fire insurance premium.

(3) Reservations.-The customary lease now plunges into pages of detail as to reservations by the proprietor, and it is submitted that these are in general unnecessary. The land is being let for agricultural purposes. Ob majorem cautelam the lease may contain a statement to that effect. It follows that minerals, woods, and game, with necessary accesses and accommodations, are reserved ex lege. If it is reasonably anticipated that part of the farm may be required for planting, building, or like purposes during the currency of the lease, power to resume for such purposes should be reserved; but it is in any case unnecessary to provide means of ascertaining the reduction in rent to be allowed in the event of the resumption being made (section 31 of the 1923 Act). A landlord may, of course, resume part of a holding from a tenant from year to year for certain purposes, although the lease on which the tenancy is based contained no such provision (section 30 of the 1923 Act). (4) Management. The fourth clause (the third if we cut out reservations entirely) deals with management and cropping. Here the landlord is very much at the mercy of the Agricultural Holdings Act and of the tenant. The minute degree of freedom of contract that remains renders it the easier to shorten this clause. A tenant is at common law bound to cultivate in accordance with the rules of good husbandry; but this is usually expressed. A rotation should be specified, and the tenant should be taken bound to sell or remove no


[ocr errors]

dung, hay, straw, or roots or as the case may be; for, in spite of the freedom of cropping and of disposal of produce conferred by section 35 of the 1923 Act, such provisions in the lease must be read with sections 1 (2) (b) and 35, (1) (a) and (b). A tenant customarily accepts the subjects as in good and tenantable repair, and binds himself to leave them in like good and tenantable repair, fair tear and wear excepted. This provision, of little value in itself, should be supplemented by a record of the condition of the holding made under section 37 of the 1923 Act at or soon after the tenant's entry. Expense saved by curtailing the lease will go far to meet the cost of a record, and the value of a record may be enormous.

The management clause may also contain an agreement; in virtue of section 3 (4) of the 1923 Act, as to the terms on which drainage improvements are to be executed-e.g. that the landlord will provide the drain-tiles, the tenant the labour; that the landlord will charge no interest on his outlay, in consideration of which the tenant will receive no compensation at waygoing. Further, the tenant may usefully be taken bound to perform, gratis, all carting required in connection with repairs or improvements during his tenancy.

(5) Ingoing.-Provisions ruling the tenant's ingoing vary considerably with districts and with circumstances. For instance, the tenant may have right of access to work the fallow land after Candlemas, and right to sow grass and clover seeds with the waygoing tenant's white crop, the latter being bound by his lease to harrow and roll gratuitously. The tenant will further oblige himself to pay the waygoing tenant for his labour in ploughing the fallow and for the seeds sown with his penultimate white crop, and to buy the waygoing white crop and the dung at valuation. If the landlord meets the waygoing tenant's claim for unexhausted manures and feeding stuffs, he may consider it advisable to contract with the incoming tenant, who will enjoy the whole benefit of these improvements, that the compensation paid to the waygoing tenant will be deducted from any compensation for improvements due to the incoming tenant when his tenancy comes to an end (Buchanan v. Taylor, 1916 S.C. 129).

(6) Waygoing. The clause regulating the tenant's waygoing may be curtailed if section 36 of the 1923 Act is borne in mind. When notice to terminate a tenancy has been given by either party, the tenant may not sell or remove from the holding any manure or compost, or any hay or straw or roots grown in the last year of the tenancy, till he has given the landlord or incoming tenant an opportunity of agreeing to purchase. He need no longer

be taken bound in his lease to sell these to his successor. But he should still be bound to hain after the harvest before removal the seeds sown with his penultimate white crop; to plough the fallow once during the autumn or winter before his waygoing; to allow his successor to have access to work the fallow after Candlemas; to harrow and roll gratuitously the grass and clover seeds to be supplied and sown by his successor with the waygoing white crop; or otherwise as the custom of the district or the circumstances of the case may demand. (7) Bankruptcy of Tenant.-It is useful to supplement section 12 (1) (d) and section 25 of the 1923 Act with provision for an immediate irritancy, enforceable in the landlord's option, with power to the landlord to resume and relet, in the event of the tenant's bankruptcy.

A minute of lease on these lines may be compressed into a few regulation sheets, and in the matter of clearness and easy reference it gains by the compression. When read along with the provisions of the Agricultural Holdings Act, it contains-it is submitted-all that is necessary; and when supplemented by a record of the holding made at or soon after the tenant's entry, it is more conducive to amicable working and to a peaceful waygoing "when the long trick's over than would have been the case had it been spun out to the many weary pages with which we are all too familiar.

[ocr errors]

THE University Court of the University of Edinburgh have received with much regret an intimation from Professor J. Hepburn Millar, M.A., LL.D., Professor of Constitutional Law and Constitutional History, of his intention to resign his Chair as from the end of the academical year on grounds of ill-health.

A native of Edinburgh, Professor Hepburn Millar is a son of the late Lord Craighill. He was educated at Edinburgh Academy, where he was dux of the school in 1881, and at Balliol College, Oxford, where he took first-class honours in Classical Moderations and first-class honours in Literæ Humaniores. He thereafter studied law at Edinburgh University, where he graduated as LL.B. (with distinction). He passed advocate, and was called to the Bar in 1889. Mr Hepburn Millar is the author of a work on the "Law of Prescription." He has written the "Mid-Eighteenth Century," a short history of European literature from 1714 to 1778, and he is widely known as the author of "A Literary History of Scotland." Mr Hepburn Millar was appointed Professor of Constitutional Law and Constitutional History in 1909.


By the death, which occurred on the 2nd inst., after a few weeks illness, of Mr R. Addison Smith, senior partner of the firm, R. Addison Smith & Co., W.S., the legal profession loses one of its most distinguished and most honoured members.

For fully half a century Mr Addison Smith occupied an eminent place in legal and political circles. His indefatigable activities on behalf of the Scottish Conservative Party are familiar to most Scotsmen, and his intimate association in the founding of the Scottish Conservative Club,

of which he was an original member, followed by a long active career, first as secretary and

latterly as member of its General Committee and as chairman, were fully recognised and valued by all the members of that flourishing institution. It was as a slight token of their

ment (Scotland) Bills of 1889 and 1894 and of the Private Legislation (Scotland) Bill, 1899, Mr Addison Smith was a keen protagonist. These, and his services to the late Duke of Buccleuch, then Lord Dalkeith, during his electoral campaign are well known. His work as a lawyer and a business man are equally widely known and appreciated. Law Agent for the Edinburgh Parish Council, the Board of Control, and Registrar of Friendly Societies, he had also a very large private practice which

high esteem that the members engaged Sir | during his earlier career.
George Reid to paint Mr Addison Smith's
portrait in oils for an honoured place on the
walls of the Club. Another portrait was pre-
sented to Mrs Addison Smith.

Along with other Scottish Conservatives Mr Addison Smith took a prominent part in the meetings which led to the introduction of Lord Rosebery's Bill for the restoration of the ancient office of Secretary for Scotland, which had been in abeyance since 1725 (with the exception of the nominal secretaryship held in 1731 and 1745), and which was in consequence restored in 1885.

For the introduction of the Local Govern

prevented him from accepting the office of Crown Agent, which was offered him by Lord Advocate Clyde.

On the Council of the Society of Solicitors in the Supreme Courts Mr Addison Smith rendered good service, and the handsome library of that body owes to his generosity the valuable eightday clock, which he presented on retiring from the office of Fiscal. The Presidentship of that Society he declined, as did several other honours,



Everything that tended to the promotion of the public welfare found in Mr Addison Smith a strong and constant supporter, eloquent testimony of which is found in his tenure of office as Representative of the S.S.C. Society on the Board of Management of the Royal Edinburgh Infirmary, and as treasurer of the Queen Victoria School for the Sons of Soldiers at Dunblane.

Mr Addison Smith was a staunch member of the Church of Scotland, and for many years was an elder of St Giles and a conspicuous figure in the debates of the General Assembly.

He twice declined the offer of a knighthood,

[blocks in formation]
[ocr errors]

While the founder of the Legal Dispensary took care that the institution should afford advice on points of law, free of charge to persons unable to pay for advice, there was more in his mind than that. As the price motive of the Tuberculosis Dispensary had been the prevention of tuberculosis in a wide sense, and the treatment of individual cases was largely incidental, so the leading purpose of the Legal Dispensary was the prevention (or limitation) of hardships-legal and illegal-by considerate study of the circumstances and sympathetic attempt at amicable settlement.

"Mr Coldstream consulted me frequently as to his purpose and was clear regarding the analogy he wished to follow. His object was clarification and adjustment of claims on simple, strong lines, in order that, as far as possible, litigation might be obviated. His ideal was largely preventive. The report shews how thoroughly the founder's purpose is being realised.”

Mr Joseph Chalmers, S.S.C., secretary and treasurer, laid on the table the twenty-fifth annual report.

The chairman traced the history of the growth of the dispensary and referred to various features of the report. He remarked that special thanks were due to the young lawyers who attended at the dispensary, and again emphasised that the dispensary did not encourage litigation.

The chairman moved the first resolution : "That the report be held as read, approved of, and circulated."

Lord Sands, in seconding, said that they had heard a great deal recently of the influence of the mind over bodily health, and he thought that while the mind had a power exercising a recuperative influence over bodily health, so the mind if it was in an unsatisfactory and distressful state was a serious obstacle to the maintenance and recovery of bodily health. But apart from that consideration there was no doubt that mental worries and anxieties cause severe suffering and distress, and relief of mental worry, anxiety, and distress was just as much a field of beneficence as the relief of bodily suffering. Accordingly, in the dispensary they were not merely doing something for the general social improvement of the community-and much excellent work was done in that direction -but they were doing work that was truly charitable, truly beneficent, and truly bringing comfort to the distressed and suffering.

The resolution was put to the meeting and was carried unanimously.

[ocr errors]

The Rev. Canon Geoffrey Gordon moved the second resolution : That this meeting expressed its admiration of and sympathy with the work of the Edinburgh Legal Dispensary.' He referred to his experience as a barrister in connection with the Poor Man's Lawyer

Department of the Cambridge University Settlement, London, and remarked that it was a feature there as well as at the Legal Dispensary that litigation was discouraged.

Baillie Couston, in seconding this resolution, said that if ever a body deserved the motto Service not Self " it was this institution. He

[ocr errors]

made special reference to the services of the Defensor in the Police Court.

The resolution was unanimously adopted.

Sheriff Jameson moved the third resolution: "That William C. Johnston, Esq., D.K.S., the Rev. Canon Geoffrey Gordon, and Thomas Liddle, Esq., S.S.C., be appointed vice-presidents of the institution; that the directors who retire by rotation, Messrs A. B. Noble, W.S., Henry H. Brown, Procurator-Fiscal, and E. all the other directors and office-bearers be Denholm Young, W.S., be re-elected; and that reappointed."

This resolution was seconded by Mr Alexander Robb, manager of the Commercial Bank of Scotland Ltd., and was passed unanimously.

Mr W. T. Ketchen, W.S., moved a hearty vote of thanks to the chairman, and Sir George M. Paul having replied, the meeting terminated.

The report reads as follows:

The directors have pleasure in submitting their twenty-fifth annual report.

The dispensary held its first sederunt on 27th February 1900, and attains its semi-jubilee this year. It was founded by the late Mr John P. Cold

« PreviousContinue »