Page images

complement of these agents. The dispensary exists for the purpose of advising poor persons who are unable to pay for legal advice, and by doing everything short of legal proceedings to secure their rights or effect settlements. The agents for the poor, on the other hand, are appointed for the express purpose of conducting litigation, and have not the time to undertake the work performed by the dispensary lawyers, even if they were prepared to do so. Great care is taken that the privileges of the dispensary are not abused, and that advice is only given to those who are unable to pay for it. Except in exceptional circumstances advice is refused where the applicant is in receipt of more than £3 per week.

stream, W.S., on the analogy of medical dispensaries. He was aware that, just as the poor required medical advice without having the means to pay for it, so might they also require legal advice. While institutions with a similar object in view had been in existence for many years in New York and in many of the more important cities on the Continent, and while legal advice had been given gratuitously to poor persons in connection with various settlements in London, Glasgow, and elsewhere, the Legal Dispensary was the first institution in Scotland to be founded for the express purpose of giving legal advice free of charge to persons unable to pay for it. During the twenty-five years of its existence 37,645 consultations have been held and 23,760 clients have been advised. The following table shews the progress of the In the course of the first year the number of con- dispensary every fifth year, and gives the total sultations was 274 and of clients 206, with an number of consultations and clients since the disaverage of 5.48 per night. Last year the consulta-pensary was founded in 1900. tions numbered 2343, and clients 1405, with an average per night of 45.94. These numbers were the largest in the history of the dispensary, and are ample proof of the necessity for such an institution. The previous record so far as numbers are concerned was for the year 1922-23, when the figures were 2130 consultations and 1365 clients, with an average per night of 42.60. The largest attendance on a single night was 61. This was exceeded in 1922-23, when the largest attendance was 69.



Year. 1900-01



per Night.













[merged small][merged small][merged small][ocr errors]
[blocks in formation]

The dispensary holds its sederunts in the Canongate Tolbooth, on Tuesday evenings from 7.15 to Total since opening, 9.15. These are the nominal hours, but it is frequently much later before the advising lawyers can overtake the cases for the evening. The clients wait their turn in the hall of the institute, and as they are accompanied by friends in many cases, there is usually a large gathering. As the clients arrive they are handed slips by the caretaker numbered consecutively, on which they write their name, address, and wage. When the dispensary was formed there was only one consulting room. 1908 a second consulting room was opened, and at the beginning of November 1923 it was found necessary to open a third consulting room. In each consulting room there is in attendance one of the advising lawyers, who are detailed for duty for one month at a time. The clients are advised by the lawyers in the order of their slips. The lawyer enters the nature of the case and what is to be done in a register of cases which he has before him, and if the client is told to call back he is handed a card which he brings with him on his subsequent visits. If legal proceedings are necessary the case is remitted to one of the officially appointed agents for the poor. At the conclusion of his spell of duty, the lawyer forwards the slips to the secretary, who enters the particulars of each in a register kept by him.

It cannot be too strongly emphasised that the dispensary does not encourage litigation. Every endeavour is made to effect amicable settlements, and it is only where legal proceedings are necessary that the cases are remitted to the officially appointed agents for the poor. During the year 210 cases were so remitted for further proceedings. In terms of its constitution the lawyers in attendance cannot conduct litigation. As mentioned in previous reports, the dispensary in no way encroaches on the province of the agents for the poor, but is really the

413 1


[merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small]

Of whom 93 were husbands and 320 wives.

As in former years the advising staff have conducted a large correspondence, and have held numerous outside interviews.

In the course of the year the secretary asnwered enquiries regarding the working of the dispensary from the Faculty of Procurators in Paisley, the Law Reform Association, London, the Fabian Society, London, and the Bombay Legal Aid Society. He also attended a meeting of the District Committee Members and Workers of the City of Edinburgh Council of Social Service and explained as to the provision made in Scotland for giving legal assistance to poor persons, and gave an account of the work done by the dispensary.

An appreciative leading article on the dispensary appeared in the Glasgow Herald on 2nd May

[merged small][ocr errors]

1924. The work done by the dispensary and the Defensor in the Police Court was referred to in terms of the highest commendation, and it was suggested that, while in Glasgow the establishment of a Legal Dispensary, discharging all the functions undertaken by the lawyers of Edinburgh, would prove a herculean task, it certainly appeared that some methods should be devised whereby the poor and needy, appearing before inferior Criminal Courts, should have the benefit of professional advice.

As mentioned in last year's report, proposals were being considered with a view to improving the system of giving legal assistance to poor persons in England. The Poor Persons Rules Committee, of which Mr Justice Lawrence was chairman, and which enquired into the difficulties in the working of the Poor Persons Rules, issued its report within the last few days, and recommended a new scheme for assisting poor persons to pursue their civil remedies in the High Court or to defend actions brought against them. The report advocated that the Poor Persons Department be abolished and all work taken over by the profession as a whole, free from any official control-the work to be done under the supervision of the Law Society and Provincial Law Societies, by committees to be appointed by those societies and approved by the Lord Chancellor, the committees to nominate the conducting solicitor and to exercise a general supervision over the conduct of the proceedings. The report advocated a grant of not less than £3000 per annum by the Government in aid of administration expenses.

The lawyers who attended the dispensary during the past year are cordially thanked for their services. Messrs D. G. Fraser, B.L., solicitor, and R. H. S. Calver, LL.B., advocate, have resigned, and Messrs A. A. Buist, W.S., J. N. Hay Brown, solicitor, D. W. Brydie, solicitor, J. R. Hendry, solicitor, H. M'Dougall, solicitor, and A. F. Macpherson, solicitor, were appointed advising lawyers. Messrs John Baird, solicitor, Allan J. Grierson, M.A., LL.B., R. C. Jack, solicitor, D. G. M'Gregor, W.S., John G. Mitchell, solicitor, R. C. Notman, W.S., and Robert Martin, W.S., have been elected life members. Since the dispensary was founded seventy lawyers have given their services and have benefited from the experience gained in their profession.

The directors record their deep regret at the deaths of Sir John M. Clark, Bart., and the Rev. Canon Cowley Brown. Sir John M. Clark was a director of the dispensary from its inception until 1910, when he resigned and was appointed one of the vicepresidents. Canon Cowley Brown was one of the original vice-presidents of the dispensary.

The Defensor in the Police Court has appeared in 319 cases during the year. His services continue to be of great assistance to accused persons, and are highly valued by the Bench. The following is a table of the various cases in which the Defensor has appeared during the year:

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small][merged small]

An abstract of the accounts for the past year is appended to the report. From this it will be seen that the balance in hand has considerably increased. The sum collected in the donation boxes is larger than in any former year. It is very satisfactory that the clients shew their appreciation of the services rendered to them in this practical way. During recent years many generous supporters of the dispensary have died, and the directors are anxious that the subscriptions should be maintained, and if possible increased, to provide for the extension of the work in the future. It is hoped that in time the dispensary may be able to secure suitable premises of its own.

Mr H. E. Richardson, W.S., is again cordially thanked for the gift of periodicals for the dispensary waiting-room.

Here follows the abstract accounts of the intromissions of the treasurer of the Edinburgh Legal Dispensary from 29th February 1924 to 28th February 1925.



Bachelor of Laws.

Donald Geddes, B.A. (Oxon).; C. W. G. Guest, B.A., LL.B. (Cantab).

Vans Dunlop Scholarship in the Law of Nature and Nations, Civil Law, and Constitutional Law and History-Henry Wallace Guthrie, M.A. prox acces. ; David Blyth Bogle, M.A.


The following is the list of the Law Degree Examination passes. One asterisk indicates that the candidate has completed the examinations necessary for the degree, and two asterisks indicate completion with distinction :

LL.B.Rachel M. Barclay (M.D.), Forensic Medicine and Evidence and Procedure; Charles S. Findlay, Constitutional Law and History and Mercantile Law; Janet S. Gordon, Scots Law and International Private Law; Christopher William Graham Guest; Richard T. Innes, Scots Law and Evidence and Procedure; William A. Keay, Civil Law and Forensic Medicine; Abdul Q. A. Khan, Administrative Law and Forensic Medicine; Thomas J. Mullan, Forensic Medicine and Evidence and Procedure; Charles J. Paterson, Public International Law and Constitutional Law and History; Andrew Rankin, Public International Law and Evidence and Procedure; Archibald D. Robertson, General Jurisprudence, Public International Law, and Civil Law; Robert A. Sneddon, Public International Law and Scots Law; Charles M. Young, Public International Law and Forensic Medicine; James B. M. Young, General Jurisprudence, Forensic Medicine, and Evidence and Procedure.

B.L.-George M. Bryson, Scots Law and Forensic Medicine; Donald C. Coutts, Public International

[blocks in formation]
[ocr errors]
[ocr errors]

II. Lord Dunedin has introduced into the House of Lords the Law Agents (Scotland) Bill, for the purpose of dealing with applications to strike the name of a law agent off the register, and with complaints against a law agent for misconduct, by instituting a committee to be known as the Solicitor's Discipline (Scotland) Committee (hereinafter referred to as "the Committee "), and consisting of not less than four and not more than seven law agents representative of the profession throughout Scotland, to be appointed by the Lord President, who may from time to time remove any member from the Committee or fill any vacancy in the Committee.

THE King has been pleased on the recommendation of the Secretary for Scotland to approve the appointment of Mr George Donald Valentine, advocate, presently Sheriff-Substitute of Inverness, Elgin, and Nairn, at Portree, to be Sheriff-Substitute of Dumfries and Galloway at Newton-Stewart, in place of Mr George Watson, resigned.

[blocks in formation]

There may be such agreement with the general views of the writer of the article which appeared in the "Scots Law Times" of 21st February 1925 that criticism or suggestion. It is indisputable that the no one has responded to the editor's invitation of two great defects of the present system are expense and delay, and that expense is the lesser. Nevertheless, it is thought that the article does not disclose the real cause of the trouble, and does not indicate the remedies which are really needed.

In the article it is stated that the Court has already power to apply a remedy by Act of Sederunt. This whole profession recognises that something more may be so, but any such course is hopeless. The drastic is required.

Our present judges are respected by everybody, and the public regard their ability and attainments as at least equal to those of their predecessors, if not superior to those of any other Court in the world. Yet the Court of Session does not enjoy the confidence of the public, and naturally the judges are the last people to realise the causes of their own unpopularity. It is therefore impossible for them to apply the appropriate remedy.

The fact is that the judges seem to be out of touch with the realities of present-day life, and in particular with commercial realities. They are all members of the Faculty of Advocates, and while their training may have included an experience of a year or two in a solicitor's office, they have only been in contact with commercial life incidentally and occasionally. Mr George Donald Valentine, LL.B., is the The same disqualification applies to a minor extent son of Mr George Valentine, M.B., C.M., of to the members of the Bar. It is accordingly subGirvan, and was born in 1877. He was edu-mitted, with all respect, that neither the judges nor cated at Glasgow University and Trinity College, Cambridge, and became a member of the Scottish Bar in 1903. He was appointed Interim Sheriff-Substitute at Ayr in 1912, at Elgin in 1914, and at Airdrie and Glasgow in The spectacle of a judge of the Supreme Court 1919, and became a Sheriff-Substitute of Inver- calling case after case in his Procedure Roll, and then ness, Elgin, and Nairn for the Isle of Skye and leaving Court for the day, perhaps as early as eleven the Long Island in 1920. Mr Valentine served o'clock, because he cannot get counsel to attend, is as Commissioner under the Military Service not one which the public would tolerate for a moment Civil Liabilities Department from 1916 to 1918. | if they were aware of it. Yet it is said that to make

the advocates alone are well qualified to act as reformers, and that the necessary restoration of public confidence in the Court of Session can only be accomplished by the informed opinion of the general body of the profession.

a shew of work eight cases are sometimes retained in a judge's Procedure Roll from week to week when they could all be rapidly disposed of. The attendance of counsel in the Procedure Roll should be peremptory on at least one day a week before each judge, and the most popular judge would soon be the judge who finished the cases in his Procedure Roll each week. If from any cause a judge should be unable to do this, he could sit on the following Monday for the purpose. It is regarded by the business community as more important that cases involving no disputed facts should be promptly decided than that every decision should be logically correct. Business men would put up with a bad judgment occasionally for the sake of an invariably prompt decision.

Delays in the Inner House could be lessened by the Court sitting earlier in the morning and later in the afternoon. The English Courts sit for exactly five and a half hours per day, viz. from 11 A.M. to 5 P.M., with half an hour's interval from 1.30 till 2 for lunch, on five days a week. Our Courts sit from 10.15 or perhaps 10.30 till at latest 3.30, with about half an hour for lunch, a sitting of at most five hours on four and a half days a week. The February Recess week, whatever its origin, is now useless, and the Spring Vacation is too long. The Inner House might sit (in three Divisions if necessary) in March and April till all cases sent to the Roll before Christmas have been heard, and again in July till all cases sent to the Roll before March have been heard. This would still leave the cases sent to the Roll during the Summer Session standing too long; but if the Christmas Recess and the February week should be insufficient for their disposal, it might be made imperative that an Extra Division should sit from 1st January in each year till they are all heard. Apart from delay, there are two matters which certainly tend to prevent a flow of business to the Court of Session, though the effect of neither of them is readily admitted. (1) It was ruled by a former Lord Advocate that a litigant who had obtained a decree of the Court was not entitled to have the assistance of the executive to enforce it; and parties brought up and imprisoned for breach of an interdict of the Court, have been released by, or at the instigation of, the Government. This course of action has reduced a Court of Session decree to a mere of paper." (2) Judges of the Court of Session are appointed to decide questions of law and incidentally to find the relevant facts, and commercial men generally are willing to take their law from the judges; but even those of the highest honour are not prepared to have their business morality condemned insufficient information, as has sometimes happened, by people (however eminent) who know little of their business.


[ocr errors]


The remedy for excessive expense has not been referred to. The details in which unimportant alterations might effect large economies are too numerous to be dealt with except in a separate letter. If the procedure of the Court is to retain its distinctive features, a reduction of the present expense is essential. Such a reduction can easily

be effected.-I am, yours faithfully,



Signing the Roll of Law Agents in Sheriffdoms.

My attention has just been drawn to a recent decision by Sheriff Menzies on this subject, and I shall attempt to shew that his decision is an erroneous one. It follows an opinion to the same effect given by Sheriff Maconochie in 1915, and is founded on the wording of section 12 of the Sheriffs Act of 1870. The language of that section is admittedly comprehensive, but although it states that the several counties in a sheriffdom regarded as separate sheriffdoms or jurisdictions," it nowhere states that the separate Court then existing for each county or district is to lose its identity as a separate Court; and, indeed, these remain separate units to this day, each with its own officials and After all, the 1870 Act was primarily Court records.

shall not thereafter be

a Sheriffs Act, and we have to look elsewhere for a definition of "the powers, duties, rights, and privileges "of the procurators before the Courts of the Sheriff.

[ocr errors]


[ocr errors]


If we turn to the Procurators (Scotland) Act, 1865, we see from section 1 thereof that the word procurator" shall include "all persons who have already been admitted as procurators in any Sheriff Court in Scotland or who shall hereafter be admitted as procurators under this Act," while section 13 "the sheriff-clerk of each county enacts that shall keep a register to be called the Register of Procurators," in which he shall insert the names of all such persons then in life as may have been duly admitted procurators before the Sheriff Court of such county prior to the passing of this Act. likewise of every person who shall, subsequently to the passing of this Act, be admitted a procurator before such Court." I am, of course, aware this Act was repealed by the Law Agents (Scotland) Act, 1873, but in considering that later Act we may be assisted to some extent by the wording of the earlier statute which is supplanted, keeping in mind that the one was passed before, the other after, the Sheriffs Act of 1870.




Coming now to the 1873 Act it defines enrolled law agent to mean any law agent enrolled pursuant to the provisions of this Act," so it is within the compass of its terms we must find the law agent's privileges defined. Section 4 of the Act requires that "the sheriff-clerk of each county shall prepare and deliver to the Registrar certified lists containing the names and designations of all persons admitted as procurators in the Sheriff Court of the county previous to that date." Section 13 enacts that "A roll of agents practising in any Sheriff Court shall be kept by the sheriff-clerk in such form as the Lord President of the Court of Session may direct, and every enrolled law agent who has paid the Stamp Duty exigible by law on admission to practise as an agent before a Sheriff Court shall be entitled to subscribe the said roll, and the sheriff-clerk shall be paid a fee of five shillings for each subscription." Section 14 gives authority to the Lord President of the Court of Session to make rules relative to the keeping and subscribing of the rolls of agents, while section 16 enacts that "From and after the first day of February Eighteen hundred and seventy-four, no person shall be allowed to practise as an agent in

the Court of Session or any Sheriff Court until he shall have subscribed the roll of agents practising before such Court."

[ocr errors]

Now it is to be noticed that in the Procurators Act of 1865 the very words on which the whole point of this discussion turns any Sheriff Court are there used, and it cannot be contended that at that date they referred to sheriffdom, and further, that it is the sheriff-clerk of each county who is there given definite instructions. If the privileges of agents were supposed to be extended by the Sheriffs Act, why did they not see this made clear in their new Charter obtained three years later? Instead of this being done the same phrases are re-enacted. Note that in section 4 of the 1873 Act the phrases are "the sheriffclerk of each county" and " procurators of the Sheriff Court of the county." Surely we must take it, in the absence of other definition, that the same meaning is intended by the words "the sheriff-clerk,' and " any Sheriff Court" in the subsequent sections of the Act. Indeed, as regards the sheriff-clerk it can mean nothing else, as there is no such official as the sheriff-clerk of a sheriffdom; and, if so, why should the other phrase relative to the Court derive a meaning from some other source? And it must be borne in mind that the sheriff-clerk has a separate Court or Courts to deal with in his own county, that he cannot act in the Courts of the other counties in the sheriffdom, nor can he interfere with the keeping of the rolls of agents, or with any of the Court records in such other counties. Therefore, if sheriffdom was intended by the words any Sheriff Court," as contended by Sheriffs Maconochie and Menzies, who is the sheriff-clerk referred to when there may be at least three within that jurisdiction. If these gentlemen are right in their contention, it would have been an easy matter to have authorised any sheriff-clerk to enroll, giving authority to each to intimate to those in the other counties, where more than one county was embraced in a sheriffdom, when a new name had been added to the roll. But as this is not done we must assume that every, or as the Act says any," Sheriff Court is left intact as regards its roll of law agents in the same way as it still is in other respects with an entirely independent set of officials and Court records.

[ocr errors]


While not deciding the point at issue here as regards counties forming a sheriffdom, the decision of Lord Mackenzie in the case of Kerr (14 S.L.T. 412) is, I think, instructive in shewing that each Court roll should stand by itself.

Sheriff Menzies seems to suggest that the sheriffclerk at Dumbarton may not have been provided with instructions under sections 13 and 14 of the 1873 Act, but he seems to overlook the fact that the Lord President of the Court of Session, by appending his signature to the Act of Sederunt of 22nd February 1922, regulating fees payable in the Sheriff Courts, has given the sheriff-clerk instructions "with respect to the keeping and subscription of the rolls," and the definite instruction is that he is to collect 5s. for subscription of the roll in each county, while the duty laid on the sheriff-clerk as regards all fees is stated as follows: Sheriff-clerks shall be responsible for the collection of all fees specified in the Tables (annexed to the Act of Sederunt), and it shall be their duty to refuse to receive any paper chargeable with a fee. . . . unless the appropriate fee has been |


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

paid, and it shall further be their duty when a fee is declared payable prior to any particular step being taken in a process, and such fee has not been paid by either party, to call the attention of the Sheriff to the matter, and the Sheriff, unless the fee is thereupon paid, shall proceed with the case as if the party by whom the unpaid fee is payable were absent or in default." And note it is subscription of the roll," not the mere payment of 5s. for noting that the party is already enrolled in another county in the sheriffdom. There is here a clear duty laid on the sheriff-clerk, and it cannot be brushed airily aside as is done by Sheriff Maconochie in his letter to the sheriff-clerk at Haddington of 3rd November 1915, and by a writer on p. 78 of your News column, by saying that the Act of Sederunt must be read as if the words each sheriffdom " were substituted for the words each county." It is news to the writer of these notes that even a Sheriff has power to alter plain unambiguous words in an Act of Sederunt to make the context fit in with his views instead of what it clearly says, and one would be glad to know since when the learned Sheriff has authority for doing so. carrying out his views, but surely the proper procedure is to have the Act of Sederunt amended if its terms are erroneous. After all, the sheriff-clerk is answerable to the King's Remembrancer, and not to the Sheriff, in this matter. Further, when the sheriffclerk brings default in payment of any fee to the notice of the Sheriff, the latter as we have seen "shall proceed with the case as if the party by whom the unpaid fee is payable were absent or in default." This is an imperative instruction and not alternative so as to allow him to change the wording of the context and allow the defaulter to escape payment. I think this aspect of the matter has escaped the Sheriff, and that he has failed to note, as has also Sheriff Menzies, that this is the instruction of the Lord President, the only person entitled to regulate the matter, the Sheriff himself having no authority to that end. Not only this, but Sheriff Maconochie's instruction was given under an older Act of Sederunt, and though the Act of Sederunt of 1922 has since been passed, the words "each county still remain notwithstanding his considered opinion to the contrary, and notwithstanding the fact that he would have ample opportunity of pointing out the correction he considered necessary before the Act of Sederunt of 1922 was passed and signed by the Lord President. If the Lord President was consulted by him in 1915, I am afraid his attention must have been confined pretty well to a consideration of the Sheriffs Act, and not to the regulations anent enrolment of agents.

He may "be obliged to the sheriff-clerk for

[ocr errors]

The 1870 Act does not deal with the enrolment of agents, which is the point at issue, and the present writer therefore holds that until the Act of Sederunt of 22nd February 1922, with its definite instructions to Sheriffs and sheriff-clerks, is amended or repealed, both are bound by its terms whatever the correct interpretation of the terms of the 1870 and 1873 Acts may be, and that the opinions of Sheriffs Morton, Fleming, Chisholm, and Macphail must prevail over those of Sheriff Maconochie and Sheriff-Substitute Menzies. This practice has, I think, been recognised everywhere up till now except in the Lothians and Peebles, and what is now to happen in Stirling, Dumbarton, and Clackmannan with the Sheriff holding

« PreviousContinue »