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heritors for the appointment of a common agent in the event of such appointment having been formerly dispensed with).
11. The teind roll shall be retained in the hands of the clerk subject to inspection by any party interested, and shall not be lent or given out to any person whatsoever. But after the Lord Ordinary has made an order for intimation printed copies may be supplied to the common agent for distribution among the heritors, and where there is no common agent to any heritor who applies.
12. The Lord Ordinary shall either hear parties viva voce upon such objections as may be lodged within eighteen months after the order for intimation of the teind roll, and upon any answers that may be made thereto at the Bar; or he may, if he shall see cause, allow all concerned to give in written answers to such objections within such time as he shall think proper to appoint, and shall thereafter proceed, in so far as regards any application for prorogating the time for giving in papers, in the manner directed by section 12 of the Court of Session Act, 1825.
13. After (a) the objections (if any) to the teind roll have been disposed of by the Court, and (b) any extrajudicial surrenders of teind made before the passing of the said Act 15 & 16 Geo. V., c. 33, have been intimated, and evidence thereof produced, to the clerk (which shall be done before the expiry of six months after the date of the order for intimation of the teind roll), and (c) any surrenders of teind made in accordance with the provisions of the Sixth Schedule of the said Act 15 & 16 Geo. V., c. 33, have become effectual, and (d) intimation has been received by the clerk claiming that the deficiency of stipend caused by any such surrenders shall be reallocated among the heritors in the parish who have unexhausted teinds not yet allocated for stipend, and (e) objections, if any, of any heritor to such reallocation have been disposed of by the Lord Ordinary, a remit shall be made to the clerk to amend the roll, and if, in virtue of the amendments, the Lord Ordinary shall deem it necessary, he may order the clerk to reprint the roll as amended before declaring the roll to be final.
14. After the Lord Ordinary has by interlocutor declared the roll to be final he shall, where a common agent has been appointed, direct that an account of the expenses incurred to the common agent be lodged in process, and when lodged remit the same to the auditor to tax and report; and after approving of such report, shall grant decree against the heritors in favour of the common agent for the taxed amount of the expenses as approved, and for the expense of extracting the decree and proportioning the same in accordance with a scheme of apportionment thereof prepared by the clerk in terms of the provisions of section 11 (3) of the said Act 15 & 16 Geo. V., c. 33.
15. Except in the cases specified in the said Act 15 & 16 Geo. V., c. 33, in which the finding or judgment of the Lord Ordinary is declared to be final, any judgment of the Lord Ordinary may be submitted to review by the Division to which the cause belongs by giving in a Note, which must be lodged within twenty-one days after the date of the finding or judgment complained of, and the procedure on that Note shall be the same as in reviewing judgments of a Lord Ordinary in the Court of Session.
16. The clerk shall, on receiving notice of any change of ownership of the lands contained in one entry in the teind roll in respect of which lands a standard charge has been constituted in accordance with the provisions of section 12 of the said Act 15 & 16 Geo. V., c. 33, insert in the teind roll the name of the new proprietor as stated in said notice; such notice may be in the form of Schedule A annexed to the Act 37 & 38 Vict., c. 94, provided always that notice of change of ownership of part only of an entry in the teind roll shall be given effect to by the clerk only where the provisions of section 13 of the said Act 15 & 16 Geo. V., c. 33, are complied with in said notice. 17. Where a standard charge has been constituted on the lands of any heritor in terms of the provisions of section 12 of the said Act 15 & 16 Geo. V., c. 33, and the same has been redeemed in accordance with the provisions of that section, or where a stipend exigible from the teinds of any lands of a heritor has been redeemed in accordance with the provisions of section 14 of the last-mentioned Act, the clerk shall, on receiving notice in writing of such redemption signed on behalf of the General Trustees and the owner of the lands the standard charge on which has been redeemed, or of the lands the stipend in respect whereof has been redeemed, make an entry to that effect in the teind roll.
18. An excerpt from a teind roll of any entry or entries therein certified by
the Clerk of Teinds shall be received in any Court of Law as sufficient evidence of such entry or entries.
And the Lords appoint this Act to be inserted in the Books of Sederunt and to be printed and published in common form. J. A. CLYDE, I.P.D.
SCHEDULE REFERRED TO.
UNTO THE RIGHT HONOURABLE
THE LORDS OF COUNCIL AND SESSION,
THE CHURCH OF SCOTLAND GENERAL TRUSTEES, incorporated by the Church of Scotland (General Trustees) Order, 1921;
Humbly sheweth,THAT by the Church of Scotland (Property and Endowments) Act, 1925, section 11, it is provided, inter alia, that "There shall be prepared by the Clerk of Teinds for every parish in Scotland a Teind Roll specifying in sterling money (a) the total teind of that parish; and (b) the amount of that total applicable to the lands of each heritor; and (c) the value of the whole stipend payable to the minister, so far as payable out of teinds, including vicarage teinds payable as stipend and surrendered teinds so payable; and (d) the proportion of that value payable by each heritor in the parish.'
That the stipend[s] of the Minister[s] of the [United] Parish[es] of [ in the Presbytery of [ and County [or Counties] of [ ], became standardised within the meaning of the foresaid Act as at the term of Martinmas 19[ ], in consequence of the [death, resignation or translation of the Minister, or intimation in terms of section 4 of the said Act by the Minister to the petitioners of his election, or notification in terms of section 5 of said Act by the petitioners to the Minister and other parties mentioned in the said section-the particulars and dates should be shortly stated].
That the final augmentation in terms of section 10 of said Act has been localled upon the heritors conform to Decree of Locality made final on [give date]: or That no proceedings are to be taken to obtain an augmentation under section 10 of said Act or That the Lord Ordinary has pronounced a finding that there is no surplus teind in the parish available for an augmentation under section 10 of said Act or That the time within which proceedings under section 10 (2) of the foresaid Act may be taken has expired.
That in these circumstances the preparation of a Teind Roll of the Parish[es] of [ ] should now be proceeded with in terms of section 11 of the said Act. May it therefore please your Lordships to appoint this Petition to be intimated to all parties concerned by affixing a copy thereof to the most patent door of the church of the said parish[es] on two successive Sundays before the diet of public worship on each of these days, and by inserting a short notice thereof in the Scotsman newspaper and in [another newspaper circulating in the county in which the said parish[es) [are] situated] once a week for two successive weeks, or in such other or further form and manner as to your Lordships may seem proper; to appoint the heritors of the said parish[es] of
meet and choose a common agent; to appoint said heritors to lodge a State of Teinds; to remit to the Clerk of Teinds to prepare a Teind Roll in terms of said Act 15 & 16 Geo. V., c. 33, and upon the Teind Roll being reported to your Lordships, and after considering the same with any Objections and any Answers thereto and along with any Surrenders of Teinds that may be duly made, to adjust and complete said Roll, and to declare the same to be a Final Teind Roll. According to Justice, etc.
SOME POINTS OF ENGLISH
By E. R. M. TAYLOR, Law Agent.
As a student of English law for the last three years and being engaged in the common-law side of a firm which has much Scottish work as
well as English, it has been borne upon me that both in Scotland and in England the legal profession has suffered from a lack of knowledge of the different procedure which is followed in the adjacent country.
It may be helpful to know what is required in the English Courts when a Scottish solicitor puts matters into the hands of his English colleague and vice versa. With the object of explaining something of what seems obscure in the English procedure, I have thought to give a short synopsis of what is required in the High Court of Justice.
1. DIFFERENT WAYS OF COMMENCING PROCEEDINGS.
order in the name of the King and witnessed generally by the Lord Chancellor. The writ requires the defendant to enter an appearance to same at the place directed within eight days after personal service, under pain of having judgment signed against him.
The writ sets out, inter alia, the remedy or 66 inrelief sought by the plaintiff, called the dorsement," which may be (a) general where the remedy sought is in respect of an unliquidated claim such as damages; (b) special, which may only be used in certain specified cases, e.g. a liquidated amount due under a contract or a bond, or in an action to recover mination thereof by notice to quit, or where land on the expiration of the term or deterthe term has been forfeited for non-payment of rent (but not if forfeited for the breach of any other covenant)-the landlord may also add a claim for the rent or for mesne profits; and (c) for an account where the plaintiff desires an account taken, as in the Scottish procedure of count, reckoning, and payment, etc.
The advantage of this third form of indorsement is that in default of appearance, or where appearance has been entered but the defendant has not satisfied the Court that there is some preliminary matter to be decided, the Court will, on the application of the plaintiff, order the account to be taken without any further proceedings.
In England there are three main Divisions of the High Court of Justice, these being the King's Bench Division,' the Chancery Division," and the "Probate, Divorce, and Admiralty Division." The King's Bench Division hears causes arising out of the common law, whereas the Chancery Division exercises its functions as a Court of equity. (Equity (2) By Originating Summons.-This is any turned on the idea of the King's perfection, his summons other than one in a pending cause or power to amend the law and to redress griev-matter; this summons commences the proances for which there was no relief at common law.)
ceedings instead of a writ. Other summonses are interlocutory ones, after the action has been commenced, for the purpose of deciding questions which would in the Parliament House be decided in the Procedure Roll or the Motion Roll.
Although an attempt was made by the Judicature Act, 1873, to do away with the distinctions between these two remedies, and it was enacted that either Division could try and decide actions arising equally out of the The originating summons is used in the common law or out of equity (and in conflict King's Bench Division to order the defendant the rules of equity were to prevail), in practice, to do or to refrain from doing something as actions which arise at common law are still in an interdict, or for the English process of commenced in the King's Bench Division, while multiplepoinding, called "interpleader”; and those arising in equity are brought before the in the Chancery Division to foreclose a mortChancery Division. No solicitor would avoid-gage; or in any actions which arise out of trust ably employ a Chancery counsel in an action estates where the value of the estate is under before the King's Bench Division, nor con- £1000. versely would he employ a common law This summons is a cheaper proceeding than counsel in an action where the relief sought an action commenced by writ of summons, could only be given in equity. as there are no pleadings and the case is often heard in the chambers of the judge or master instead of in open Court.
The Probate, Divorce, and Admiralty Division deals with petitions and actions relating to the proving and granting of probate in will cases, consistorial causes, and also exercises civil jurisdiction in matters arising at sea or on the coasts of England.
Legal proceedings may be begun in any of six different ways:
(1) By Writ of Summons.-This is a written
(3) By Petition, which is a written application to the Court in lengthy matters. This process is chiefly used in the Chancery Division for the purpose of winding-up a company, and in trust estate actions where the amount of the trust estate exceeds £1000, or a bankruptcy petition.
(4) By Motion. This is a verbal application by counsel for urgent relief, e.g. the appointment of receivers, etc., after notice has been given in writing.
(5) By Special Case, where the parties having agreed upon the facts seek a declaration from the Court as to the legal effect and consequence of such facts. The question must, however, exist in practice and may not be merely hypo- | thetical or academical.
suffices for a group of States, and from their decisions appeal lies to Washington.
What with the State Courts, both supreme and superior, and the Federal Courts in all their branches, it may be imagined how great is the volume of law reports issued annually in the United States, and how acute is the problem of digesting the copious flow of law. All the States, forty-nine in number, have their law reports, and there are also, of course, federal (6) By Replevin, which is an action com- law reports and reports of the Supreme Court menced in the County Court by a party whose at Washington. There are also reports which goods have been seized under a distress warrant govern certain well-defined groups of States, and the validity of the distress has to be deter-e.g. Atlantic Coast, North-West, and so forth. mined, and from which Court it is transferred to the High Court on certain conditions.
(To be continued.)
SOME NOTES FROM AN AMERICAN
The writer of these notes recently had occasion to spend some days in listening to a case in one of the American law Courts, and found much that was interesting in the proceedings, both from the general resemblance to our familiar procedure and from the contrasts not infrequently presented. An account of some of these may interest the readers of this paper. It is only fair, however, to remind them at the outset that this account concerns one Court in one of the New England States, and that there is no country in the world about which generalisations are more dangerous than the United States. Each State has its own Courts, both superior, i.e. the highest Court of first instance, and supreme, i.e. a Court of Appeal, consisting of five judges, sitting together, the president being chief justice of the State. From this last Court an appeal lies to the Supreme Court of the United States, sitting in Washington, but only on questions deemed to be of federal interest, i.e. affecting the whole country and not merely the individual State. Practice and procedure differ widely in the different States. Parallel to these Courts are the Federal Courts of the United States, in which matters are litigated of clearly federal interest or between litigants resident in different States, or where for any other reason their jurisdiction is preferable to that of the State Courts. The matter in dispute, exclusive of interest and costs, must exceed $3000 in value. Special cause must be shewn by the plaintiff before his case is heard in the Federal Court, but practice here closely resembles that in the other Courts. Appeal lies to the Circuit Appeal Federal Court, a bench of five judges which
Besides this, there is a vast output of legal journals of every size and kind. Digests are indispensable to the legal enquirer; but with such a mass of material, “key digests" and digests to digests" have become necessary. In short, if a man had time and strength to look for it, there must be warrant for every legal proposition, possible and impossible, in the law reports of the United States. It must also be remembered that not only the federal congress and Senate at Washington are hard at work adding to the Statute book, but that every State has its own legislature all busy, some of them in the most meticulous and grandmotherly way. Statute law is thus another proposition with which the lawyer has to grapple, and the pessimist who estimated that there are five million laws in the United States was perhaps not demonstrably exaggerating. It is estimated on good authority that no fewer than ten thousand laws were passed in the United States last year. The problem, therefore, of a suitable library is an even more difficult one for the professional man over there than it is here.
The case with which we are here concerned was in the Federal Court. It proceeded on a Bill in Equity addressed "To the Hon. the Judges of the District Court of the United States for the District of" the State in question.
The plaintiff complains against the defendants as follows." Here came a statement of the domicile of the parties and the value of the suit, exclusive of interests and costs, viz. $500,000. On the matter of costs it is interesting to note that only $1 a day can be recovered from an unsuccessful litigant for counsel's fees. It need hardly be added that this figure is of a purely nominal character, for, after some experience of lawyers' charges in America, one is driven to the reluctant conclusion that the art of charging is in this country merely in its infancy. Of course there is no subdivision of the profession over there, and the case is prepared in the office of the counsel who pleads it.
The general nature of the case was what we should call a count, reckoning and payment. The complaint was followed by a general
statement of the facts. The money involved was made by two brothers, of Scots extraction, bearing a well-known Scots name, and endowed with strongly developed Scots instincts, in a shoe-manufacturing business. On their death the business was continued by their sons, who were also executors. No division was made of their estates, which continued to fructify in the business. Indeed, the interests of the brothers were very closely intermixed. They seem to have owned everything in common, even their houses. The complainant, son of the one brother, retired from the business, leaving his interest in the hands of his cousins, sons of the second brother, whose representatives were the defendants in the present action. They were stated to "hold the complainant's said interest impressed with a trust on behalf of the complainant," and, briefly, to have made a pretty good thing out of it, for which they never accounted to him. They were insistent, his averments recited, that there should be no accounting, and there was none; though requested, no true and final accounting and settlement was ever made. Your orator accordingly prays for an accounting to be ordered, and that the defendants be ordered to submit books, papers, etc. The general suggestion was that the other partners had frozen out their cousin, and not only concealed his share of profits in the business but swindled him in connection with the sale of bonds in which all were interested.
The answers by the defendants admitted a good deal of the plaintiff's averments but denied (broadly) the really relevant facts. There was in fact, they stated, a final accounting and dividing out. Although not plainly stated in the record, there was a kind of suggestion running through the case that the plaintiff had spent his share of the estate and a bit more in horse-racing certainly he had been bankrupt on at least one occasion.
The form of answering many of the averments was singularly suggestive of Scots pleading. "The defendants neither admit nor deny this article, but leave the plaintiff to prove the
It is perhaps worth noting that the pleadings were all typewritten. There is no printing until the case comes to appeal, if it ever does so. To the answers filed by the defendants the plaintiff took various formal exceptions, and a good deal of amendment evidently took place. We are apt to talk of the law's delays here, but no comment was made there on the circumstance that the original Bill was filed in March 1922; the case began to be heard on 8th September 1925. After a week's hearing it was adjourned for a further three weeks. Even after these delays, the Court did not seem prepared
to make a very determined effort to grapple with the case in order to get it finished. It sat at 10, adjourned for a recess of ten minutes at 11.15, rose for lunch from 12.30 to 2, and sat to 4, with another recess of ten minutes at 3. the request of counsel, other recesses granted from time to time in order to consider whether they should object to the reception of certain depositions, schedules, etc. One of these lasted forty-five minutes. In adjourning at 12.30 on the first day the judge genially observed: "I know that you gentlemen are accustomed to wait till 1 o'clock for an adjournment. But my experience of this place leads me to believe that if we adjourn now our dinners will be better and hotter than if we wait till 1."
The judge made a most impressive entry, being announced, not curtly as " Court," but as "the Honourable the Court of the United States." Before he took his seat an official pronounced a complicated kind of benediction which ended with the words, "God save the United States." At each entry of the Court the same dignified ceremonial was performed. Here it might be remarked that the behaviour of those present in Court was irreproachable; not a whisper was ever heard amid their ranks; and if anyone had anything to say to anybody else they tip-toed from the room to let him do so. Anything like the buzz which is sometimes heard in Courts of Justice on this side of the Atlantic was quite unknown, at any rate, be it observed, in this particular Court.
The seating arrangement of counsel was, to our ideas, peculiar, but the same thing was observed in other Courts later visited by the writer. There were two tables in front of the judge. At that nearer to him sat counsel for the plaintiff; behind them, at the second table, sat counsel for the defendants. In addressing the judge, counsel say, "Your honour," or "Please, your honour."
One of the counsel for the plaintiffs opened the case, which took him several days. He had been born in Scotland of Scots parents, but one would never have suspected it from his voice, which was less surprising when one learned that he had "emigrated" from his native land at the ripe age of three. After reading the pleadings he went on to argument, much of which consisted in protracted reference to bank-books ranging back for thirty or forty years. Whenever he came to a document to which he wished to refer he simply produced it, and it was put in process. When witnesses are on the stand" the same procedure is followed, i.e. there is no need to furnish the adversary in advance with copies of the documents, which he may then see for the first time. It is rather remarkable that counsel examine witnesses without precognitions; of course, this is only