THE SCOTTISH LAW MAGAZINE AND SHERIFF COURT REPORTER. METHODS OF LEGAL STUDY.* We think it of good omen for the future progress of the | so justly condemned by Lord Kames in the preface to law in Scotland when its judges become its teachers, his "Historical Law Tracts," that it is taught as if it whether from the desk or the press. Lord Mackenzie were a collection of facts, having no natural or historical has given to the profession, in his "Studies in Roman connection. The third method is that so ably advocated Law," the best book we now possess as an introduction by that learned judge, and so well set forth in the preto the civil law, which, we are confident, will do very face we have just referred to, and that is to pursue the much to revive and extend its study, not by lawyers study of law historically. The volume of "Law Tracts" only, but by every man of liberal education who is was published as a specimen and inducement to this desirous to know the spring and growth of the most mode of studying the law; but we need not say the essential part of the Roman polity, and its bearing on author has had no follower. We have no chair of legal the past and present condition of our municipal law. history; we have not even the history of any one branch We have now the Lord Justice-Clerk addressing the of the law written, or at least published, and the history Juridical Society of Edinburgh on the Historical Method of the rise and progress of the law of Scotland has yet to of Studying Law, especially applied to the law of Scot- be written. Such a work might not bring emolument; land, but equally applicable to the study of any system but whoever shall present such a work to the profession of positive law. and the world, will have supplied a want not only in law but in literature. On this suggestion or exhortation of Lord Kames, to whom it seems to have been immediately suggested, or at least enforced, by Lord Bolingbroke-a large extract from whose work on the study of history is given in the preface to the "Law Tracts"-the Lord Justice-Clerk has delivered an address which cannot fail to draw the attention of those on whom is laid the direction of the studies of our young lawyers, and to operate most beneficially in the progress and advancement of the law, and as a subject of elegant and liberal study. Every lawyer, to maintain his position, must continue student through life, and to the grave. He imperils all he has attained by any relaxation of study. This may be sustained by various motives, chief of which is a genuine love for it. Among what has been called the laity, and even among many lawyers, law is said to be a dry study, repelling young and ardent minds. Looked at from a certain stand-point, this may be granted. We are usually much impressed for or against an individual by the way in which we approach him, and the nature of our reception: so it is with law. If we approach it in a certain manner, it will always be an arid and repellant study, and the candid avowal of Sir Walter Scott will be that of many whose business or trade is the law, that the longer he continued at it, the less he liked it. The method, then, in which we approach the study of the science of law is all-important. Now, there are at least three methods in which law may be studied. The first is, having irregularly attended your legal course, profited by it but little, and forgotten all you may have listened to, you begin business, but never open a book except when some question occurs in practice which demands more than usual care and attention. This be called the pro re nata method. The second is that may THE HISTORICAL STUDY OF LAW: An Address Delivered to the Juridical Society-Session 1863-64. By the Right Hon. John Inglis, D.C.L, LL.D., Lord Justice-Clerk. Edinburgh: Blackwood & Sons. The object proposed by the learned judge in his admirable address is, he says,— I propose to offer you some observations on a subject which appears to me to be of great importance to students of law, and particularly to those who aspire to the profession of an advocate, on a department of legal education, which, notwithstanding the greatly improved standard both of general scholarship and legal knowledge now established in testing the qualification of candidates.... for the bar, notwithstanding the full and complete curriculum which is now afforded by the Faculty of Law in our metropolitan university, remains to a great extent neglected and forgotten, though its cultivation is indispensable to every one whose ambition is to attain and merit the reputation of an accomplished lawyer. M Again he says, No man can be an adept in any science without a knowledge of its history, and this is especially true of the science of jurisprudence. To illustrate and enforce this proposition in its widest application might furnish the materials of a very useful and instructive treatise. But my object on the present occasion is to attract you to a historical study of the law of Scotland in particular, as forming not only a natural branch of legal education in this country, but as being an indispensable qualification to the due discharge of the duties either of an advocate or of a Judge. As to statute law, he says, How, then, let me ask, can any one be a safe or intelligent interpreter or administrator of either our statute or our common law who is content to receive the one and the other equally as mere matter of fact, or even to regard them as component parts of a consistent and harmonious system of modern law adapted to the present times, without any inquiry into their sources and origin, or any knowledge of that gradual process by which they have attained their present form? he says, As to common law, Again, in handling the great principles of the Common Law, and applying an ancient rule to a modern case, is it not of the last importance to know when and how the rule was established, or from what source it was derived, lest in blind deference to the letter of an admitted rule we violate its spirit, from ignorance that it arose out of, and was designed for, a condition of society, a state of commercial dealings, or a class of cases to which there is no parallel in the present day? As to the uses of historical studies to lawyers, he says, It has been said by one eminent writer, that the most important part of the history of any civilized nation is to be found in the Statute Book; and by another, that the true method of historical study is to elucidate and illustrate law by history, and history by law. It would seem, therefore, that no man can be well read in the history of his own country who has not acquired some knowledge at least of the history of its jurisprudence. But surely the student who looks forward to law as his profession may be expected, more than any other, to study the history of Scotland in the light of the Statute Book, and thus to make himself thoroughly acquainted with its constitutional and legal history. As an example of the ignorance which prevails in certain quarters we need not specify of Scottish legal history, take the following reminiscence: I have, in the course of my professional life, met with lawyers of great talent and distinction, who undertook to expound and interpret Scottish statutes, but who, nevertheless, received with some surprise the information that the Scottish Parliament consisted of one Chamber, and not of two; who had never heard of the distinction between a Parliament and a Convention of the Estates of the realm, and who had no more definite idea of the Lords of the Articles than a vague surmise, that probably the articles had some connexion with the Confession of Faith. I do not say these men were either Scottish lawyers or Scotchmen; but I cannot contemplate, without nervous apprehension, the possibility that, through continued neglect of the historical study of Scotch law, ignorance somewhat akin to this may some day suddenly appear among us, and fright us from our propriety. Of the legislation of the seventeenth century, he says, Recall for a moment the legislation of the seventeenth century. It embraces the great statutes of prescription; the completion of our unrivalled system of registers; the new constitution of the Justiciary Court on its present footing, a great step in the progress of freedom; the law of entail; the new regulations for the conduct of business in the Court of Session; the settlement of the whole law of titles on so sound and satisfactory a footing as to have ever since secured an immunity from the social troubles with which the administration of this department of law has been attended in other countries; the rules for the division of commonties and runrig lands, a fitting complement of the series of statutes for the encouragement of agricul ture and the improvement of the soil, which is one of the most striking features of our earlier legislation; the statutory recognition and enforcement of the funda mental principles of bankrupt law, in Acts which still form the most valuable part of our Code of Bankruptcy; the process of ranking and sale, which anticipated by more than a century and a half, not the principle merely, but the practical working of the Irish Encumbered Estates Acts, which are thought to be a masterpiece of modern legislation; and numerous other changes of the most important and beneficial character, which will readily occur to your memory. Can any one be content to receive these as bare facts, without caring to know what was the Parliamentary history of a period productive of such measures, and who were the men by whose wisdom they were devised, and by whose energy they were carried into successful execution. On that peculiar branch of the Scottish Constitution, "The Articles," he has the following observations: The agency, by means of which the independence of the Scottish Parliament was at that time more immediately held in check, was an abuse of an institution, or form of procedure, peculiar to Scotland. The Committee of Parliament called "The Lords of the Articles,” or, more shortly, "The Articles," may be traced back to an early period-probably as far back as the reign of David II.—and was, beyond doubt, originally introduced, and long continued, only as matter of convenience, and with no design to enhance the power of the sovereign. However great the delegated authority of this body might be, it did not seem likely to become an engine of oppression or tyranny, so long as its appointment remained in the hands of the Parliament itself, and the Committee consisted of a fair representation of the different estates. But experience showed that such unlimited power as was possessed by the Lords of the JUDICIAL STATISTICS. FOR 1861. Articles to determine what should, and what should not, in any country be vested in the hands of a small number SHERIFF COURTS (SCOTLAND)-CRIMINAL RETURNS of persons, without the greatest danger to public liberty, however jealous might be the precautions taken to insure a fair and impartial selection of men to discharge the trust. Nor will this appear at all surprising to any one who will consider the immense difference which exists, both in theory and practice, between what may be called a preliminary veto, enabling the King to stifle the discussion of every obnoxious subject, and that constitutional power of rejection after discussion, which is implied in requiring the royal assent to all Acts of Parliament. It must be obvious that if the King could ever secure a preponderating influence in the committee of the articles, his control over the proceedings of Parliament would be almost unlimited. It is well known that the formidable power given to the King by the existence of such a body was abolished at the Revolution, and formed one of the list of grievances presented by the convention to King William. The learned judge then proceeds to inquire why it was, when the King was almost supreme, and the Parliament so trammelled, that so many excellent reasons for the improvement of the law were passed in the seventeenth century. He finds it in the legal character and attainments of the lawyers who practised before the Court or sat on the bench; and while admitting that they may have been zealously and even fanatically attached to doctrines and opinions inconsistent with true liberty, relentless persecutors of those who differed from them in religion or politics, yet that experience teaches us that such men may be, and in this instance were, almost as zealous in the promotion of the true interests of their country. As specimens of biographical history, he sketches in a brief yet admirable manner the career of Sir Thomas Craig, Sir Thomas Hope, the first Earl of Haddington, and others, and brings us down to the famous controversy, in 1674, about the right of appeal to Parliament from judgments of the Court of Session, and the secession from the bar of about 100 advocates. The controversy arose out of an action between the Earl of Dunfermline and the Earl of Callender, and the history of the rise, progress, and result of the right of appeal is given pretty fully. It is curious enough that though the denial of the right of appeal in 1674 was declared by the Convention of Estates, in 1689, to be a grievance, and conceded by King William, it is not to be found in the Treaty of Union, in 1707, and some noise was in consequence made when the first appeal after the Union came before the House of Lords, but the objection was overruled, and ever since the right has been exercised without challenge, and now forms a recognised part of the constitution. Such is a summary of this excellent address, the possession and perusal of which we earnestly recommend to every lawyer; and with the learned judge we hope that he may have induced, not the limited audience he addressed, but every lawyer to whom his address may come in its printed form, "to a more faithful and laborious study of the history of our law, and thereby have contributed (not slightly, but largely) to the improvement of legal education in Scotland." A PARLIAMENTARY return of all criminal cases tried before the Sheriffs in Scotland during the year 1861, in which the parties accused have been found guilty, has been issued, showing the Court, and the name of the Sheriff presiding; the nature of the crime; the sentence following thereon; and whether the party had been previously convicted. The number of cases in each county was as follows:-Aberdeen, 278; Argyll, 69; Ayr, 215; Banff, 24; Berwick, 150; Bute, 21; Caithness, 34; Clackmannan, 59; Cromarty, 5; Dumbarton, 175; Dumfries, 79; Edinburgh, 660; Elgin, 59; Fife, 215; Forfar, 211; Haddington, 175; Inverness, 116; Kincardine, 151; Kinross, 52; Kirkcudbright, 113; Lanark-Upper Ward (Lanark), 115; Lower Ward (Glasgow), 324; Hamilton District, 268; Airdrie District, 139-total, 846; Linlithgow, 234; Nairn, 14; Orkney, 88; Peebles, 43; Perth, 343; Renfrew, 128; Ross, 109; Roxburgh, 114; Selkirk, 54; Shetland, 28; Stirling, 616; Sutherland, 12; Wigton, 78. Correspondence. (To the Editor of the Scottish Law Magazine.) STIRLING, 17th November, 1863. SIR,-In the number of your Magazine for this month, there is a notice of my letter to Mr Stirling of Keir, on the Sheriff Courts, on which, in fairness, I may be allowed to offer you some observations. I take no exception to the tone of criticism of my pamphlet, though you designate it as "a very narrow and personal affair, which very imperfectly calls forth the sympathies of the public or the profession, and has very much the appearance of a reclaiming petition," for which last remark I rather give you credit, even though the idea may perhaps be borrowed from Davie Gellatly, in Waverley, where he likens Baillie M'Wheeble's conversation to a "charge of horning." But there are two charges made against me which I think myself entitled to answer, though I shall do so with all possible brevity. First. You charge me with advocating the same allowance of salary for all the Sheriff-Substitutes, and you ask, "Would the Sheriff-Substitute give as large a salary to a brother Judge, say in Stornoway or Bute, or the Long Island, as he would to one in Stirling, Perth, Dundee, Edinburgh, or Glasgow? Yet, if the SheriffSubstitutes' case means anything, it must mean that." To this I beg to answer, that so far from meaning that, it means the very opposite-that the Sheriff-Substitutes' case means this-that the persons who do the work should be paid for doing it, and that they ought to be paid in proportion to the work which they do. The principle upon which my letter is rested, from the motto to the end is, that the labourer is worthy of his hire that he should be paid for his work, and in proportion to it, and that those persons who have either no work to do, or who, if they have, don't do it, should not be paid at all-reserving, however, all existing rights. I entirely concur in the opinion which you attribute, and I hope correctly, to the Lord Advocate, that "a fixed sum for all the Sheriff-Substitutes of Scotland would never do." In what part of my letter you find the slightest indication of a contrary view I am unable even to guess. of Sheriff Court business, that Twenty-five Appeal Sheriffs are altogether in excess of the requirements of the judicial business of the counties. I have a strong belief also, that fifty-five Sheriff-Substitutes are greatly more than are wanted, and that by a great diminution in the number of both classes of officials, the work would be infinitely better done. Full employment is one of the most important aids to legal knowledge and judicial fitness. The object of my pamphlet is to excite public attention to this important subject (which I am glad to know I have to some extent accomplished), in the hope that a Parliamentary commission-not a Government commission-may be issued to investigate a subject which is of the greatest importance, not as regards the private interests of the present officials, but the public at large. Your second charge is equally unfounded. You say that another purpose of the pamphlet "is gone about in a more indirect method"--this other purpose being "to abolish the Sheriff-Depute, that the right of appeal might, as a matter of course, go with him." There is not a word in the pamphlet from which either of these conclusions can fairly be drawn. I have shown (and if I have said that I take no exception to the notice, the numerous letters I have received on the subject are to be credited)-shown successfully-that the SheriffDepute, whatever the nature of his office may be theoretically, is now practically, according to the existing form of process which has grown up since the passing of the Statutes in 1826, 1838, and 1853, an Appeal Judge only, and an Appeal Judge only in that class of cases which are conducted on written pleadings. I have farther stated, that in those counties where there are few cases in the Ordinary Action Roll, the SheriffDepute is an Appeal Judge with few or no appeals to dispose of. But does the granting or maintaining of these propositions carry along with it either the abolition of the Sheriff-Depute or the right of appeal? Nothing of the kind. They may lead to this conclusion, that in all those counties where the business of the Ordinary Action Roll is inconsiderable, where the Sheriff has little or nothing to do, a separate Sheriff should not be maintained, and that by the union of a number of counties under one Appeal Sheriff, a sufficient field of duty should be found for a lawyer of ability and learning. This course has been already adopted by the Legislature to some extent, and all I advocate is its extension. I am perfectly satisfied, from what I know though there is some lack both of truth and of courtesy where you exclaim, "Strange to say, the member for Perth-one of the ablest of Scottish members-was even found deficient in the knowledge of the position and duties of our Sheriffs, and to enlighten him, and through him the other M.P.'s, the Sheriff-Substitute of Stirling has given us a history." This is rather a perversion of my introductory observations, in which I say "to you, indeed (Mr Stirling of Keir) the general history of our local tribunals is sufficiently familiar," and that I dedicate my statement "to you, on account of the great interest which you take in the civil and criminal jurisprudence of the country, and the accurate knowledge which you possess of every subject to which you have directed the energies of a powerful and highly-cultivated mind." I think these expressions might sufficiently have protected me from the charge of presumption "in attempting to enlighten Keir." I am, SIR, Your obedt. Servt., ROBT. ROBERTSON. REPORTS OF CASES DECIDED IN THE SHERIFF COURTS 3D DECEMBER, 1862. SHERIFF COURT, GLASGOW. (MR SHERIFF STRATHERN.) disposing of the petitioner's application for continued interim interdict, and to enable the Sheriff-Substitute so to do, appoints the respondents to adduce such proof as will instruct the averments before mentioned, to-morrow, at twelve o'clock noon, within the Sheriff-Substitute's chambers, at which time the pursuer will be allowed also to adduce counter proof re MRS BARBARA MACLEAN or MUNRO v. DEMPSTER & lative to said averments, and until said proof shall have DALZIEL. Landlord and Tenant-Interdict.-A landlord began to take down a tenement before having arranged with one of the tenants. The tenant applied for and obtained interim interdict. The Substitute, on grounds of expediency, recalled the interdict, on the respondents finding caution to indemnify the petitioner. On appeal, held that the petitioner, standing on her legal rights, was not bound to resort to a claim of damages only against the offending party, but was entitled to interdict; and interim interdict granted. THE petitioner was a tenant of the respondent in Main Street, Glasgow. She had taken the house in June last, from that time till Whitsunday next, the rent to be at the rate of £9 per annum. She entered into possession, and was in possession at the date of presentation of this petition on 3d November last. The respondents, who are builders, with the view of erecting a range of new tenements, began to take down the old building, of which the petitioner's house formed part, and in particular had taken off the slates, and had surrounded the building back and fore with the old materials. She therefore presented this petition for interdict against the respondents further proceeding with their operations, and craving an order on them to rebuild and restore the premises to the same condition in which it had been previously to the commencement of their operations. Interim interdict was granted, and a diet fixed for hearing. On 4th November, parties' procurators having been heard, the Sheriff-Substitute pronounced the following Interlocutor: Having heard parties' procurators on the petitioner's application for continued interim interdict, in respect it is alleged by the respondents, that, without admitting the alleged let, the petitioner expressly agreed to waive all titles to possession of the subjects in question, and to vacate the same, so that the defenders might proceed with whatever operations they had in contemplation, on the petitioner being freed of an arrear of rent which she was owing, and of a further payment of five shillings; that this arrangement was made before operations were commenced, and that the said operations were entered upon on the faith of it; and that the respondents are now willing, and have always been ready to discharge said arrears of rent, and to pay said sum of five shillings. Before finally been led continues the interim interdict, and quoad ultra, reserves the whole rights and pleas of parties; and, finally, appoints parties to be heard on the grounds of action, and in defence, on 7th November current, at eleven o'clock forenoon, in case the respondents shall have duly lodged a notice of appearance. Parties' procurators having been heard, the SheriffSubstitute pronounced the following Interlocutor: Having heard parties' procurators on the petitioner's application for continued interim interdict, and having heard witnesses for both parties on the respondent's allegation that the petitioner had agreed to vacate the premises as stated in last Interlocutor: Finds that the respondents have not made out such a prima facie case of such an agreement having been entered into as would entitle them to claim in hoc statu a recall de plano of the interdict granted; but having regard to the eventual interests of both parties, and to the comparative injury and loss to be sustained on either side by granting or withholding interim interdict: Finds that the preponderance of loss must eventually be greater on the respondent's side by interdict being granted, than on the side of the petitioner by the interdict being refused, but that in any view the petitioner's interests and rights, whatever these may eventually be proved to be, must be protected: Therefore, on the respondent's finding caution, acted in the books of Court, that they will indemnify and harmless keep the petitioner from all the consequences of their operations, in case it shall be established that she is entitled to possession of the premises till Whitsunday next; and against all damages she may sustain and expenses which she may incur if compelled to remove through said operations, recals the interim interdict, and allows the respondents fortyeight hours to find such caution, but continues the interdict until such caution shall have been found, and the said caution is hereby limited to the sum of fifty pounds. This Interlocutor was appealed, and after a hearing, Sir Archibald Alison pronounced the following judg ment: Having heard parties' procurators under the appeal upon the Interlocutor appealed for, and whole process, in respect it appears from the summary complaint produced in process, at the instance of the present defenders, Dempster & Dalziel, that the house in question was let to the present pursuer from 20th June, 1862, to the term of Whitsunday following, which let is still current, in respect it is not competent for the owner of a tenement, separated into flats, and let to different tenants, to take off or remove the roof and upper flats without the consent of the tenants in the lower flats, thereby leaving them exposed to the inclemency of the weather, without any covering: in respect the pursuer alleges that the defenders are in course of removing and taking down the stories above her flat against her consent, by which she will sustain serious loss and damage; and in respect parties are entitled to stand upon * A |