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Analytical Digest of Cases: Scotch Appeals to the House of Lords.

with her brother and two sisters, to a share in n fund subject to the life estate of their mother, and with benefit of survivorship, payable at twentyShe married, and all her share (subject to the life estate), and all and every other parts or shares to which she should become entitled under the will, or otherwise," was settled upon certain trusts. Her brother attained twenty-one, and died before the tenant for life, intestate, and she became entitled as next of kin to a part of his estate. Held, that this was not subject to the trusts of the settlement, as she took it as next of

kin, and not under the will. THE testator, by his will, gave a sum of money in trust to pay the interest, when invested, to his wife for life, and at her death to his son and three daughters equally, to be payable on their attaining the age of twenty-one, with benefit of survivorship. The widow and all the children survived the testator. It appeared that one of his daughters (the present petitioner) married, and that by her settlement all her one equal fourth part or share (subject to her mother's life estate), and all and every other part or share,


parts or shares, to which she, or her intended husband in her right, should become entitled under or by virtue of her father's will, or any appointment to be made by her mother, "or otherwise," was conveyed to the trustees of the settlement upon the trusts thereof. The son attained twenty-one, but predeceased his mother, the tenant for life, unmarried and intestate, and administration of his estate was granted to the second sister. The petitioner's husband had died, and she had married again.

The question was now raised on this petition presented by her and her husband for payment of her

share, as one of the next of kin of her brother's estate, whether such share was subject to the trusts of the settlement.

Baily and Wickens in support; Glasse and Erskine for the trustees of the settlement.

The Vice-Chancellor said that the petitioner took such share not under the will, but as next of kin to her brother, and that although it might be part of the original fund, she had not acquired it as such. An order would accordingly be made as prayed.



Scatch Appeals to the House of Lords.


See Railway Clauses (Scotland) Act, 2.


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Construction Water Company.-Upon a contract by a water company to supply a town with " pure and wholesome water at a certain rate of charge in consideration of the privilege to do so exclusively; the company insisted that they were entitled to prevent the use of salt water from the sea, and for that purpose sought an interdict or injunction, which however was refused. The refusal confirmed by the House.

Difficulties of Lord St. Leonards in concurring with this decision.

Shaw's Water Company v. Magistrates, &c., of Greenock, 2 Macq. 151.

And see Railway, 4.


1. Against a judgment merely applying verdict.—An appeal lies wherever a judgment upon matter of law is pronounced. And, therefore, when the court applies a verdict, by repelling a party's claim, the thing so done by the court is to all intents and purposes a judgment within the meaning of the jury statutes, so as to admit of an appeal to the Lords. Lord St. Leonards dissentient. Morgan v. Morris, 2 Macq. 342.

2. Practice.-Opinion by anticipation expressed by the Lords in order to prevent further contest between the parties.

Remarks by Lord Brougham upon the question: How far in a case not enumerated as appropriate for jury trial an appeal will lie against an interlocutor sending it to such trial? Walker v. Stewart, 2 Macq.



4 & 5 Wm. 4, c. 22-Executor and heir of entail. -A Scotch tenant in tail, though in legal contemp

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1. Question of Registration under the Entail Act, 1685, c. 22.-A deed of strict entail, whereby the maker, reserving himself a life-rent merely, calls to the succession in the first place his eldest son and the heirs male of his body, whom failing, a series of other heirs. The deed is recorded in the books of session. Afterwards the maker presents a petition for authority to register the entail in the proper register of entails, but in such petition represents the entail as being in favour of himself and the heirs male of his body. Upon the ground of this error: Objection, that the authority to register was bad; and that the registration pursuantly thereto was insufficient under the act. Objection overruled.

In the resolutive clause were the words "in case the said J. S. shall fail or neglect to pay or perform


Analytical Digest of Cases: Scotch Appeals to the House of Lords.

the said conditions;" but in the Register the words were different, being "shall fail to neglect or obey or perform." Reasoning upon which this discrepancy held immaterial.

Under a power reserved, the maker of the entail revoked the nomination of an heir. Objection by a creditor of the heir in possession, that the deed of revocation was not recorded in the Register of Entails. Answer, that the heir displaced was an heir who could not have come in until after the heir in possession.

Held by the Lord Chancellor that the entail stood upon both instruments (the deed of creation and the deed of partial revocation), and therefore that both must appear upon the register.

Dissent by Lord St. Leonard's agreeing with the court of session. Decision below consequently affirmed.-Norton v. Stirling, 2 Macq. 205.

2. Debts and Deeds-Prohibition-Irritancy.-The words" debts and deeds" in the irritant clause held to refer only to the "debts and deeds" mentioned in the immediately antecedent portion of the prohibitory clause, and not to the "debts and deeds mentioned in the prior members of that clause.

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Canon of construction per the Lord Chancellor.— In construing irritant clauses, the presumption is in favour of liberty, and therefore if the words admit of two readings, and the result of one is to give effect to the fetters, that which does not give effect to the fetters is that which ought to be preferred.

Canon of construction per Lord St. Leonards.-It is not the rule that in a Scotch entail you may not give to the words their natural import, but the rule is, that if words are used in an ambiguous or uncertain sense you cannot fix upon them a sense which will take from them the freedom which the other parts of the entail may have given.-Ogilvy v. Earl of Airlie, 2 Macq. 260.

3. Deed of Construction.—An entail made in 1726 was supposed to be binding and indefeasible. In 1821 the heir in possession directed his testamentary trustees to convey to those succeeding him in the estate certain fee-simple lands, and the conveyance was to be expressly "under all the conditions, provisions, and clauses prohibitory, irritant, and resolutive of the said entail, so far as the same might be applicable, and so as to form a valid and effectual The entail according to the law of Scotland." testator died in 1843. In 1849 the House of Lords decided that the said entail was defective.

Held, that the conveyance to be executed by the trustees should be so framed as to "make a valid and effectual entail;" and, therefore, was not to follow the original entail where it had been found to be defective.

Dissent by Lord St. Leonards. Stewart, 2 Macq. 295.

And see Apportionment Act.

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Graham v.

Directing Interpleader suit-Verdict-Uncertainty. -In a multiple poinding or interpleader suit, if a question arises which of two persons is heir or next of kin, the court will put the matter in a train of inquiry by directing an issue, and upon that issue the party asserting title will have cast upon him the duty not only of proving his own case, but of

negativing that of others.

Two issues were directed. The first was in these words: "Whether the pursuer Alexander Morgan is nearest and lawful heir And the second was of John Morgan, deceased?"

as follows: "Whether the pursuer James Morgan is, along with the said Alexander Morgan, next of kin of the said John Morgan, deceased?" The jury returned a verdict, "They find the case of the pursuers is not proven." The court of session thereupon gave judgment repelling the claims of Alexander and James Morgan. This decision reversed on the ground that the verdict by reason of its uncertainty, not showing whether the jury considered that the pursuers had failed on both, or only on one of the issues, did not warrant, and could not be the foundation of any judgment. Lord St. Leonards dissentient. Morgan v. Morris, 2 Macq. 342.

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1. Level crossing-Damages.-Damages are not recoverable for stoppages and other mere inconveniences incident to the crossing of a public road by a railway on the level under the sanction of parliament.

A level crossing in such a case, is a grievance to be endured without complaint by private persons from a consideration of the benefit gained by the public.

Hence, when a railway passes within a few yards of a gentleman's lodge, across a public road forming the chief access to his residence, although he was liable to constant stoppages by the closing of the gates on the level crossing, although the passing of trains frightened his horses and terrified his visitors, "particularly ladies:" Held, by the House of Lords (reversing the decision of the court of session) that these annoyances did not ground a claim of damages against the railway company

Held, likewise, that the inconvenience felt in such a case is one to which all the Queen's subjects are exposed, and for which no particular or individual remedy exists.

Held, moreover, that it is a mistake to regard the proximity of a level crossing as injurious to an estate or residence within the meaning of railway legislation. Caledonian Railway Company v. Ogiley, 2 Macq. 229.

(To be concluded in our next.)

The Legal Observer,




OBJECTIONS TO THE APPOINTMENT | (inter alia) various objections to the appoint


A SELECT committee of the House of Commons was appointed to consider the proposition for appointing public prosecutors and other officers for the administration of the criminal law. Many witnesses were examined, and, after several meetings, the committee recommended

1st. That district agents be appointed to prepare and conduct prosecutions, such districts being co-extensive with the jurisdiction of the county courts.*

These district agents to be attorneys of seven years' standing (appointed by the Iome Secretary). They are to abstain from private practice, having an annual salary of £700, and a clerk at £80.

2nd. That on each circuit a counsel of ten years' standing be appointed to advise the district agent in cases of difficulty, and that such counsel conduct the prosecution at the


3rd. That in ordinary cases the present practice of employing counsel be retained, the choice of such counsel being left to the district agents.

4th. The advising counsel are to be appointed by the Attorney-General, and remunerated by an annual salary of £500, with liberty to practise. The other counsel, selected by the district agent, to be paid by fees. 5th. It is left open, however, to private prosecutors to continue the present practice by employing their own attorneys and counsel, giving notice to the district agent, who may apply to the court for leave to take up the prosecution.

6th. Where the defendant has not been taken before a magistrate, the AttorneyGeneral's leave must be obtained to prefer an indictment.

Such is the substance of the conclusions at which the select committee arrived; and it appears that under a reference from the Lord Chancellor, Mr. Greaves, Q.C., has prepared an elaborate" Report on Criminal Procedure," which has just been printed, containing

Is this for the purpose of bringing the judges and clerks of the county courts in aid of the execution of the act? VOL. LII.

No. 1,487.

ment of public prosecutors and district attorneys in the manner proposed by the select committee. It is obvious, indeed, that the establishment of public prosecutors is liable to serious objections on the part of the Bar, and the election of district agents is equally objectionable in regard to the Attorneys. At the same time both classes of appointments seem ill calculated to benefit the public, or to promote a better administration of the criminal law than now prevails. We shall avail ourselves of the important points urged by Mr. Greaves.


The objections to the proposition that official' counsel should be regularly appointed to conduct all prosecutions in every criminal court


1. That such a measure is wholly uncalled for, as there is no pretence for saying that, where an attorney has been employed and the case properly prepared for trial, the prosecutions are not well and satisfactorily conducted at present.

Where pro

secutions fail in court, they fail either through the want of proper preliminary proceedings, or through the non-existence of sufficient evidence.

2. Prosecutions at present are, for the most part, especially where they are important, conducted by some of the most rising men on circuit, who are stimulated to active exertion by competition, and the hope for distinguishing themselves. Whereas a public prosecutor, secure in his place, would have no such motives for exertion, and would naturally

be liable to become careless and indifferent, and as years passed on would become through age and infirmity, unfit for the energetic performance of his

duties long before there was any reasonable ground for removing him.

3. It can hardly be supposed that any first rate, counsel would ever accept the office; its duties would preclude his attending to civil business on circuit altogether, and consequently any one taking such office must give up all hopes of ever becoming a leader of his circuit, or rising to the head of his profession. The result would be that the office would fall into the hands of second-rate counsel, who would not unfrequently have to oppose the ablest men on the circuit as counsel for the prisoners.

4. The criminal business, as a whole, would be an extremely heavy charge on any one individual; and, without affirming that it would be impossible for any one individual to conduct all the criminal business on a circuit, it cannot be doubted that he



Objections to the Appointment of Public Prosecutors and District Attorneys.

must undergo a very great amount of labour if he did. Besides, it frequently happens that two or three courts are trying prisoners at the assizes at the same time, and it consequently happens that there is a difficulty in arranging the business to be taken by each court, owing to one counsel being engaged in several cases. It is obvious that this difficulty would be greatly enhanced by having a single counsel to conduct all cases; and, if he had assistants, it would sometimes happen that they would not have sufficient time to master the cases, as is often the case now where one counsel holds a brief for another counsel.

On these several grounds it would seem that prosecutions would, in all probability, not be so well conducted by a public prosecutor as they are at present.

The appointment of a public prosecutor would greatly tend to discourage the study of the criminal law. At present it is much to be feared that due attention is not paid to the proper acquisition of a thorough knowledge of that law.

Still many gentlemen who have to make their way by their own exertions do devote considerable attention to the criminal law, and attend the

criminal courts, in the hopes that, like many great

men who heretofore have adorned or now do adorn the bench, they may rise to be leaders of sessions, or of the crown court at the assizes, and from thence to the higher positions in the profession. But as soon as one counsel is appointed to conduct all the prosecutions this stimulus would be all but at an end; for every one knows how little inducement the defence of prisoners holds out, and how much mental anxiety it causes, in comparison with the prosecution of prisoners.

Such an appointment would at once destroy a great number of interests which now exist. Numbers of barristers are there wby regular attention and devotion to the crown court have, after years of laborious industry, raised themselves to be leaders of such courts, and are reaping the reward of their toil; whilst others are steadily following in their course, and some of them are gradually by these means working their way into civil business, and may be said to have gained a position in the profession which may ultimately lead to the highest ranks in it. But if a public prosecutor be appointed, these gentlemen will at once be deprived of all the rewards of their labour as far as they result from the conducting of prosecutions, and the very stepping-stones which their industry has won will be struck from under their feet.

Nothing is more essential to the well conduct of a court than a good attendance of an able and independent bar. Appoint a public prosecutor, and your criminal courts at the assizes will present the novel appearance of the judge, the public prosecutor, and perhaps some two or three defenders of prisoners, but no other counsel; and, as to the sessions, where the criminal business constitutes nearly the whole of the proceedings, counsel will generally cease to attend

them, for there will be no chance of their obtaining

business enough to pay their expenses.

The general rule at present is, that each prosecutor shall, if he please, select his own counsel and regulate the management of the case. And this rule is founded upon the common law, for by that law no person can sustain an action for an injury done to him by a felonious act until he has done his best to

prosecute and convict the offender. Besides which,
by the common law, restitution of stolen goods could
be obtained upon an appeal, which was the suit of
the party (3 Inst. 242), but not on an indictment,
because it is the suit of the king. The 21 Hen. 8,
c. 11, however, gave restitution of stolen goods
where any felon was attainted by reason of evidence
given by the prosecutor, or by any other by his pro-
curement. And the 7 & 8 Geo. 4, c. 29, s. 57, has
extended this provision. So in some cases of forcible
entry, restitution of the premises may be obtained. It
is clear, therefore, that in such cases the prosecutor
has a right to direct the prosecution. It would
require strong reasons to justify the taking away of
this right, and it cannot be doubted that there are
many cases in which the prosecutor would afford no
assistance whatever to the prosecution, if he were
deprived of the option of selecting his own counsel.
Many cases there are where a prosecutor will, in
confidence, reveal the secrets of the mode in which
his business is carried on to an attorney or counsel of
his own selection, where he would rather not insti-
tute a prosecution at all, than reveal them to a public

In considering this question it should also be remembered that it is a very different thing to determine what, in the first instance, would be the best to be done, from determining what is best to be done after a certain system has been long in operation, and the public have been impressed with the opinion that they have certain rights under it.

And it may well be that prosecutors, impressed with the idea of their right to conduct prosecutions, might, in England be indignant at that right being taken away; whilst prosecutors in 'Scotland may feel no annoyance at a public prosecutor, because in each country the public are impressed with the opinion that each system is right, and have been bred up from their childhood with such system in operation.

Juries are no favourers of prosecutions carried on by the Government; and it is extremely questionable whether they would look with even minds upon a public prosecutor. Nor is it difficult to conceive that, as in the instance of other public functionaries, so in the case of a public prosecutor, feelings might be excited and opinions might be entertained which might tend to prevent his services being beneficial to the public. At present if a counsel proves obnoxious the result is that another is employed.

So many objections present themselves to the appointment of a public prosecutor, independently of the question as to how far such large additional patronage should be given to the Crown, or the Ministry, and of the question how such patronage, if given, would be likely to be exercised, that it seems unnecessary to do more than to suggest that such questions would deserve consideration.


With regard to the appointment of district attorneys to conduct all prosecutions in England, there appear to be many objections

1. There seems no reason to doubt that the placing all prosecutions in the hands of any district attorney is neither called for by any necessity, nor would be productive of any advantage, and, on the contrary, would have a tendency to prevent prosecutors, in

New Statutes effecting Alterations in the Law.


some instances, from using those exertions which | NEW STATUTES EFFECTING ALTERthey now do towards obtaining a conviction. ATIONS IN THE LAW.

2. Nor would a district attorney, if appointed for a county, be competent to attend to all the prosecutions in such a county; and if such attorney were appointed for a smaller but considerable district, it is plain that he could not have that free and easy communication or acquaintance with the witnesses which the attorney of the prosecutor usually has.

3. Again, such attorneys would not hold so high and commanding a position as it is desirable for a district officer to hold in order to discharge the duties of superintendence and regulation which have been suggested. They must occasionally be witnesses, and must always instruct counsel, which would necessarily make them considered merely as attorneys for the prosecution; and the failure of any case from any omission would ever be attributed to them. Nor could they with any degree of propriety be looked upon as ministers of justice for the purpose of bringing the whole truth to light.

4. Another objection is that such a district agent must necessarily have a similar interest in obtaining a conviction to that of an attorney ordinarily employed, and this would prevent him from being a proper person either to make inquiries for the prisoner or under the direction of the court.

5. Again, the district agent proposed would have far too large a discretion vested in him as to the cases in which he might interfere; and such a wide discretion would be very likely to lead to dissatisfaction in its exercise, and the ends of justice might, and very probably would in some cases be defeated.

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Court may authorise dedication of parts of settled estates for roads, &c.

15. How sales and dedications are to be effected under the direction of the court.

16. Application by petition to exercise powers conferred by this act.




With whose consent such application to be made.
Petition may be granted without consent, saving

rights of non-consenting parties.

Notice of application be served on all trustees,

6. It is also physically impossible for one attorney and his clerk to prepare all the prosecutions required of him in such large districts as those suggested; but even if this were not so, the knowledge of the locality and of the witnesses, and the ready access to them, which so much tend to the efficient preparation of prosecutions (especially the most difficult ones), and which attorneys resident near the spot usually possess, could never be obtained in an equal degree by such a district agent as has been suggested. Nor can it admit of doubt, that any such district agent would not unfrequently be compelled to resort to the assistance of some local attorney, and it needs little foresight to perceive that the result would not be productive of any 22. Notice of the exercise of powers to be given by benefit.

7. Neither is it clear that such a district agent would meet with the sort of attention in the magistrates' courts which justices are required. The clerks to the generally attorneys of considerable experience in criminal investigations, and the justices might think them quite as competent, in every respect, as any district agent acting as an attorney. And the clerks themselves might not feel very well pleased to be interfered with by any such

district agent.

8. In the distribution of briefs by the district agent the greatest favouritism might prevail, and yet it might be impossible to produce any proof of it; indeed, when a district agent is directed to deliver briefs to counsel, "according to the best opinion which the agent shall be able to form " of the competency of counsel, he is in effect constituted the sole judge, without appeal, of the counsel who ought to be employed.



20. Notice of application to be given in newspapers. 21. No application under this act to be granted where a similar application has been rejected by Parliament.

the court.

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