reason that when a man asks questions, especially a man like the member for Perth, he does it to increase his knowledge; and what use was there in interrogating a witness like the Sheriff, who may be ranked among the class of experts, unless he could enlarge his interrogator's information? But we must say this for Mr Stirling, that if he heard substantially the socalled facts of this pamphlet, as the Sheriff says he did, as a veritable history of the Sheriff's office in Scotland, we are not in the least astonished that he should ask questions; for if the same statement had been made to almost any well-informed lawyer in Scotland, he would have been as much in want of more information, and as much disposed to ask questions, as Mr Stirling himself. For ourselves, when we read the pamphlet for the first time, we asked ourselves if it could be true, because, if true, we had hitherto been in a state of lamentable ignorance, and therefore were under deep obligations to the writer. But, recollecting ourselves a little, and recalling a number of things with which we thought ourselves pretty familiar, we came to the conclusion that, had we been in Mr Stirling's position, and with all our knowledge of the subject, we should have been perhaps even more disposed than he was to ask questions for farther information regarding the facts which bore the semblance of knowledge.

which they may be called on to discharge. They had this printed, and addressed to every member of Parliament, and they used every means to interest those over Scotland possessing any political power or influence, to forward the views set forth in the Memorial. Deputations were even sent to London, and it appears Mr Robertson was one so sent at all events. He was in London last winter, and found some difficulty with the members of the Lower House in getting them to understand who and what a Scotch Sheriff was, and in what his functions differed from those respectable gentlemen in London who annually gravely count a certain number of hob-nails before the Judges of England in Exchequer, or their brothers in the counties by whom, or in whose name, the pots and pans, tables and chairs of the impecunious lieges are wont to be carried off and sold. Being the last paper of this series, and bearing in its chronological position a striking resemblance to nearly the last paper in a Sheriff Court process, with which the Sheriff and we are somewhat familiar, we christened the Sheriff's Letter a reclaiming petition. The Sheriff, in dudgeon, retorts that we have stolen the idea, and that the true owner was the shrewd Davie Gellatly in Waverley. The gods have not made us witty, but it is some consolation to see that we have been the cause of wit in the Sheriff But if on this single point the worthy Sheriff is content to enact the character of Bailie M'Wheeble we for our part can have We published entire, in our last, Mr Robertson's not the least objection to represent the shrewd Davie letter, without note or comment, and for this courtesy Gellatly, for we rather think there was both truth and he has had the grace to thank us. The expressed wit in Davie's description of the Bailie's conversation. object of that letter was to answer two charges which We confess we were at first rather nettled by the we were alleged to have made in our original notice Sheriff's charges of want of truth and courtesy, and of the Sheriff's Letter to Mr Stirling. The first of both, it seems, towards Mr Stirling of Keir; but on re- these is, that we had charged the Sheriff with advoreading the Sheriff's letter, we instantly became calm. cating the same allowance of salary for all the SheriffFor it appears to be a characteristic of the Sheriff's Substitutes. Now, the paragraph from which the style to use forcible if not polished phrases of and con- Sheriff culls the sentence he cites, is an attempt on cerning his opponents. One specimen only we give; our part to represent the whole case of the Sheriffthe remainder will be found carefully collected by our Substitutes; and if he has a copy past him, and will contemporary, the Journal of Jurisprudence, in his turn to the index of our volume for last year, he will December number. At page 19 of the Sheriff's Letter find the Sheriffs' Memorial printed at length, and in we find those who underrate the status of the Sheriff- it the duties of the Scottish Sheriff-Substitutes are Substitutes described as "idle and not honest." Ver- elaborately and somewhat violently contrasted with bum sap. Need we say more? Now, a word as to those of the County Court Judges of England, and, our want of courtesy, and we have done with by contraries, their respective salaries. We were dealthese nuga. We ask the Sheriff to re-read with ing with the whole case of the Sheriff-Substitutes, and us his own pamphlet, at the top of page 4. His not Mr Robertson's Letter alone; and as he was one words are "They (that is, the pages of his Letter), of the memorialists, and in his pamphlet at pp. 25, they contain indeed little more than a connected 26, and 27, he largely quotes from and endorses it, summary of my answers to the questions lately put we were justified in considering his Letter as only to me in London by you, and which I have since part of their case. Now, it is no very violent supbeen able deliberately to revise and consider. I now position to make, that one cause, at least, for the address them to you as embodying the evidence Scottish Sheriff - Substitutes asking an increase of which I then gave; and I publish them as the salary, was the assumed disparity between their duties answers of a witness in reply to the questions of an and their salaries and those of the English Judges, examinator, to whom no sane person would venture and, at all events, that disparity is strongly dwelt on, to make a statement, the accuracy of which could be and extremely well put, doubtless to draw out the successfully called in question." well-known English love of fairness. It is well known that the salaries of the English County Court Judges are fixed by Act of Parliament, and are uniform within certain limits; but nowhere in any paper we have seen do the Sheriff-Substitutes fix any limit to which they wish their salaries raised and limited. That being so, we and others were left to conclude that the parallel between the Judges was to be made completenay, if anything, the Scottish Judges should be made the better of the two, for did they not perform more work, and were they not in jurisdiction superior to their English brethren? In the absence, therefore, of any limit, we maintain we were quite justified in

The Sheriff quotes us quite correctly when we expressed our surprise that Mr Stirling, a Scottish M.P. of great ability, should have needed farther information about the Sheriff Courts of Scotland; and this, it appears, showed our want of courtesy. Very well, be it so. As the Sheriff thinks he has detected us prigging from Davie Gellatly, we must, in this instance, frankly confess that the idea of the state of Mr Stirling's knowledge is not our own. We humbly admit that we stole it from the Sheriff himself, and the citation we have just made from his pamphlet clearly convicts us; for it stands to

THE

SCOTTISH LAW MAGAZINE

AND

SHERIFF COURT REPORTER.

REGISTER OF LAND RIGHTS.*

THE able Report of the Government Commission, | printed by order of Parliament last year, has been under the consideration of the Glasgow Faculty, and we have now their Report lying before us. For the reasons given at the outset by the Reporters, that the Government Report is of so elaborate a description that few of the profession can see it, the Faculty Report contains an excellent summary of its most useful portions, and for the same reason, we think we cannot do better than print the Report in full, recommending it strongly to the careful perusal of our readers:

In the Report of the Commissioners, appointed to inquire as to the state of the Registers of Land Rights in the Counties and Burghs of Scotland, which has been remitted to the Committee for consideration, the Commissioners, referring to the present system of Registration, express their conviction that, "viewed as a whole, it is the most complete and practically useful system which has yet been devised in any country." In this conviction the Committee participate, as they also do in the feeling of the Commissioners, that a system, the general excellence of which is admitted, should not be disturbed unnecessarily, or without the greatest caution, merely to secure something which may apparently be more consonant with theoretical perfection. It is now, however, more than thirty years since the state of the Registers began to occupy the attention of the Faculty, a Committee appointed in 1831 to consider the subject having characterised a search for incumbrances affecting lands in the Regality of Glasgow as " tedious, expensive, and unsatisfactory." The threefold increase which has since taken place, in the number of writs entering the particular Register of Sasines, in which the Faculty is more directly interested, has intensified the dissatisfaction of the profession and the public with the working of the present system. More than once the Faculty has suggested changes which appeared to be calculated to remove the causes of that dissatisfaction, and the Report of a Committee, appointed in 1856, and including the most eminent and experienced Members of Faculty, led to farther investigation, on the part of the legal bodies in Edinburgh, and to a general agitation of the subject, which resulted in the appointment, by Government, of the Commissioners, whose Report is now before the profession.

Every conveyancer is necessarily familiar with the statutory provisions under which our Registration system was begun, and has assumed its present shape, as well as with the general working of the system, and its familiar result in the form of searches for incumbrances. But, in the Report of the Commissioners, the Committee have found much that will, they believe, be new to the profession generally, as to the internal machinery of the Register House, by means whereof the Report of the Committee of the Faculty of Procurators in Glasgow on the Report of the Commissioners appointed to inquire as to the state of the Register of Land Rights in the Counties and Burghs of Scotland.

Adopted by the Faculty at a General Meeting on 7th January, 1864.

Registers are made to subserve the primary object of
publicity, and the business of searching-now become a
The Committee
distinct profession-is carried on.
think it unnecessary to encumber this Report with any
historical account of the system now in operation.
But, as unfortunately the Report of the Commissioners
cannot be placed in the hands of every Member of
Faculty, the Committee feel that the important recom-
mendations of the Commissioners, and their own views
regarding these recommendations, will not be fully under-
stood, and cannot be fairly weighed, without some pre-
fatory explanation of the appliances whereby the exami-
nation of the Registers is now facilitated, and of the
mode in which the process of making a search is con-
ducted. On a thorough understanding of this depend
any sound views of the improvements which should be
effected; for, as the chief object of our Registers of Land
Rights is, in the language of the Act 1693, to enable
"purchasers and creditors to know with whom they
might safely contract," the degree in which that object
is attained must be measured by the facility, economy,
and accuracy with which the contents of the Registers
can be ascertained. The Committee will, therefore, at
the outset and as briefly as possible explain

THE PRACTICAL WORKING OF THE PRESENT SYSTEM.

The Registers of Land Rights, which require to be searched, in order to ascertain the position of a particular property, are, the General and Particular Registers of Sasines applicable to extra-Burghal property-the Burgh Registers of Sasines applicable to property within Burghs-the General and Particular Registers of Inhibitions-and the Register of Abbreviates of Adjudications.

contains writs affecting lands, and ought to be, but in The Register of Interruptions of Prescription practice is not searched. The explanation, to be now given, does not apply to the Burgh Registers of Sasines, which are compiled and permanently retained in the Burghs, and to which the complicated expedients for facilitating searches in the Registers deposited in Edinburgh would be inapplicable.

In theory, all deeds presented for registration in the Registers of Sasines are entered in the relative Minute Books, at the time, and in the order of presentment, and the entry is signed by the presenter. In practice, in the General Register, the minutes are not completed for days, occasionally for weeks, after presentment, and they are signed by the actual presenter only in the rare case of his being the party to take out the deed after Registration. Till about forty years ago the Minute Books formed the only key to the Registers of Sasines, and by means of them all searches were made. with the subdivision of property, and the consequent increase in the number of writs, the labour of a search so conducted became almost intolerable, for, as the area of the Minute Book corresponds with the area of the Register, it followed that the position of a small property in a rural parish-say for example the parish of Kilmalcolm, the entries applicable to which were only

B

But

assuming that the minimum and maximum of the English Judges was also the wish and desire of our own Judges. How that was to be done was rather a ticklish question. The Memorial to Government had not been well received. It had the aspect of a money question, and as the financial figure of our judicial establishments has of late years rather increased in the annual estimates, it is extremely probable that the Chancellor of the Exchequer had his attention called to the desired increase, and-and-in short, he didn't like it at all. So, in the Memorial addressed to Parliament, this difficulty was met. The Sheriffs-Principal or Sheriffs-Depute might be dispensed with-this office was almost a sinecure. There were twentythree of these Judges, having an average salary of £650 per annum, while there are fifty-five SheriffSubstitutes, having an average salary of £627 per It was a neat tour de force of finance. Abolish the office of Sheriff, and about a-half might be added to the salaries of the remaining Judges. This would checkmate the wary Chancellor, and his Scottish judicial estimates would remain as at present. On this hint the Sheriff spoke to Mr Stirling in London, and on his return to Scotland, deliberately wrote, reconsidered, and revised his statement, and sent it forth in the shape of a Letter to his interrogator. The whole aim of his pamphlet is to prove, not only that-applications for fugæ warrants, cessio, sentences, sequesthe Sheriffs are little more than sinecurists, but that the only working County Judges are the Sheriff-Substitutes. Such is the view which the Sheriff-Substitutes' case presents itself to us. If we have misapprehended or misrepresented it, it is not without an honest endeavour, whatever Mr Robertson may think, to understand it, and we know that we are not solitary in the opinion to which we have come.

circumstances in a great measure inapplicable, and one that, if given effect to, would operate most unjustly, and for very obvious reasons.

First. The litigants, within a jurisdiction where the causes are few in number, have the same title to a sound judgment as in the jurisdictions where they are more numerous, but if so, you must have as well qualified lawyers for the one as the other, and why should the same qualifications in one man be remunerated differently from another?

Second. It must be kept in view, that no matter whether a Sheriff-Substitute has a large amount of work or not, he cannot employ his unoccupied time in any other profitable work, and Government debars him from engaging in any other business-even from arbitrations; and if his whole time is thus lost to him by his office, as a means of adding to his income, because his employers so order it, there is as much reason why he should be remunerated for that lost time as if it were wholly taken up with official duties.

annum.

In conclusion, we wish it to be distinctly understood that we have not written on this question as hostile to an increase in the Sheriff-Substitutes' salaries; on the contrary, from the first we have said, and we repeat that they ought to be well remunerated. The office must be filled by learned and able men-men abreast if not ahead of the learning and intelligence rising around them, and we cannot hope to get men either able or learned unless we offer sufficient rewards. What is a sufficient reward, in the peculiar condition of Scotland and its bar, is a question surrounded with difficulties. But it is a mistake rather than a solution to ask that Scotland shall be treated as if it were England; and it is a still greater blunder to ask that the office of SheriffDepute shall be abolished, in the belief that that change would elevate the status, and increase the salaries of the Sheriff-Substitutes.

We have received the following communication on the same subject from a Sheriff-Substitute, setting forth some aspects of the case not yet, perhaps, sufficiently considered; and we willingly give it insertion. We only wish the Sheriff had empowered us to add his name:

(To the Editor of the Scottish Law Magazine.) SIR,-Allow me, as one of the Sheriff-Substitutes who cannot complain of being overworked, to make a few remarks upon Mr Robertson's letter which appeared in your December number.

He there maintains the principle, and it is in accordance with the view you have yourself advocated, that the salaries of the Sheriffs-Substitute should be proportioned to the work they have to do, and that this should be the main rule for determining the amount. I conceive this principle, on the other hand, to be in the

Third. It is a great mistake to suppose that in those jurisdictions where statistics would make it appear that the least work is done, there is in truth the least for the Sheriff to do. In the larger districts, where work of all kinds is constant and regular, you have subordinate officials much better acquainted with their duties. They are well up to forms, and the Sheriff has no trouble as regards the routine of business. In the smaller districts business occurs in the least degree out of the common run it is quite the reverse. There, whenever a piece of trations, and the like, with all the varied work under the hundred different Acts of Parliament-he has to administer. The Sheriff has not only to apply the law, but take most of the trouble of searching out and furnishing the forms thus adding very largely to his own proper business in such cases.

I do not mean to argue that the extent of work should be wholly left out of view, but what I would maintain is, that where that consideration is let in, it should be as the exception, not the rule. In the very large towns it should certainly be taken into view, and have great weight; but when you put aside these, I think I have shown very good reasons why it should tell

but little.

Allow me to add that I do not think, in your own observations upon the claims of our body, you have at all given due weight to the fact that the County Court Judges in England are remunerated so differently from the County Judges in Scotland, having minimum salaries considerably more than double, and being allowed to practise professionally besides, while they maintain that a Scotch litigant is to have worse law have less important duties to perform. than his countryman across the border? To furnish that you must have men of equal qualifications. But would you say that the head that supplies it is to do it at less than half the cost to the country, simply because the wearer has it on Scotch shoulders in place of English?

I

You would not

presume you are a professional man: would you think it just if Government employed you to do a piece of agency in Scotland, and an attorney in England to do another of a like nature, and paid the latter a double rate of fees as compared with yours?

The fact is, the social position of our body has been raised too high by late changes to be maintained on the present minimum salaries. That position should either have been kept as it was, or the minimum made higher. And it is not merely the present occupants of office that will be found dissatisfied; the feeling will continue, a chronic soreness, until some change is made.

As a body, I believe we would by no means look for at all so high a minimum as the County Judges in England. But we at least feel the two should be made to approximate more nearly-the one at present being considerably more than double the other. The County Court Judge has £1200 as a minimum-the Substitutes, I think, point at £400 less. Is that immoderate? Your obedient servant,

S. S.

THE

SCOTTISH LAW MAGAZINE

AND

SHERIFF COURT
COURT REPORTER.

REGISTER OF LAND RIGHTS.*

THE able Report of the Government Commission, | printed by order of Parliament last year, has been under the consideration of the Glasgow Faculty, and we have now their Report lying before us. For the reasons given at the outset by the Reporters, that the Government Report is of so elaborate a description that few of the profession can see it, the Faculty Report contains an excellent summary of its most useful portions, and for the same reason, we think we cannot do better than print the Report in full, recommending it strongly to the careful perusal of our readers:—

In the Report of the Commissioners, appointed to inquire as to the state of the Registers of Land Rights in the Counties and Burghs of Scotland, which has been remitted to the Committee for consideration, the Commissioners, referring to the present system of Registration, express their conviction that, "viewed as a whole, it is the most complete and practically useful system which has yet been devised in any country." In this conviction the Committee participate, as they also do in the feeling of the Commissioners, that a system, the general excellence of which is admitted, should not be disturbed unnecessarily, or without the greatest caution, merely to secure something which may apparently be more consonant with theoretical perfection. It is now, however, more than thirty years since the state of the Registers began to occupy the attention of the Faculty, a Committee appointed in 1831 to consider the subject having characterised a search for incumbrances affecting lands in the Regality of Glasgow as "tedious, expensive, and unsatisfactory." The threefold increase which has since taken place, in the number of writs entering the particular Register of Sasines, in which the Faculty is more directly interested, has intensified the dissatisfaction of the profession and the public with the working of the present system. More than once the Faculty has suggested changes which appeared to be calculated to remove the causes of that dissatisfaction, and the Report of a Committee, appointed in 1856, and including the most eminent and experienced Members of Faculty, led to farther investigation, on the part of the legal bodies in Edinburgh, and to a general agitation of the subject, which resulted in the appointment, by Government, of the Commissioners, whose Report is now before the profession.

Every conveyancer is necessarily familiar with the statutory provisions under which our Registration system was begun, and has assumed its present shape, as well as with the general working of the system, and its familiar result in the form of searches for incumbrances. But, in the Report of the Commissioners, the Committee have found much that will, they believe, be new to the profession generally, as to the internal machinery of the Register House, by means whereof the Report of the Committee of the Faculty of Procurators in Glasgow on the Report of the Commissioners appointed to inquire as to the state of the Register of Land Rights in the Counties and Burghs of Scotland.

Adopted by the Faculty at a General Meeting on 7th January, 1864.

Registers are made to subserve the primary object of
publicity, and the business of searching-now become a
The Committee
distinct profession-is carried on.
think it unnecessary to encumber this Report with any
historical account of the system now in operation.
But, as unfortunately the Report of the Commissioners
cannot be placed in the hands of every Member of
Faculty, the Committee feel that the important recom-
mendations of the Commissioners, and their own views
regarding these recommendations, will not be fully under-
stood, and cannot be fairly weighed, without some pre-
fatory explanation of the appliances whereby the exami-
nation of the Registers is now facilitated, and of the
mode in which the process of making a search is con-
ducted. On a thorough understanding of this depend
any sound views of the improvements which should be
effected; for, as the chief object of our Registers of Land
Rights is, in the language of the Act 1693, to enable
"purchasers and creditors to know with whom they
might safely contract," the degree in which that object
is attained must be measured by the facility, economy,
and accuracy with which the contents of the Registers
can be ascertained. The Committee will, therefore, at
the outset and as briefly as possible explain

THE PRACTICAL WORKING OF THE PRESENT SYSTEM.

searched, in order to ascertain the position of a particular The Registers of Land Rights, which require to be property, are, the General and Particular Registers of Burgh Registers of Sasines applicable to property within Sasines applicable to extra-Burghal property-the Burghs-the General and Particular Registers of Inhibitions-and the Register of Abbreviates of Adjudications.

contains writs affecting lands, and ought to be, but in The Register of Interruptions of Prescription practice is not searched. The explanation, to be now given, does not apply to the Burgh Registers of Sasines, which are compiled and permanently retained in the Burghs, and to which the complicated expedients for facilitating searches in the Registers deposited in Edinburgh would be inapplicable.

In theory, all deeds presented for registration in the Registers of Sasines are entered in the relative Minute Books, at the time, and in the order of presentment, and the entry is signed by the presenter. In practice, in the General Register, the minutes are not completed they are signed by the actual presenter only in the rare for days, occasionally for weeks, after presentment, and case of his being the party to take out the deed after Registration. Till about forty years ago the Minute Books formed the only key to the Registers of Sasines, and by means of them all searches were made. But with the subdivision of property, and the consequent increase in the number of writs, the labour of a search so conducted became almost intolerable, for, as the area of the Minute Book corresponds with the area of the Register, it followed that the position of a small property in a rural parish-say for example the parish of Kilmalcolm, the entries applicable to which were only

B