hend the said J.K., and convey him to the Prison of [Signature of Judge.] and Imprisonment. carded, and if money is to enter into the question at all, it ought to be made a fiscal question, and left to the government. Heavy stamps are now payable by all entrants in the three kingdoms, but we are not aware that in England, Ireland, and with few exceptions in Scotland, the candidate is mulcted in any farther sum as a condition precedent to his admission. 5. Conviction for a Penalty to be recovered by Poinding At present, under the Act of Sederunt, a procurator once admitted and practising may go where he pleases in Scotland, but our contemporary seems to think that a residential test ought to be adopted. For instance, he would not allow a procurator in Glasgow to enter and plead before the Courts at Airdrie, Hamilton, or Lanark, although these latter Courts are in the same county with Glasgow, and that only because the procurator is resident in Glasgow. It is well known to the profession in Glasgow that a considerable proportion of the Court business of the Middle and Upper Wards of that great county goes, directly or indirectly, through the hands of Glasgow procurators, many of whom are not procurators before these Courts. The direct effect of this proposal may be judged of by this fact. Our contemporary may now know that his fears are vain and that his suggestions are not at all novelties. And conservative though lawyers are asserted to be, we hope that the procurators of Scotland will not permit themselves to be tied up into little knots and bundles, and call themselves close corporations, resisting every approach of improvement and liberality; desirous rather to be great in their own locality, than the honoured members of a great national incorporation, each reflecting honour upon the other, and each striving to advance the science, in the administration of which he is a humble student and helper, and maintaining the character and honour of the profession, so as to win the esteem and maintain the confidence of the public. The Justices [or Justice, or Sheriff, or Magistrate, in respect of the Judicial Confession of the said J.K. [or of Contravention [or Offence] charged [or state to what the Evidence adduced], convict the said J.K. of the Extent he is guilty], and therefore adjudge him to forfeit and pay the sum of £ of Penalty [or of modified Penalty, where there is Power to modify], [with the sum of £ of Expenses, where Expenses may be awarded,] and ordain instant Execution by Poinding and Sale, and Imprisonment for the Period of Days, in default of immediate Payment [or if Time is allowed, say, within Days from this Date]; grant Warrant to Officers of Court, in default of Payment of the said Sum [or Sums], for immediate Poinding of the Goods and Effects of the said J.K., and summary sale thereof on the Expiration of not less than Forty-eight Hours after such Poinding; appoint a Return of such Poinding and Sale to be reported within Eight Days from this Date; and in default of Payment grant Warrant to Officers of Court to apprehend the said J.K., and convey him to the Prison of and to the Keeper thereof to receive and detain him for the Period of from the Date of his Imprisonment, unless the said Sum [or Sums], together with the Expense of Poinding, if any, shall be sooner paid, or Liberation shall be granted. Days 6. Judgment for a Penalty recoverable by Diligence. The Justices [or Justice, or Sheriff, or Magistrate], in respect of the Judicial Confession of the said J.K. [or of the Evidence adduced], convict the said J.K. of the Contravention [or Offence] charged [or state_to_what Extent he is guilty], and therefore adjudge him to forfeit and pay the Sum of £ of Penalty [or modified Penalty, where there is Power to modify], of £ and also find the said J.K. liable in £ of Expenses to the Complainer, and ordain instant Execution by Arrestment, and also Execution by Poinding [and Imprisonment, where there is Power to imprison]; grant Warrant to Officers of Court to arrest all Debts and Sums of Money owing to the said J.K., and [if Time is allowed, add, in default of Payment within from this Date], to Poind his Goods and Effects, and to sell the same at the Expiration of not less than Fortyeight Hours after such Poinding, without further Notice or Warrant; [where the Act authorises Imprisonment, add], and appoint a Return or Execution of such Poinding and Sale to be made within Days from the Expiration of the Period hereby allowed for Payment, Days from the Date of his Imprisonment. under Certification of Imprisonment [if for a Term, Keeper thereof to receive and detain him for the Period specify the Term], in default of Payment or Recovery of of the said Sums with the Expenses of Diligence before the Time allowed for such Report. [Signature of Judges or Judge.] Warrant of Imprisonment to be granted upon Officer's Report. The Justice [or Sheriff, or Magistrate], in respect it appears that the Sums mentioned in the foregoing Judgment, with the Expenses of Diligence, have not been paid or recovered under the said Judgment in whole or in part, grants Warrant to Officers of Court to apprehend the said J.K., and convey him to the Prison of and to the Keeper thereof to receive and detain him until liberated in due Course of Law [or, if the Imprisonment is for a Term, say, for the Period of Days from the Date of his Imprisonment, for the Expenses of [Signature of Judge.] unless the said Sums, with £ Diligence, shall be sooner paid.] 7. Judgment and Warrant Ad factum præstandum, The Justices [or Justice, or Sheriff, or Magistrate], in respect of the Judicial Confession of the said J.K. [or of the Evidence adduced], find the Complaint proven [or state to what Extent it is proven, or state any other Findings that may be considered necessary], and ordain the said J.K. to [here state the Matter required to be done], under Certification that if, upon a Copy of this Judgment being served upon the said J.K. by an Officer of Court, he shall neglect or refuse to obey the same within the Period of after such Service, he shall be imprisoned for the Period of Days: Find the said J.K. liable in £ of Expenses to the complainer, and failing immediate Payment thereof [or, if Time be allowed, within Days from this Date, say], grant Warrant for Recovery of the said Sum by Poinding of his Goods and Effects, and summary Sale thereof, etc., [as in No. 4 of this Schedule.] [Signature of Judge.] [Note.-A_Warrant Ad factum præstandum in the above Form may, if required by the Act, be combined with a Conviction or Judgment for a Penalty. Where Judgment is given for the Expenses of obtaining a Warrant Ad factum præstandum recoverable by Poinding and Sale, and Imprisonment in default, the Proceedings shall be as nearly as possible in conformity with the Forms above described for the Recovery of Penalties and Expenses. If the Expenses are declared to be recoverable by ordinary Diligence, or by Arrestment and Poinding, the Warrant and Procedure will be as in No. 6.] 8. Judgment of Absolvitor or Dismissal. The Justices [or Justice, or Sheriff, or Magistrate], assoilzie the within-designed J.K. from the foregoing Complaint [or dismiss the Complaint]. [If an Award of Expenses be competent, add,] Find the within-designed A.B., Complainer, liable to the said J.K. in the Sum of £ of Expenses, and decern and ordain instant Execution therefor by Arrestment, and also Execution by Poinding and Sale and Imprisonment, if the same be competent, after a Charge of Fifteen free Days: Grant Warrant, etc. [as in No. 6, omitting Warrant of Imprisonment when incompetent.] [Signature of Judges or Judge.] 66 66 66 ACTS OF THE LAST SESSION OF PARLIAMENT. CHAP. 106. An Act to authorise the Lords Commissioners of the Treasury to make provision in regard to the Salaries of certain Sheriffs-Substitute in Scotland.-29th July, 1864. "WHEREAS, by an Act passed in the sixteenth and "seventeenth years of the reign of Her Majesty, chapter eighty, it was provided that it should be lawful to grant "to any salaried Sheriff-Substitute then in office, or his successor, or to any Sheriff-Substitute thereafter to be appointed under the said Act, such salary as to the "Commissioners of Her Majesty's Treasury might seem meet, the same not in any case exceeding one thousand pounds by the year, and not less than five hundred "pounds by the year:" Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Com、 66 66 mons, in this present Parliament assembled, and by the authority of the same, as follows: 1. It shall be lawful for the Lords Commissioners of Review. Her Majesty's Treasury, if they shall think fit, to in- TREATISE ON THE PAROCHIAL ECCLESIASTICAL LAW crease the salaries of two of the Sheriffs-Substitute acting in the county of Midlothian, and two of the Sheriffs-Substitute acting in the county of Lanark, to any amount not exceeding fourteen hundred pounds by the year, anything in the said Act notwithstanding. 2. That it shall be lawful for the Lords Commissioners of Her Majesty's Treasury to provide for the salary of the Sheriff in Chancery in Scotland, in like manner as they are empowered to make provision for the salaries of the other Sheriffs in Scotland, anything in any Act of Parliament notwithstanding. NOTE.-It is an old and venerable custom to designate certain laws by the names of the person or persons who have promoted them, or who have been chiefly connected with their enactment; and in place of the long and involved titles of our modern laws it is often convenient also to use a short title. With this idea probably "wambling in his head," as a certain old Scottish Judge would have said, another Judge, when recently speaking of the legislative work of the Session, called this short Act, "THE SWEET ACT" of the Session. We have no objections to the name, although there are some Sheriffs and Sheriffs-Substitute who may perhaps object to the Act itself. But honi soit qui mal y pense. CHAP. 110. An Act for the Amendment of the Law relating to Mitigation of Penalties.-29th July, 1864. "WHEREAS, by various public Acts of Parliament, "penalties are imposed in respect of certain offences, and "i is provided that such penalties are not to be reduced "below the limits in such acts specified; and whereas the "provisions of the said public Acts are contravened by "special enactments introduced into certain local Acts, "empowering the Justices or Court having cognisance "of offences in certain localities to mitigate all penalties "in respect of such offences; and whereas it is expedient "to prevent such contravention as aforesaid of the "general law:" Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. Where any public Act of Parliament provides that in respect of any offence therein mentioned, a penalty is to be imposed of not less than a particular sum of money, or of not less than a certain term of imprisonment, or other punishment therein specified, it shall not be lawful for the Justices or Court having cognisance of such offence to mitigate such penalty below the limit specified in that Act of Parliament, in pursuance of any power of mitigating penalties conferred on such Justices or Court by any local or private Act of Parliament. 2. This Act may be cited for all purposes as "The Limited Penalties' Act, 1864." OF SCOTLAND. By JOHN M. DUNCAN, Advocate, Author of "Digest of Entail Cases," and "Manual of Summary Entail Porcedure." Edinburgh: Bell & Bradfute. And this The TWENTY years have elapsed since Mr Dunlop's book on Parochial Law was published, and we all know what havoc such a time makes on all law books. branch of the law has not escaped the changes incident to the efflux of time, or, let us say, has benefited by various enactments and former cases farther illustrated, explained, or expanded by new decisions. Very few lawyers follow the laborious though useful practice of posting up their books by summaries of cases and Acts of Parliament. They prefer leaving it to some laborious lawyer like Mr Duncan to do this for them in the shape of a new book, or a new edition of an old one. Few branches of law touch us all so nearly as parochial law, whether simply as citizens, or as schoolmasters, clergymen, or proprietors and patrons. The foundation idea of the parochial economy is ecclesiastical—a space sufficiently large for the management of a clergyman for the cure of the souls resident within the bounds-churches must then be built-manses of course follow, with their customable sustentation in the shape of tithes, glebes, minister's grass, etc. These temporalities require to be regulated and fixed. Laws are enacted to enforce order, and decency, and equal contributions from those on whom the law has imposed the duty of building and maintaining these fabrics and paying the tithes. Parochial Church Courts require regulation. The Kirk Session is in some respects an important branch of the Established Church, having secular as well as moral and ecclesiastical duties to perform. The labour connected with the management of the poor formerly in the hands of the Kirk Session is now greatly curtailed; but Kirk Sessions have still delicate and useful duties to perform in this department. schools and schoolmasters are still under the management of the parochial authorities, though many are desirous that education should be placed in other hands and more liberally dealt with. And finally we have the kirk-yard, where "the rude forefathers of the hamlet sleep," and from whom the rich and the noble are no An appendix of statutes, Acts of longer separated. Sederunt, and an index of cases is added. Of all these topics Mr Duncan's book treats, and treats copiously and lucidly, bringing down the law to the latest enactment and the last decision, so that the patron, the clergyman, the schoolmaster, the parishioner, and specially the lawyer will find in Mr Duncan's pages every point which has been raised, illustrated by cases, and discussed intelligently and learnedly. We recommend Mr Duncan's book as an honest and faithful guide in nearly every difficult question which can occur in parochial law, The REPORTS OF CASES DECIDED IN THE SHERIFF COURTS OF SCOTLAND. 4TH DECEMBER, 1863. SHERIFF COURT, LANARKSHIRE-GLASGOW. (SHERIFFS SIR A. ALISON AND BELL.) A. v. B. given in, and remits the same to the auditor of Court to tax and report, and decerns. NOTE. Had the defender merely held the subjects in trust under his two dispositions 20th Oct., 1858, and 19th March, 1859, the Sheriff would have been inclined to have adhered to the able and articulate Interlocutor of the Sheriff-Substitute under review, which is founded mainly on the authority of the case of Selby's Heirs v. Jolly, 5th June, 1795, the rubric of which is "a person holding an heritable right in trust, and having a right of retention over it for debts owing of tradesmen for meliorations made upon it by desire to him by the proprietor, is not liable for the claims of the latter"-that is, the proprietor. The Sheriff apprehends there can be no doubt that that decision was well founded, and would probably be adhered to by the Court in similar circumstances. But the species facti in that case, and the principle in law applicable to it, are not analogous to what is here represented, but a contrast to the present case. decision was to this effect, that a trustee holding a property in trust for others is not liable for the cost of meliorations, or Disposition-Absolute-In security.-Certain repairs were made on house property at the request of parties who had been formerly the owners, and were still believed to be so by the tradesman. Bills were granted by the late owners for the repairs, but they became insolvent before the bills became due, and they were ultimately dishonoured. In an action by the tradesman against the party to whom the property had been absolutely disponed-Held (reversing the Interlocutor of the Sheriff-Substitute) that the party holding the pro-repairs, ordered by the proprietor. The trustee was there the perty under an ex facie absolute disposition was liable for the repairs, and not the former owners though they were the employers. SEE ante, page 102, Vol. II. The Interlocutor reported was appealed, and parties' procurators having been heard, the Sheriff pronounced the following judgment: Having heard parties' procurators under the pursuer's appeal upon the Interlocutor appealed against, and considered the proof adduced, productions, and whole process, adheres to the said Interlocutor in so far as the findings in point of fact are concerned, but on the questions of law involved in the case, for the reasons stated in the following Note, alters the Interlocutor complained of, Finds the liability of the defender for the balance of the account sued for established in law, by the admitted facts that he is feudally vested in the subjects as absolute proprietor, and was so at the time the work was executed on his property, payment of which is now sued for; that though he did not himself give the orders for the execution of the work, yet he was cognisant of the orders having been given by the N-s, from whom he acquired the property, and made no objection to the work or repairs going on; that the defender holds the property, not in trust for others, but mainly for himself, in security of his own advances; that the property has been greatly enhanced in value by the operations of the pursuer, for payment of the balance of which payment is now sought, and that it is a general principle of law, nemo debit locupletari cum alium jactura: Therefore repels the defences, decerns against the defender for the sum of £74 168 6d, being the balance due of the pursuer's account for work done after the defender had become proprietor of the tenement, with interest on the said sum as libelled, the pursuer being bound simul et semel with receiving payment of the sums decerned for to deliver up any unpaid bills in his hands for the cost of the work in question cancelled: Finds the pursuer entitled to expenses, appoints an account thereof to be That defender, and the question was, whether he was responsible for what the proprietor had ordered. But what is the species facti here? The defender in the present case is not the trustee, but the proprietor of the subjects; and the question is, whether he is not responsible for the cost of meliorations executed under his eye, though ordered by the former proprietors who had become insolvent, and conveyed the property to the defender. The pursuer says he executed the work on the credit of the property, on the order of the N-s, the former proprietors, and whom he believed still to be so. The work was done under the defender's eye, he having taken possession of the property, and intimated to the tenants to pay their rents to him. The value of the property was greatly enhanced by the pursuer's operations. It is even said that the rental was thereby raised from £250 to £340 a year. The whole of this increase accrues to, and becomes the property of the defender, who, under his disposition ex facie absolute excludes every other party from participating in or attaching the rents. It may be quite true, and indeed was admitted, that the disposition was granted in security of advances only. But these advances or debts are mainly, if not wholly, due to the defender himself, who obtained the absolute disposition just that he might be secured in payment of it. It was even said at the debate that the debts affecting the property were so large that the rents barely sufficed to pay their interest. If this be the case, the addition made to the rental through the pursuer's operations is a direct gain to the defender; and it is a general principle of law that no one is to be enriched by the loss of another, and that principle would be directly violated if the pursuer were to be cut out of all claim for payment of operations by which the defender's property was materially benefited. The present case is, therefore, not parallel to, but directly the reverse of, the case of Selby's heirs, in 1795, relied on by the Sheriff-Substitute. For what that decision found was that a trustee, holding a property for others, was not responsible for the cost of meliorations upon it, ordered by the proprietor; whercas, what the defender here contends for is that a creditor who has become absolute proprietor of a property, in security of advances A made by him, is not responsible for the cost of improvements N Alt. ALEXANDER WATT. 7TH DECEMBER, 1863. proof and productions, and having heard parties' procurators thereon, Finds that the defender admits on record that he employed the pursuer to do professional work for him: Finds that the defender has not proved that the pursuer assured him that the whole would not exceed £20, but he has proved, by the productions lodged by him on 27th May, 1862, that he had, before this action was raised, paid the pursuer sums to the amount of £7 15s, on account of said work, and the pursuer has acknowledged said payments, by the minute of restriction lodged by him on 25th June, 1862: Finds that the auditors having struck off £11 178 4d from an account of £43 48 3d, instructs the defender's averment that the account is greatly overcharged: Finds, that after deducting the £7 15s paid to account before this action was raised, and £12 5s received by the pursuer under the interim decree, of date 29th October, 1862, from £31 16s 11d, being the amount of the pursuer's account as taxed, there remains a balance of £11 16s 11d still due by the defender to the pursuer. Therefore decerns against the defender for said sum of £11 16s 11d, with interest on said sum, and also on said sum of £12 5s, in terms of the conclusions of the summons: Finds the pursuer entitled to expenses, subject to modification, in respect of his failure to credit the defender with the sums paid, and also in respect of the large sum struck off in taxation: Modifies the same to two-thirds of the taxed amount, and appoints an account to be given in, and remits the same, when lodged, to the auditor of Court to tax and report, and decerns. This Interlocutor was appealed, and after a hearing the Sheriff pronounced the following judgment: Having heard parties' procurators under the defender's appeal upon the Interlocutor appealed against, and made avizandum, and considered the closed record, proof adduced, productions, and whole process, Finds that the present is an action brought by the pursuer for payment of a professional account of £43 48 3d, for law business done, and moneys disbursed by him for the defender, the professional charges being £38 17s, and the outlay £4 7s 3d, and relating almost entirely to a process of cessio raised by the defender, and conducted by the pursuer: Finds that the account libelled on, ends on 16th April, 1861, and although the present action was not raised and served on the defender till 13th May, 1862, or thirteen months thereafter, yet no copy of the account was rendered to the defender till a day or two before the action was served and at a time when it is said he was absent from home: Finds that the defender, in his minute of defence, admits that he employed the pursuer to do the business charged for, but only upon the assurance that the whole would not exceed £20, and that to account thereof, the defender had paid £7 15s, which was not given credit for in the summons, and separatim that the account was greatly overcharged: Finds that on 21st May, 1862, the defender's minute of defence was lodged, and on 25th June, following, a minute was lodged for the pursuer, admitting the £7 15s paid to account, and restricted the summons accordingly; and on 29th October, 1862, decree was pronounced ad interim against the defender for £12 5s, being the balance of the admitted amount of £20, after deducting the £7 158 paid to account, which sum of £12 5s is admitted to have since been paid: Finds that the account was remitted to the auditor for taxation, and that the auditor has taxed off the professional charges, amounting to £38 17s, the sum in all of £11 78 4d, and on account of this overcharge, and the pursuer's failure to give credit in the summons for the £7 15s paid to account, the defender maintains that he is not only not liable to the pursuer in expenses, but that he is entitled to his expenses: Finds it admitted by the defender, that in point of law he has failed in proving the alleged agreement by the pursuer to do the whole work for a sum not exceeding £20, as there is no evidence of it except the defender's own oath, which is directly contradicted by that of the pursuer: Finds that, in these circumstances, the defender is liable for the balance of the account, as taxed by the auditor, after deducting the foresaid sum of £7 15s paid to account, and the £12 5s contained in the interim decree, being £11 16s 11d, as contained in the Interlocutor under review: Finds, however, that in the circumstances which here occur, the defender is entitled to modified expenses of process against the pursuer, in respect, on the one hand, the account sued for has been found to be so much overcharged, and the pursuer failed to give Having resumed consideration of this process, with the credit in the summons before the action was brought into SHERIFF COURT, LANARKSHIRE-GLASGOW. (SHERIFFS SIR A. ALISON AND SMITH.) A v. B. Agent and Client-Taxation of Account-Expenses.In an action by an agent for a professional account, upwards of one third was taxed off. Following the spirit of the English rule, where expenses are disallowed if one sixth is taxed off, and the case of Clyne v. Spence, 7th December, 1827, where one fifth was taxed off, and expenses disallowed, one half costs was only allowed to the pursuer. A, a procurator in Glasgow, raised this action against a client for payment of a professional account. The account was sent to the auditor for taxation; thereafter, parties' procurators having been heard, the Sheriff-Substitute pronounced the following Interlocutor: |