Page images
[ocr errors]

sion. It bears that the "Sheriff refused an application for admission as a procurator by a person who had passed the usual examinations and been found qualified, but who had served an apprenticeship with a writer in Oban, who, although a notary public, a procurator-fiscal, and a general law agent, was not a procurator before a Sheriff Court." The decision turned upon the 4th sec. of the statute, and the 157th sec. of the A. of S., 11th July 1839. The latter allows as a qualification apprenticeship to, among others, "a procurator before any Sheriff Court in Scotland or Court of Royal Burgh ;" and the question was, whether the fact that the master in this case was public prosecutor before the Justices of Peace and before the magistrates of Oban, which is not a royal burgh, made him "a competent master" in the sense of the Act of Parliament and Act of Sederunt. It was contended that the Act was to be liberally construed, and that the position of the master in this case was really equivalent to that of the fiscal of a royal burgh. The Sheriff, however, held that to admit the gentleman claiming would be a violation of the Act.

Fees Payable by Stamps.-The Act 29 and 30 Vict. c. 76, makes it lawful for the Commissioners of the Treasury to direct that all fees payable to any public department or office connected with the public service, or to the officers thereof, shall be collected by means of stamps, impressed or adhesive. A notice has been published in terms of the Act, in the London Gazette, that after Dec. 31, 1866, the fees for the time payable in the Companies' Registration Office, or to the officers thereof, shall be so collected. Why should not Fee Fund dues be collected in this way, if that tax on justice is still to continue ?

A Dialogue in Court.—(Thoms v. Thoms) :-

Ld. P.-Dean of Faculty, have you anything to say?

D. of F.-We have nothing further to say than we have said already. L. P.-Then you don't want any proof?

D. F.-We have given in a minute.

that do not ask any proof?

L. P.-I understand
to say
D. F.-That is what our minute says.


L. P.-Then the deeds have been produced by the defender. You desire no further proof, Mr Balfour?

Balfour-No; these decds are put in as our proof.

L. P.-Then we will make an interlocutor to that effect, that the pursuer states that all the proof he desires is now in, that he desires no further proof, and that the defenders desire no proof. I suppose parties will be ready to go on to-day. Is there to be any further argument?

D. F.-I understood that the argument had been concluded.

Ld. Deas—That may or may not be. We did not know, at least I did not know till now, that there was to be no further proof, and all I shall say is, that I think the argument may be very different on that footing from what it might have been on another.

Ld. Ardmillan-I thought the whole argument had proceeded hitherto on the assumption that there was to be no further proof. Whatever may turn out afterwards, the case before us at present which we have to dispose of is a case on the footing that there is to be no further proof excepting these documents which have now been produced.

Mr Young-The pursuer not only argued on that assumption, but maintained that further proof was incompetent, and I answered him on that footing

(Meantime the Lord President has been writing proposed interlocutor, and now reads it to the Court.) D. F'.—My Lord, we don't say

L. P.—But you say you don't want a proof.
D. F.—What we have said is that we don't ask any proof.
I., P.-Do


desire a proof or do you not ? D. F.-We have nothing more to say.

L. P.-But I am entitled to an answer to that question, Mr Dean. Do you desire a proof or do you not ? ' If you do not I must enter on record that you do not.

D. F.- What our desires may be we don't think it necessary to say. All that your Lordships can take cognisance of is what we state at the bar, that we move for. We don't move for any proof.

L. P.-But I am entitled to ask you whether you wish for a proof?
D. F.-I

say I have no wish on that subject beyond what I have said. L. P.-If


you desire a proof, I must enter on record that you don't desire a proof.

D. F.—(Interrupting) —That I have not said that I desire a proof. That is all your Lordship can say.

L. P.-I must hold the thing as concluded now or as not concluded, and I think it will be concluded if you don't want a proof.

D. F.-We have simply said that we don't ask for a proof, and on that we stand. I don't think there is anything further that can be reasonably asked of us. All we ask is that our statement be put in our own words. As to going beyond that statement, I entirely decline to do it, and with all deference I doubt your Lordship's power to make us say that which we have not said.

L. P.—I don't desire to make you say anything. I only want to record that you don't say it.

. D. F.We say nothing more than that we don't move for a proof. L. P.—Then you don't ask to be allowed a proof.

L. DeasI beg leave to say that I understand this to be the last opportunity in this Court before judgment, that the parties can bave for getting a proof.

Mr Young—We can have no objection to your Lordship coming to that conclusion.

L. P.-I want to put down that you don't ask for a proof. We must have that settled before we can stir. We cannot let the case wait over.

D. F.-We have distinctly stated that we don't ask for a proof.


CALL TO THE BAR.-John Campbell Lorimer, Esq., M.A., was admitted a member of the Faculty of Advocates on December 1st.

BILL CHAMBER.-Lord Mure is Lord Ordinary on the Bills during the Christmas


THE LABOURING CLASSES DWELLING-HOUSES ACT 1866 is not, as appears from a correspondence recently published in the newspapers, regarded by the Treasury as extending to Scotland, and no loans in terms of the Act will therefore be made at present by the Public Works Loan Commissioners. The Government undertakes to introduce a bill early next session to remedy the oversight. We conjecture that the hitch has arisen from sec. 2 providing that the Act "shall be incorporated with and taken as part of the Labouring Classes Lodging-Houses Act 1851' (14 and 15 Vict. c. 34), and the two Acts shall be read and construed together as if they were one Act.' That Act provides that nothing in it "shall extend to Scot


THE VALUATION ROLLS.-The Lands Valuation Act 1854 provides that the valuation rolls in Scotland shall be in the form of the schedule annexed thereto, and shall be otherwise in such form and of such dimensions as may be prescribed by the Lord Clerk Register or his deputy; and that at the expiration of every period of six years the whole rolls for Scotland, burghs as well as counties, shall be transmitted for preservation in the General Register House. The second sexennial transmission is in course of being made, and it appeared that unless some plan could be devised for lessening the size and number of the volumes, the General Register House will soon be found inadequate to contain them. A few weeks ago, some of the assessors of the leading counties and burghs inspected the building, by invitation of the Lord Clerk Register, and afterwards held a consultation, at which it was pointed out that the three columns for tenants (1st) under lease of less than 19 years' duration; (2d) between 19 and 57 years; and (3d) of 57 years and upwards-might be condensed into a single space capable of containing three figures specifying the duration of each lease. It was, however, the opinion of the meeting that the provisions of the Act of Parliament would not allow of this being done, and therefore the only means of reducing the size of the rolls was by restricting the size of the columns required by the statute. After deliberation, the assessors prepared a roll more limited in extent, and more convenient for reference. The Lord Clerk Register approved of it. It was suggested that the attention of the Lord Advocate should be called to this subject, with the view of obtaining a short Act of Parliament allowing the tenants' columns above referred to to be cancelled, and a narrow column substituted showing the duration of leases.-Fifeshire Journal.

ROYAL COMMISSIONS.-Lord Cranworth; Lord Westbury; Sir Hugh M'Calmont Cairns, a Judge of the Court of Appeal in Chancery; Sir James Plaisted Wilde, Judge Ordinary of the Court of Probate and Divorce; the Right Hon. Robert Lowe; Sir William Page Wood, a Vice-Chancellor; Sir George Bowyer; Sir Roundell Palmer; Sir John George Shaw Lefevre, K.C.B.; Sir Thomas Erskine May, K.C.B.; W. T. S. Daniel, Esq., Q.C.; Henry Thring, Esq., and Francis Savage Reilly, Esq., barristers-at-law, have been appointed to be Her Majesty's Commissioners to inquire into the expediency of a digest of the law, and the best means of accomplishing that object, and of otherwise exhibiting, in a compendious and accessible form, the law as embodied in judicial decisions. Mr Godfrey Lushington has been appointed Secretary to the Commission.

The Royal Commission to inquire into the state and working of the neutrality laws of this country is constituted as follows:-Lord Cranworth, chairman; Sir W. Erle, Sir Hugh Cairns, Sir R. Phillimore, Sir Roundell Palmer, Mr Vernon Harcourt, Mr Baron Bramwell, Dr Lushington, Dr Twiss, Lord Houghton, Mr T. Baring, Mr W. Forster, and Mr Gregory. Mr Gibbs, C.B., is appointed Secretary. It is announced that Government has appointed a Commission or Committee, consisting of Sir Edward Lugard, Lord W. Paulet, Sir Henry Storks, Mr Elliott, the Secretary for the Colonies, and Mr Vernon Lushington, the Deputy Judge Advocate-General, to consider the circumstances under which martial law should be applied, and better to define the duties of the civil and military authorities in case of disturbances.

MR DENMAN, Q.C., M.P., is to bring in early next session a bill for the abolition of the Attorney's Certificate Tax.-Solicitors' Journal.

Notes of Cases.


(Reported by William Guthrie and Harry Davidson, Esquires, Advocates.)



Special Jury-Right of Way.

In an action to establish a right of way at Bannockburn, in which a verdict for the pursuers was set aside as contrary to evidence, the defender's counsel moved that the second trial should proceed before a special jury; referring to the Elgin and Eaglesfield cases, Mags. of Elgin v. Robertson, 12th March 1862: Bell v. Reid, n.r. ; in the latter of which the Lord JusticeClerk said that in a second trial as to a right of way, which relates to a burden upon heritable property, it was proper that a special jury should be allowed. Held, that there was no such general rule; but, in respect that the pursuers did not allege any disadvantage to them if the case were tried by a special jury, the Court granted the motion. Act.-Millar and Mackintosh.-Alt.-Johnston.


Bill-Leading the hand in signing.

Action of reduction of a decree of the Sheriff of Lanarkshire in an action of improbation of a bill for £50, reducing the bill as not having been truly signed by the deceased. It was proved that the hand of Mrs. Brown, the granter, who was now dead, was held by William Lamont, the son of the pursuer in this action, when her signature was attached to the bill; that William Brown, her son, was instructed by his mother to get the bill drawn out by a writer in Hamilton; that she said she had got the loan of money from the pursuer's wife, and that £50 was the sum to be put in the bill; that she had full use of her memory and all her faculties; and that she asked William Lamont to lead her hand, being herself unable, from the effects of disease, to write distinctly. Held, affirming judgment of Lord Kinloch, Ordinary, that, this being neither a case of diligence on a bill nor of a probative document, and Mrs Johnston having, as proved, given her authority to lead her hand in signing the bill, the obligation constituted by the bill ought to be maintained, and the interlocutors in the Inferior Court reduced.

Act.-Scott. Agent-D. F. Bridgeford, S.S.C.Alt.-Strachan. Agent James Renton, jun., S.S.C.



In this case two verdicts in favour the pursuer having been set aside by the Court, a third jury nevertheless returned a similar verdict at the last

July sittings. It was an action of reduction at the instance of a shoemaker in Cupar against a doctor, and the issue was, "Whether the assignation, dated on or about the 24th May 1859, No. 6 of process, was signed by the pursuer when he was under essential error as to its nature and effect, induced through fraud and misrepresentation or undue concealment on the part of the defender." At the third trial the jury found unanimously for the pursuer, "the assignation having been signed by the deceased John Urquhart when he was under essential error as to its nature and effect, induced through undue concealment on the part of the defender." The defender moved for absolvitor. He contended that the issue was in substance one of fraud, and could not be affirmed except by a finding of fraud. It was not alternative except in this sense, that the fraud was put in issue as committed in one of two modes-viz., (1) misrepresentation, or (2) undue concealment; and as the verdict assumed that undue concealment was a separate alternative, wholly apart from fraud, it could not be held a verdict for the pursuers. The Court refused the motion. The issue was one of essential error, and the alternative lay between essential error, induced by fraud and misrepresentation, and essential error induced by undue concealment.

Thereafter, on the motion of the pursuer, the verdict was applied, and decree of reduction pronounced,

Act.-Fraser and Campbell Smith.

Agents-Macgregor and Barclay, S.S.C. -Alt.-Watson, Macdonald, and Rhind. Agent-T. Ranken, S.S.C.



This case, as to a right of salmon-fishing in the Balgy, in Ross-shire, originated in an application to the Sheriff by Colonel M'Barnet, proprietor of Torridon, and others, for interdict against Sir John Stuart, one of the Vice-Chancellors of England, proprietor of the lands of Balgy, which lie on the opposite side of the said river from the lands of Torridon. This case was advocated on an order for proof, but it was superseded by an action at the instance of Stuart against M'Barnet, concluding for declarator that Stuart had sole right to fish salmon in the river, or alternatively that he had right of salmon-fishing opposite the lands of Balgy; further, that the defender had no right to fish for salmon in the said river; and prayed that he should be interdicted from so fishing. Colonel M'Barnet contended for no such exclusive right, but only that he had right to half the salmonfishing in the river. Stuart had a Crown grant cum piscationibus, fortified by immemorial possession. M'Barnet had by his title right to half the "salmon-fishings" in the river, from a subject superior, which was not confirmed by or connected with a Crown grant. The proof showed that the defender's right had been exercised by rod and line, and for two seasons, in the portion of the river nearest the sea (as to which the main question was), by net and coble. There was also joint possession by persons who were tenants of both the proprietors. Held, that that was an avowed and ostensible exercise of the right in the titles, which was not a right that could be lost non utendo. The same strict rules as to the nature of possession were not to be applied where a party has a right to salmon fishings in his titles, as are applicable where it is sought to raise a right of salmon-fishing upon

« EelmineJätka »