heir may have all the means of reimbursement at present applicable only to the latter, and all the varieties of improvement at present confined to the foriner. It might perhaps be still better if Montgomery improvements, as such, were abolished, allowing, of course, the same operations to be charged, if truly permanent improvements. The effect of this would be to require permanency as an element in all entail improvements, which, as already mentioned, is not at present the case as to those under the Montgomery Act.

CURRENT CASE LAW.

The case of Dickson v. Mathew, 1st Div., June 28, was characterised by Lord Deas, who dissented, as one of great difficulty. It decides that a bond merely acknowledging the subsistence of former debts granted by a bankrupt within the sixty days before bankruptcy, not giving the grantee any preference over other creditors, but only enabling him to rank as an ordinary creditor in the sequestration pari passu with the lowest class of unsecured creditors, is not challengeable under 1696, c. 5, not being a deed "in farther security in preference to other creditors." The Lord President thought that this was not necessarily in conflict with the dictum of Mr Bell, Com. II. 213, that "from the moment of constructive bankruptcy the debtor can do no act by which the situation of his creditors can be altered, even to the effect of establishing equality among them," which was founded on as an authority by the trustee. It was held, however, that the grantee could not rank for interest upon the interest accumulated in the bond.

Hally v. Lang, 1st Div., June 27, teaches an important lesson in pleading, and is one of several recent warnings against the looseness with which records are sometimes framed in Sheriff Courts, and the improper indulgence with which such pleading is treated by Sheriffs. A petition for summary ejection of the widow of a deceased proprietor from premises which she had occupied for seven years under an ex facie good liferent right granted by her husband, did not allege that the possession of the respt. was vicious or precarious, and did not aver any other special ground for the exercise of the extraordinary remedy of summary ejection; but merely stated the title of the petitioner as trustee on the sequestrated estate of the son and heir of the respondent's husband, and that the respondent was in possession. It sometimes requires a considerable amount of tact and knowledge to state a relevant case, but we trust that instances of such gross inaccuracy as this are rare in any Court.

In Purves v. Brock, 1st Div., July 9, it was held that the price

paid for an article sought to be recovered does not conclusively fix the value of it, so as to ascertain the value of the cause in a question as to the competency of an advocation, because the value may be much greater to the possessor than to others. Thus the mention in the condescendence of the price paid for a tup which had been wrongly delivered to the defr. after a sale, and for delivery of which a petition was presented to the Sheriff, was held not to show that the value of the subject matter of the process was under L25, and the respondent objecting to the competency of advocation, was therefore held not to have discharged the onus lying upon him by pointing to the admission on record. The Lord President animadverted strongly on the delays which had occurred in leading the proof in this case. It cannot be too constantly remembered in the Sheriff Courts that the Act provides "that the diet of proof shall not be adjourned unless on special cause shown, which shall be set forth in the interlocutor making the adjournment; and the proof shall be taken as far as may be continuously." &c.

În Elliot, &c., v. Hunter, &c. (Heritors of Kirkton v. Minister, &c.) July 12, the Second Division had occasion to consider the law as to the obligation upon the heritors of a parish to make additions to the manse, and they affirmed the principle established by the cases of Lochcarron and Symington (Mackenzie v. Mackenzie, June 30, 1835, 13 S. 1014, and Carmichael v. M'Lean, 25th May 1837, 15 S. 1020, 9 Jur. 458), and recently restated by Lord Jerviswoode in Heritors of Kingoldrum v. Haldane (Jan. 24, 1863, 1 Macph. 325), (1) that mere insufficiency of a manse in point of size to accommodate the family of the minister does not, at least where it has been at a not very distant date repaired or improved by the heritors, and not objected to by the minister and Presbytery as insufficient, entitle the minister to a new manse or to additions to the existing building, but (2) that where, as Lord Moncreiff expressed it," the manse requires very considerable and universal repairs to render it habitable at all," or, as Lord Jerviswoode put it, it is "truly in such a state of disrepair as to be incapable of repair, or so nearly so as to render the expense of repair not far short of the expense of a new manse," it is not incompetent for the Presbytery to decern for additions as well as repairs. In this case the manse had been built so recently as 1840, and had been occupied without objection till 1857 by the late incumbent; and the repairs which were claimed, and which the heritors did not refuse to execute, were of course comparatively trifling. Lord Cowan observed that he would not say that the amount of repair required in order to justify the order for a new manse must be so great as to make that the only alternative, so that apparently the language of Lord Moncreiff above cited seems. more nearly to express the view of the Court than the more cautious statement of Lord Jerviswoode, or than that of Bell, Princ. 1169. The principle is clearly enough but somewhat diffusely stated by Mr Duncan in his "Parochial Ecclesiastical Law," pp. 381, 382. The

present case and that of Kingoldrum in the Outer House are valuable chiefly as aiding in the application of the rule, which must in many cases be difficult.

The Breadalbane case has been terminated by a decision of the House of Lords in favour of Mr Campbell of Glenfalloch. The most obvious reflection, after reading the judgments in the Court of Session and Appellate Court, is, that only the greatness of the prize could have tempted to the long and hopeless struggle in which Boreland and his supporters have now been defeated. The decision of the Courts cannot be said to have evolved any new law, but the rules of the Scotch marriage law have been elaborated and elucidated in a most exhaustive manner by both courts, and so far at least as regards habit and repute marriages, have been placed on a more satisfactory basis of reason and justice than ever before. We are no bigoted admirers of the Scotch law of marriage; but we desire in any imperial legislation on the subject that the best parts of our system should not be sacrificed for the sake of mere uniformity, and in deference to the unreasoning prejudice of southern journalists.

It is rather absurd, though not surprising, that English critics, who know little of the case and nothing of the law, should make the Breadalbane case the text for sermons upon the urgent need of improvement in the marriage law. Even the Law Times, which ought to know better, chimes in with the cuckoo cry. It is to be regretted that the judgment of the House of Lords was not reported in the Times except in the most meagre and unsatisfactory way; indeed a report of the judgment of Lord Cranworth would have been the most thorough refutation of the leading article which occupied the space that should have been devoted to the opinions of the law lords. That judgment tended to show that in the particular point at issue the law of Scotland has the advantage of the law of England, and his lordship even seemed to admit the justice and equity of legitimation per subsequens matrimonium. But there is much reason to believe that even in England in similar circumstances the same decision would have been given. In fact the case was one of evidence and not of law. A multitude of legal points, some of them curious enough, cropped up here and there, and some were keenly contested; but the real question, the true solution of which has hardly ever been dubious, was whether there was sufficient evidence. of the intention of the grandfather and grandmother of the present Earl of Breadalbane to take one another for husband and wife.

The only novelty which the most diligent legal students have discovered in the judgment of the Scotch Court was the doctrine laid down in the opinion of the present Lord President, Lord Neaves, and Lord Mure, that cohabitation and repute are not merely evidence of matrimonial consent, but are a legal mode of contracting marriage-a doctrine which received support from some obiter dicti in former cases, but was never before formally enunciated. This

view has been negatived, by the opinion of Lord Cranworth at least, in the Court of Appeal; but after all the difference between the two ways of stating the law is rather verbal than real. The practical difference is small between saying that cohabitation and repute make marriage, and that they prove it.

At a very early stage of the case it appeared that an important point was to be made of a rule of the Canon Law against marriage between persons who have committed adultery. It was very soon apparent, however, that, as Lord Barcaple put it, "the Act 1600, c. 16, is of itself a sufficient answer to the plea. It implies that there is no impediment to the marriage where there has not been a divorce." Perhaps after all, even if the Canon Law rule had been adopted in the law of Scotland it would have had no application in this case. It is thus stated by Sanchez (De Matr. VII. 78. 1), "Duo sunt crimina quae matrimonium subsequens dirimunt, Prius est adulterium cum machinatione mortis alterius conjugis. Posterius vero adulterium cum fide data de contrahendo post conjugis mortem vel cum contractu matrimonii de praesenti cum adultera." Another question was raised which received considerable attention from the Canonists, viz., Whether it was necessary to the validity of any subsequent marriage of James Campbell and Mrs Ludlow that the death of Christopher Ludlow should have been known to them. There was no proof of this, but the difficulty was got over (see opinions of Lord Barcaple and the Lord Chancellor) by assuming that they must in fact have been acquainted with an event so important to them. The student of the Canon Law, if there be now any such, may be interested by the chapters of Sanchez dealing with similar questions. (De Matr. II. 35, &c.)

The historian of Law, or indeed any historian who traces the progress and the various forms of human thought, might make an instructive chapter upon the differences in the treatment of questions wonderfully similar by the ecclesiastical lawyers of the seventeenth and previous centuries, and the law lords of the nineteenth. Another and more curious parallel than those to which we have referred will be found in the case of Longworth v. Yelverton, in its last stage, House of Lords, July 30. It was there held that the Court will in its discretion refuse to sustain a reference to oath where the interests of third parties may be affected. Other grounds of judgment were stated, but that was the ratio decidendi chiefly relied on. We do not at present discuss the judgment, or consider the cogent arguments of Lord Deas against it; but refer to the doctrine of Covarruvias, De Spons. I. 4. 1. 5. After stating that the church had introduced a presumptio juris et de jure in favour of marriage where copula has followed upon spousals, he lays it down that this presumption cannot be overcome by the admission of the party "pro quo jus praesumit"; where at least either collusion may be suspected or the interests of persons not appearing in the cause may be prejudiced He then proceeds to notice the opinion that "in causa matrimoni

ali non esse deferendum juramentum actori ab ipso reo nec reo ab actore, etiamsi nullae essent aliae probationes, quando ex hoc juramento posset praejudicium alii quam deferenti inferri: cum ille, qui non detulit, contendat cum altero ex litigantibus matrimonium contraxisse vel contractum non tenuisse: si enim ex delatione alterjuraret pro matrimonio et istud juramentum teneret; tertius, qui praetendit matrimonium cum litigante contraxisse maneret aliquo pacto elusus: sic etiam si ex delatione juramentum fieret contra matrimonium, tertius qui contendit matrimonium per eum cum altero ex litigantibus contractum, non valuisse, propter primum conjugium super quo litigatur, frustraretur suo jure quod forsan habet. Quo fit ut delatio juramenti, etiam ubi nulla adest probatio in causa conjugali, sed reus est omnino absolvendus, minime sit admittenda, quando ex illa delatione posset alii nocumentum aliquod inferri, qui tamen eandem litem minime tractat, ex ejus vero decisione sperat damnum aut commodum quoad propriam causam ;" &c. Though not cited, Covarruvias states the case for Mrs Forbes quite as clearly and much more briefly than our modern judges have done.

The Month.

Disfranchisement of Agents.-In reference to the clause in the English Reform Bill disfranchising law agents employed by candidates at elections, the Law Times says:-We had hoped that the Lords would have rescued the Profession from the unmerited insult inflicted upon them by the House of Commons by disfranchising all solicitors whose professional services are retained at an election. The clause was based on the assumption that solicitors habitually vote for any party that will employ them, and that the vote is the object of the retainer-in plain terms, that they sell their franchise for a fee. Members of Parliament ought to have known that such an assumption is wholly false and unfounded. The solicitors are not for sale, either in boroughs or counties. They have principles, and they belong to parties, like other men; but their knowledge of law, their aptitude for business, and their necessarily extensive local information, peculiarly adapt them to be election agents, and they are retained exclusively with reference to their services, and not to their votes. If the retainer was the purchase of a vote it would be a very costly one, and the same money might be used much more profitably. Why, then, are they to be disfranchised? The object of the excluion of agents was to prevent bribery under colour of employment. Notoriously messengers were engaged in multitudes, for no other purpose than, under the name of employment, to put money in their