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Correspondence.

THE "DEBTS RECOVERY ACT, 1867."

(FROM OUR GLASGOW CORRESPONDENT.*)

OUR Sheriff Court system, although not perfect, is yet so excellent and valuable, and has proved itself so well adapted to the wants of the community, that we are naturally jealous of all attempts to improve it. We are afraid of innovations which may not be improvements; afraid that the "blessed amending hand" may be applied too rashly, and that so venerable and useful an institution may, in process of time, be "improved off the face of the earth."

To this feeling, laudable in itself, but apt to be carried too far, may no doubt be attributed much of the opposition and hostile criticism which the Bill originally presented by the Lord Chancellor in February last, and now passed into law as the "Debts Recovery (Scotland) Act, 1867," met with during its progress. And it cannot be said that such apprehensions are altogether groundless. During the agitation and discussion which preceded the passing of the Sheriff Court Act of 1853, two so-called reforms were. much insisted on, viz., 1st, an extension of the provisions of the Small Debt Act to all cases under £50 in value, and 2d, the abolition of the office of Sheriff-Depute and the establishment of "Resident Sheriffs in each county. Fortunately neither of these "demands of the country," as some agitators chose to call them, was granted; but when such extravagant demands are made it is not surprising that those who understand and appreciate the benefits of the present system should regard all innovations with considerable apprehension.

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Now, we do not claim for the present measure, any more than for its predecessors, the merit of absolute perfection; but we venture to predict that many of the objections which have been stated to it will be found in practice much less serious than was supposed.

That its leading provisions are merely permissive, we conceive to be a positive advantage, inasmuch as those who do not choose to avail themselves of its summary mode of procedure are at liberty to adopt the more familiar forms now in use; and the frequency with which the new forms are resorted to will, to some extent, test their merits in comparison with the old.

Another objection is, that it applies only to a particular class of debts and leaves others to be recovered under the old forms. But it is to be remembered that the measure is not intended to be final. If it be found advantageous in one class of debts it may afterwards be extended to others; and if, on the other hand, it does not prove to be a public benefit, it is all the better that its scope is limited. It was no doubt difficult to define a particular class of debts so as to avoid questions regarding its application; but the phraseology of the Scottish Statute 1579, cap. 83, which introduced the triennial prescription, has been wisely adopted, in order that the series of decisions following upon it may form a guide in the application of the

Our respected correspondent warns us that in this instance the views which he enunciates are not to be taken as prevailing extensively in Glasgow. It will be seen from our own article on the subject that we also differ from most of his conclusions. VOL. XI. NO. CXXX.-OCTOBER 1867.

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present act. This accounts for the quaint and antiquated terms in which the limits of the act are defined in the second section, which, to an unprofessional reader, may appear not a little singular. We have thus a valuable repository of precedents illustrating the nature of the debts to which the act is intended to apply; and it is to be hoped that objections to cases on the ground of their not being of the nature contemplated by the act will be comparatively rare.

Again, it has been objected to the act that its tendency is to encourage or invite appeals to the Court of Session by abolishing the necessity for finding security for costs in advocations and suspensions. But, while a great deal may be said in favour of the rule which imposes on an unsuccessful litigant in an inferior court the necessity of finding caution for costs before he can submit the judgment to the review of a higher, yet there may be as much hardship in enforcing as in relaxing it; and after all, considering that the appellant may sufficiently comply with the rule by finding juratory caution, which is seldom very substantial, the respondent does not lose a great deal by the necessity for finding caution being dispensed with. Perhaps the most assailable point in the act is one about which comparatively little has been said, namely, the Table of Procurators' Fees contained in it, which are declared to "include the whole sums exigible, whether as between party and party or between client and agent, for taking instructions to prosecute or defend the action, instructing officers to cite parties or witnesses, or to arrest on the dependence, revising summons and citations and executions, precognoscing witnesses, attending proofs and debates, writing and signing appeals, correspondence, and generally doing everything requisite for commencing and carrying on the action or the defence until final judgment or decree in the Sheriff Court." Take, for example, the fees allowed for obtaining a decree in absence. This includes in an ordinary case at least one consultation with the client on the grounds of the claim, which may be intricate and complicated, framing the account or claim and making two copies, taking out a summons, instructing an officer to serve, and revising execution, producing summons after service, and attending the court obtaining decree, and afterwards procuring extract for all of which the procurator is to be allowed, where the sum concluded for does not exceed £25, a fee of 7s. 6d, and where it exceeds £25 and does not exceed £50, a fee of 10s. The fees for contested causes are at least equally low, ranging from 30s. to £4. No doubt the Court of Session is empowered to make alterations "by way of increase or decrease" on the fees, but their lordships are not likely to interfere with them of their own accord, and as properly qualified procurators cannot be expected to accept such ridiculously small fees, it does seem probable that suitors may have difficulty in obtaining competent professional assistance in availing themselves of the act, and without such assistance it must necessarily prove to some extent inoperative and entail increased labour on the sheriffs. It will be unfortunate if the Act should fail in its operation from this cause; but if it should, an act of sederunt enacting a more liberal scale of charges appears to be the appropriate remedy. In the meantime, believing it to be on the whole a step in the right direction and an improvement in some respects on our present forms, we confidently hope that that branch of the profession whose interests are most likely to be unfavourably affected by it will lend their aid, as far as possible, in giving it a fair and impartial trial.

QUERIES.

I. Can any of your readers suggest what is the proper course to take in the following circumstances? D having taken a lease for 99 years under the Montgomery Act of ground exceeding an acre in extent upon an entailed estate builds a large villa on it, but fails to build a house of the value of L.10 for each half acre within the statutory period of ten years. D dies, and his trustees put up the property for sale; but the person to whom it is knocked down at the auction refuses to accept the title offered, founding on the late decision in Miller v. Carrick, March 29, 1867. I presume the purchaser, even though bound to satisfy himself as to title previous to the sale, cannot be compelled to implement the contract, as the title of the exposer is funditus null and void under the irritancy in the Act and lease. See Hamilton v. Western Bank, June 12, 1861, 23 D. 1035. Is this so? The proprietor does not wish to take advantage of the irritancy, and is willing to give a new lease to the trustees. Will this validate the lease, or is it ultra vires of the proprietor, as being an alienation in contravention of the entail? R. B.

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II. When tutors, who are themselves next of kin, are dissipating the funds of their pupils, is an action for the removal of the tutors as suspect" competent in the name of the pupils themselves, a tutor ad litem being of course appointed after the case is brought into court? The case of Austin v. Wallace, 21st Dec. 1826, 5 S. 177, does not quite amount to an affirmative answer. LEX.

III. A creditor recovers part of his debt from two cautioners, and ranks upon the bankrupt estate of his debtor to the effect of obtaining a first dividend, which makes up the amount due to him. How must the cautioners proceed in order to obtain payment to them in relief of a second dividend now declared, which the creditor who is fully paid cannot touch? Can they be sisted in place of the creditor, who is ranked, but cannot take the whole sum for which he is ranked, or ought they to have lodged contingent claims at an earlier stage? M. S.

IV. Can any of your readers inform me whether there is any authority or precedent in the law of Scotland or England for the following decision pronounced in a Small Debt Court by one of the ablest local judges in Scotland? A woman sued a pawnbroker for damages for abusive language and assault committed by his assistant in his shop in the course of a business transaction. The Sheriff decerned for a sum of damages, upon the ground that the assistant had been guilty of similar conduct ten months before, which had been brought to the knowledge of the employer, and that the employer had notwithstanding retained the man in his service. This application of a principle analogous to the doctrine of "the pushing ox in Exodus," may be defended by various arguments, although it has been keenly assailed in England during the past month (see Times, passim); but it seems inconsistent with the general rule that there can be no valid mandate to do anything contrary to law. It does not appear to be supported by any of the authorities referred to in Mr Guthrie Smith's book on Reparation, p. 145 sqq., or in Mr Clark's work on Partnership and Joint-Stock Companies, p. 254, 262 sqq. The question in all such cases is whether the delict for which the employer is sought to be made responsible was committed in the course of, and as part of the ordinary work for which the agent or servant is engaged. It may often be difficult to draw the line, and perhaps there may be no very clear distinction between the case in question and the embezzlement of money belonging to a client by a solicitor's clerk, or the misapplication by the partner of a legal firm of money entrusted to the firm for investment, in which cases respectively the principal and the firm are liable for the fraud of the agent, as was shown in the English case commented on in the Journal for September, p. 460. Nevertheless, I know of no precedent for the judgment referred to, and it does not seem consistent with received legal notions. Would an omnibus proprietor be liable for damages for an assault on a passenger who asserted that he had paid his fare, by a conductor who had previously to the knowledge of his employer committed a similar assault?_I have known of a refusal by justices to entertain an apprentice's application for discharge on the ground of cruelty under 4 Geo. IV. c. 29, because the assault founded on was committed by the foreman of the employer, who was entrusted with the su pervision of the employer's apprentices. The words of the statute, however, are perhaps sufficient to justify this decision, without reference to any principle of law.

PRAGMATICUS.

ENGLISH CASES.

RAILWAY-Debenture-Companies' Clauses Act 1845.-A debenture-holder filed a bill, on behalf of himself and the other debenture-holders, against the company for an account, and obtained the appointment of a receiver of the tolls and rates of the undertaking. Subsequently another debenture-holder, having obtained a judgment at law in respect of his debt, presented a petition in the cause before the hearing, praying that he might be at liberty to issue a writ of fi. fa. upon the goods and chattels, and execute an elegit upon the lands of the company-Held, that the petitioner was not entitled to issue execution in respect of his judgment, except as a trustee for himself and all other debenture-holders entitled to be paid pari passu with him; and an inquiry directed whether it would be for the benefit of the debenture-holders to have the petitioner's judgment made available for their benefit. Wood, V.C., said: Sec. 42 of the Act consisted of two parts, one of which declares that debenture-holders shall be entitled rateably in their several proportions to "the tolls, sums, and pre mises," and the other that they shall be repaid "the sums advanced to them with interest, without any preference one above another by reason of priority of the date of their mortgages or of the meeting at which the same were authorized." It was clear, according to "Russell v. East Anglian Ry. Co.," (3 Macn. and Gor. 104, 20 L.J., Ch. 257), that if the petitioner had been a simple contract creditor who had recovered judgment at law, he would have been entitled to issue execution against the chattels of the company. He was not, however, in that position. He was a mortgagee who had accepted his security under the provisions of the 42nd sec. of the Act, and his rights must be expounded by the Act of Parliament. If the petitioner's claim were allowed, the consequences would be most inconvenient, because then all the debenture-holders in a company would rush for judgments, in order to realize their debts as soon as they were due, and thus would break up the undertaking, by virtue of securities which provided that they should acquire no preference or priority one over the other.-Bowen v. Brecon and Merthyr Tydvil Ry. Co., 36 L.J., Ch. 344.

SUCCESSION DUTY.-A devised real estate to trustees upon trust, by sale or mortgage, to raise a sum of money, and subject thereto in trust for his son. The trustees sold the estate by auction in lots, and L bought two lots. Pending investigation of the title, the required sum was received out of the purchase-money of the other lots. The Commrs. of Inland Rev. having charged and received legacy duty in respect of the purchase-money of the lots sold to L,-Held, that the lots were protected, by sec. 18 of the Succession Duty Act, 1853, from any charge for succession duty. And, semble, the duty properly chargeable was succession and not legacy duty.-Earl Howe v. the Earl of Lichfield, 36 L.J., Ch. 313.

DIVORCE-Costs of co-respondent.-In a suit for dissolution of marriage, the jury found that the resp. and co-resp. had committed adultery together, that the petr. had condoned, and, further, that petr. had connived at his wife's adultery with another person, and they assessed the damages at one farthing. The Court dismissed the petition, and ordered petr. to pay the costs of the respt. and of the co-respt.-Adams v. Adams, 36 L.J., Pr. and Matr. 62.

RAILWAY-Diversion of highway: Railways Clauses Act 1845, s. 16.-A railway company has no right to alter a railway by diverting it unless such alteration is necessary for constructing the railway or the accommodation works connected therewith, and the mere saving of expense would not justify them in making it. Therefore this Court, by mandamus, upon the application of the owners of land adjoining the part of a highway which had been, by a diversion of it, cut off, ordered the company to carry the highway over the railway, or the railway over the highway, by means of a bridge.-R. v. Wycombe Rail. Co., 36 L.J., Q.B. 121.

RAILWAY-Mines: Railway Clauses Act, § 71, sqq.-A railway company which has taken lands for their railway, under the Lands Clauses Act (8 & 9 Vict. c. 18), and the Railways Clauses Act (8 & 9 Vict. c. 20), with a conveyance in the usual form, are not entitled to prevent the owner of the mines, subjacent or adjacent, from working and winning the same without making compensation. It makes no difference that the mines and minerals are necessary for the support of the railway. If the company, after notice of intention to work, refuse to make compensation for the mines requisite for the support of their railway, they can only compel the mine-owner to work his mines in a proper manner according to the custom of the district.-Sprott v. Cal. Ry. Co., 2 Macq. 449, 28 Jur. 486, applied to a contract entered into before the passing of the statutes now in force, and the doctrine enunciated in it (viz., that if I sell my land for the purpose of a railway being made upon it, I impliedly sell all necessary support, both subjacent and adjacent), is not affected by this decision, which is under statutes creating a new code as to the relations between mine-owners and railway companies compulsorily taking lands. The railway company by s. 77 (71 of Scotch Act), were not to have any mines or minerals under the land purchased by them, but might secure sufficient support to the railway by purchasing it from the owner of the mines, or if they thought it likely that the mines under their railway might not be worked for an indefinite period they might postpone the purchase until the necessity for it arose. That the sec. reserved to the mine-owner all the minerals, however near to the surface, unless the company choose to purchase them, appeared clearly from the exception of the parts necessary to be dug or carried away or used in the construction of the company's works, as those, of course, would be the minerals lying nearest to the surface. But if the company desire to postpone the purchase of the mines until they know that they are to be worked they may do so with perfect safety by the protection afforded them by sec. 78, which requires the owner to give them thirty days' notice of his intention to work the mines. If the company after receiving such notice were willing to make compensation, the owner was not to work the mines. Otherwise he would be at liberty to work the mines, so that the same be done in a manner proper and necessary for the beneficial working thereof, and according to the usual manner of working such mines in the district." But, to guard the railway company under these circumstances against any unfair mode of working the mines to their prejudice, it is provided by sec. 79 (§ 73), that "if any damage or obstruction be occasioned to the railway or works by the improper working of such mines the owner shall make such damage good." Thus the working must be "improper " before the mine-owner is compelled to make such damage good. [Note for reference: Clark on Partnership, 497; Fletcher v. G. W. Ry. Co., 28 L.J. Ex. 147, 29-L.J. Ex. 253; Dudley Canal Co. v. Grazebrook, 1 B and Ad. 59, 8 L.J., K.B, 361.; Hamilton v. Turner, &c., 1st Div., July 19, 1867; Wyerley Canal Co. v. Bradley, 7 East. 368; Midland Ry. Co. v. Checkley, 36 L. J. Ch. 380, et infra.]—G. W. Ry. Co. v. Bennett, Ho. of L. 36 L.J.Q.B., 133.

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LANDS CLAUSES CONS. ACT.-Railways Clauses Act-Injury by Vibration, Smoke and Noise.-Premises near a railway but not touched by it were depreciated in value by vibration, smoke, and noise, caused by the passage of trains. Held, (diss. Channell, B.), rev. dec. of Court of Q.B. 35 L.J.Q.B. 53, ante vol. x., p. 141, that the owner was entitled to compensation under secs. 6 and 16 of the Railways' Clauses Act.-Brand v. Hammersmith and City Ry. Co., Ex. Ch., 36 L.J., Q. B. 139.

TRUCK ACT.-Sec. 23, of 1 and 2 Will. 4, c. 37, which permits an employer to make stoppages from wages in respect of certain articles, prohibits this "unless the agreement or contract for such stoppage or deduction shall be in writing and signed by such artificer ":-Held, that the agreement specifying the amounts to be deducted in respect of the several articles need not be in writing. Where an employer deducted from the wages of his artificer 6d. a week for a subscription to a club, in consideration of which the employer, who kept the club funds, was to supply medicine and medical attendance to the subscribers whenever required,—

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