Page images
PDF
EPUB

on business in Edinburgh as a W.S., in partnership under the firm of Hill, Reid, and Drummond, W.S.

Do.-John Gillespie, Clerk of the Peace, W.S. in Edinburgh.

FIFE. Wm. Horsburgh, Clerk of the Peace, procurator or agent

in Cupar.

FORFAR-David Small, Clerk of the Peace, solicitor in Dundee. KINCARDINE.-Alex. Gordon Brown, Clerk of the Peace, procurator or agent in Stonehaven.

LANARK.-George Crawford, Clerk of the Peace for Lower Ward, acts as conveyancer in Glasgow, but does not practice before the sheriff or other local courts.

Do.-Wm. Morrison, Clerk of the Peace for the Upper Ward, agent or solicitor in Lanark, and practising as such except in the court of which he is clerk.

Do-James Gebbie, Clerk of the Peace for Middle Ward, agent or solicitor in Srathaven, and practising as such, except in the court of which he is clerk.

LINLITHGOW.-John Hardy, Sheriff-Clerk, Commissary Clerk, and Clerk of the Peace, general agent and law conveyancer in Linlithgow, but not as an agent or solicitor in any court.

NAIRN.-Wm. Dick, Clerk of the Peace, solicitor or agent, Nairn. PEEBLES.-William Stuart, Sheriff-Clerk, Commissary Clerk, and Clerk of the Peace, carries on agency business in Peebles with a partner. Remarks: Mr. Stuart in a note says, "Mr. Stuart is Sheriff Clerk, Commissary Clerk, and Clerk of the Peace; he is a partner of the firm of Stuart & Blackwood, Peebles, who transact business as bank agents, conveyancers, factors for estates, assurance company agency, and such like. All business connected with the courts above mentioned is excepted from the co-partnery. Mr. Blackwood has no participation in the salary and emoluments derived from the above offices, and Mr Stuart has no interest whatever in Mr Blackwood's business as a procurator in these courts."

PERTH.-William Young, Commissary Clerk, in partnership with his son, under the firm of W. & W. R. Young, bankers and solicitors, Auchterarder.

Do.-Robert Martin, Clerk of the Peace, solicitor, Perth.

RENFREW. John Bartlemore, Commissary Clerk, writer, Paisley. Do.-Robert Wright,* Clerk of the Peace, writer, Greenock. Ross.-William Moffat, Clerk of the Peace, partner of the firm of Moffat and Dewar, solicitors, Dingwall.

SELKIRK.—John Lang, Sheriff-Clerk, Commissary Clerk, and Clerk of the Peace, in partnership with another as solicitor or agent in Selkirk. Remarks: Mr Lang states that he has no interest in any court business which may be conducted by his partner before the courts of which he is clerk.

STIRLING. Thomas L. Galbraith, Sheriff-Clerk, writer in Stirling. * Mr Wright died after the return was made, and Mr Bartlemore has been appointed to succeed him.

Do.-Andrew Hutton, Commissary Clerk, writer in Stirling, in partnership with another.

SUTHERLAND.-No return.

WIGTOWN.-Alex. Ingram, Clerk of the Peace, Procurator before the Sheriff and Commissary Courts of the county.

ZETLAND. George Smith, S.S.C., Sheriff-Clerk, conveyancer and practitioner before the Commissary and Justice of Peace Courts, and conducts general business exclusive of Sheriff-Court business.

Do. Samuel Henry, Commissary Clerk, Procurator before the Sheriff Court, and conducts general business, exclusive of procedure before the Commissary Court.

Note.-Depute or Assistant Clerks in the Sheriff, Commissary, and Justice of Peace Courts, appointed by the Principal Clerks of these courts, and clerks in Burgh and Police Courts are not included in this return. (Signed) T. G. Murray, Crown Agent for Scotland, Edinburgh, 26th June, 1867.

Correspondence.

ANSWERS TO QUERIES.

I. (Ante, p. 507.) There seems to be no doubt as to the first point here, viz., that no purchaser can be compelled to fulfil a contract of sale of land the title of which is in such a condition as is described. As to the question whether any remedy exists by which the trustees may either safely continue to hold the long lease for the beneficiaries, or may be enabled to give a good title to a purchaser, it occurs to me that a new lease by the proprietor for the unexpired period of the original term is not open to the objection suggested by R. B. For, even if the proprietor were to resume the subjects, there is nothing to hinder him from giving them out again on a Montgomery lease for any period not exceeding ninety-nine years. And if he gives them to the original tenant at the original rent I cannot see that that would be a contravention of the entail because of the rent being less than he (the_proprietor) could get for the land together with the villa now erected on it. The alienation of the villa and accessories of the land to the original tenant's representatives at the old rent would not be gratuitous, because, if the proprietor resumed possession of the subjects and ousted them, he would be bound (always assuming their author's bona fides in building on the subjects) to recompense them for the outlay on the subjects so far as he himself was lucratus thereby. (See Bell's Princ. 538). And there is no reason why he should not take the short way of arriving at the same result without litigation or dispute by letting the lands anew to the original tenant's trustees for the remainder of the original term. For the sake of making the arrangement doubly secure, the new lease might narrate the circumstances in which it is granted and the obligation of recompense, and it might be granted (though I should think this quite unnecessary) with the consent of the substitutes in the entail next to succeed. Indeed, if they are as favourably disposed as the proprietor, the trustees might at no very great expense, if circumstances are favourable, obtain a disentail of the lands embraced in the lease. But surely any purchaser would be satisfied with a new lease in the terms I have mentioned.-G.

Notes of Cases.

THE SHERIFF COURTS.

(Renfrewshire S. D. Court at Greenock, before Sheriff Fraser, July 31.) Demurrage. A bill of lading for sugar on board the s.s. Stettin from Dunkirk to Greenock, contained a clause "à reclamer dans les 24 heurs de

l'arrivée sous peine de payer gardiennage et magasinage." This action was brought against consignees for charges paid by the shipmaster to the custom house authorities for watching sugar and for piling it up in the shed when discharged. The shipmaster founded on the English cases which are thus summarized by Maude and Pollock, Merch. Sh. 307 (3d ed.).— "Where the parties enter into a positive contract that the goods shall be taken out of the ship within a certain number of days from her arrival, the contract must be construed strictly, and demurrage becomes payable for any delay beyond the period fixed upon which is not owing to the default of the shipowner, even although it may be caused by an accident or impediment over which the freighter has no control - as, for instance, by the necessity for the removal of superincumbent goods by the crowded state of the docks, or by custom house or government restraints or regulations; and this has been held to be so even although no notice of the ship's arrival has been given to the consignees, or to the indorsers of the bills of lading." Serious doubts as to the doctrine were expressed by Lord Tenterden in Rogers v. Hunter, 1 Mo. & M. 63, and Dobson v. Droop, 1 Mo. & M. 441. The defrs. contended that the shipmaster had not been ready to deliver the goods, which were piled up along with sugars belonging to other consignees, and undistinguishable, and that they could not be liable for expenses of watching &c. until their sugars were separated and ready for delivery. But the Sheriff adopted the view stated by the more recent English writers, holding that the question was really one of construction of the contract, which might be so expressed as to get rid of all difficulty. He said: "Don't the words à reclamer' just mean that the consignees are to be ready themselves to wait on and select their own packages as they are landed from the ship, just as a traveller would have to wait and receive his portmanteau from the luggage van? And if the customs regulations render it necessary that their goods be watched, is not the contract quite clear that the expense of doing so is to be borne by the consignee? He thought a proof that the consignees were ready to take delivery of their goods would not be relevant, and decerned against the consignees. We are not aware that there is any reported Scotch case on the subject.

Act.-R. Neill. Alt.-W. M'Clure.

(Forfarshire at Dundee, before Sheriff Smith, Oct. 9.)

Debts Recovery Act-Sheriff-Clerk-Preparation of Summonses.This was the first Court held for cases under 30 and 31 Vict., c. 96. Last Court day, Mr Paul brought under the notice of the Court the provisions of the Act relative to the duty of the Sheriff-clerk in the issuing of the summonses, and the Sheriff intimated his willingness to consider the matter. Before the business was entered on,

The Sheriff said,-Last Court day a motion was made by Mr Paul that instructions be given to the Clerk of Court that, on receiving a copy of the account to be sued for, under the Debts Recovery Act, he shall fill up and issue a summons for the same. I do not think it my duty to give these instructions to the Clerk of Court, and as the matter is one of public importance, I shall state the grounds of this opinion. It appears that it has been the practice in Forfarshire, Perthshire, and some otner counties for parties who wish to take proceedings under the Small Debt Act to obtain, at the

office of the Sheriff-clerk, by merely presenting a copy of the account to be sued for, a summons-filled up and signed, and ready for execution. This is, no doubt, a very convenient arrangement for the procurators, and, although the Sheriff-Clerk is quite at liberty to continue the practice if he thinks proper, I am of opinion that he is not bound to do so. At common law he is under no obligation to act the part of a solicitor for one of the parties, for the whole theory of his office is perfect neutrality between the contending litigants. He is not required to frame summonses in the ordinary Court, and he must be equally entitled to decline doing so in Small Debt cases, unless the duty has been expressly imposed upon him by the statutes creating the summary jurisdiction. I have been unable to find any such provision in either the Small Debt Act or the Debts Recovery Act. On the contrary, there is abundant evidence that it was the intention of Parliament that the party himself should first prepare his own writ agreeably to the form in schedule (A), and then take it to the office of the Clerk to be there signed by him-"which summons or complaint being signed by the Sheriff-clerk shall be a sufficient warrant and authority to any Sheriff-officer for summoning the defenders," &c. A summons, even under the Small Debt Act, is a very formal instrument. It must still set forth, in a tolerably relevant form, "the origin of debt, or ground of action." If the action were thrown out on the ground of any defect, a claim of damages would lie against the procurator or other person who undertook its preparation. And it is not to be supposed that if Parliament had intended these duties to be discharged, or risks to be incurred by a public functionary, it would have abstained from saying so in the clearest terms. But, whatever doubt may be felt as to the true reading of section 3, the matter is made perfectly clear by the terms of section 9, for it is there said that any person wishing to pursue a furthcoming in the summary mode provided by the Act, "shall proceed by summons or complaint, agreeably to the form in schedule D," &c., which summons or complaint is to be afterwards signed by the Sheriff-clerk. The meaning of these words clearly is that the party himself shall frame his own summons in the form appended to the statute. No doubt, by section 25, the Sheriff-clerk is required to appoint, at the seat of each Small Debt Circuit Court, a depute Clerk, "or other proper person resident in the place, to issue the summonses or complaints which may be applied for and issued under the provisions of the Act." This, however, obviously refers to the printed forms of summons. of which the Sheriff-clerk is apparently expected to have a stock on hand ready for public use. It was contended that the Debts Recovery Act assumed that the preparation of summonses would be undertaken by the Sheriff-clerk, for section 18 declared that the fee to be allowed the procurator should cover, inter alia, "revising summons." This, however, does not help the argument, but the contrary; for if the Sheriff-clerk prepared the summons, the procurator would have no opportunity of revising it, seeing it would come to him signed and ready for execution. The words rather show that the procurator is to revise the summons before sending it to the office of the Sheriff-clerk for his signature, which is the warrant for serving it on the defender. I quite sympathise with the profession in the feeling that, under the new Act, they have many duties to perform for an insufficient remuneration. It would, however, be only extending this injustice to transfer a portion of these duties to public officials, on whose shoulders Parliament has nowhere said they shall be placed.

THE

JOURNAL OF JURISPRUDENCE.

TO OUR READERS.

THE Publishers have to intimate that from the beginning of the year 1868 the Scottish Law Magazine and Sheriff-Court Reporter, hitherto published in Glasgow by Messrs Murray and Son, will be united with this Journal. The field in which a professional journal in Scotland must seek for support is so limited that two publications cannot, as experience has more than once proved, be long conducted without pecuniary loss to one, most probably to both. There is not, in a profession probably numbering less than 2000 members, all of whom are engaged in arduous and difficult labour, either writing or reading power sufficient to support two publications of this kind. In announcing therefore this amalgamation, the Publishers venture to express a hope that the absence of competition will prove a public benefit. It will enable them, if they are supported as there is reason to expect that they will be, to make several very material improvements in the Journal of Jurisprudence. The main object of the Scottish Law Magazine was to furnish accurate reports of the more important cases decided in the Sheriff Courts, and we believe that by the cooperation of many of the Sheriffs and others, the publishers succeeded in carrying out that object. The Journal of Jurisprudence has already begun to give reports of decisions in the Sheriff Courts. They have also made arrangements for noticing, with fuller knowledge and sympathy, matters of local interest, especially in Glasgow. They have thus adopted what have been the main features of the Scottish Law Magazine. Although the Journal of Jurisprudence is naturally conducted in Edinburgh, it will endeavour, as it has hitherto done, to avoid being identified with any metropolitan or professional clique, and its pages will

VOL. XI. NO. CXXXII.-DEC. 1867.

2 P

« EelmineJätka »