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procedure of the House as a court of last resort, and regretted his inability to correct its defects. But it was in the more congenial atmosphere of the Privy Council, where the practice and forms of proceeding had gradually been moulded and settled by his own influence and example, that he has left the most conspicuous traces of his judicial ability. In 1858, Lord Derby offered him the Great Seal, but he refused it. By some this refusal was attributed to indolence; but indolence can hardly be ascribed to one of the most successful advocates of the English Bar, or to a man who would spend unremitting labour to perfect whatever he had undertaken to perform. Thus, the services rendered by Lord Kingsdown to the Duchy of Cornwall resulted in placing that magnificent demesne on a totally different footing. The predominant quality of his character was a fastidious refinement. "No breath of popularity," as he once expressed it, "ever touched his sail." But, if he was sensitive to the shortcomings of others, he was exacting in all that concerned himself. Many of his judgments were written several times over; all were revised with elaborate minuteness. In 1858 he had already quitted the Court of Chancery for fifteen years, and we suspect that the reason which mainly determined his refusal of the Great Seal was a distrust of his ability to perform the duties after so long an interval in a manner entirely adequate to his conception of their importance. His qualities as a judge were held by those who sat with him to be literally unrivalled. His mind was deep, clear, and unruffled; his patience inexhaustible; his sense of justice even more acute than his love of legal precision. He aimed at framing the decisions of the Court on large grounds of analogy and reason. He mastered the complicated subject of the land tenures of India; he more than once opposed an insurmountable barrier to the exactions of the Indian Government, and taught the judicial authorities of India many an invaluable lesson of moderation and wisdom. The appellate jurisdiction of the Privy Council over the Colonial Courts is now almost the sole link which holds together the British Empire. The moral influence of this British tribunal is still unshaken; and its authority was largely augmented by the wisdom, temper, and equity of Lord Kingsdown. The war of 1854 re-opened, after forty years' peace, the Maritime Courts of Prize. The principles of Lord Stowell and the practices of the last war were to be subjected to legal revision. In these questions Lord Kingsdown took warm interest; and if the decisions of that period have mitigated the pressure of war on neutrals, and substituted more civilized usages for the harsh practices of former times, no small share of the credit is due to the spirit of his judgments. Lastly, the cases of Gorham v. the Bishop of Exeter, Liddell v. Westerton, Long v. Bishop of Cape Town, and "Essays and Reviews" were decided by the Privy Council, and they were decided in entire conformity with his views. Lord Kingsdown never was married; his title, therefore, is extinct. Of his property the larger part reverts to a descendant of Sir Robert Leigh; the remainder passes to the brother and nephews of the late Peer.-Abridged from the Times.
The Right Hon. FRANCIS BLACKBURNE, late Lord Chancellor of Ireland, died at Rathfarnham Castle, at the age of 85 years. He played an active and distinguished part in the history of this country for a period of extraordinary duration, and his name is associated with some of its most remarkable incidents. He was descended on the maternal side from Dr Ezekiel Hopkins, Bishop of Derry during the famous siege. He was born 1782 at Footstown, Co. Neath, entered Trin. Coll. Dublin, 1798, was called to the Bar 1805, and in 1822 was appointed King's Counsel. In 1823 he was appointed to act as Judge in Limerick and Clare, to enforce the Insurrection Act, and so continued until 1825, gaining the attachment of all parties by the impartiality of his conduct. Under the Ministry of Earl Grey he was made Attorney General in 1830, a period of great excitement and peril. He proved himself in all respects equal to the emergency, and vindicated the law with firmness, vigour, and moderation. He remained in office under the brief administration of Sir Robert Peel, to whose political views he then attached himself, having previously professed Whig principles, and he retired in 1835. On the return of the Conservative Ministry to power in 1841 he was reinstated in the office of Attorney-General, and in the following year, on the death of Sir Michael O'Loghlen, he was promoted to the office of Master of the Rolls. In 1846 he was transferred to the Chief Justiceship of the Queen's Bench, and in that capacity presided at the Special Commission which tried Mr Smith O'Brien and his associates in 1848. In 1852, he was promoted by Lord Derby to the office of Lord Chancellor, which he vacated on the retirement of his friends. In 1856, when the office of Lord Justice of appeal in Chancery was created, the Whig Government did not allow political considerations to outweigh their sense of his eminent fitness for it. He retained it until the return of the present
Ministry to power, when he was induced to accept the Great Seal again, although it involved a serious sacrifice. Early in the present year, in consequence of failing health, he resigned.
GEORGE MCLELLAND, Esq., W.S. (1823), whose decease was noted last month, was born at Ayr, where his father was a writer and banker. He was a member of the Juridical Society of Edinburgh. At the dissolution of the firm of Hunter, Campbell, & Cathcart, W.S., in 1834, he became a partner of the new firm of Hunter, Campbell, & Co., in which he continued till its dissolution in 1843, after which he devoted himself exclusively to the ministry of the Apostolic Church, Broughton Street, to which he had belonged since its origin in 1834. In 1845, he went to America, and remained in the discharge of his ministerial duties in the United States and in Canada for fourteen years. He is the author of various books, among others of "The End of the Dispensation" and "The Human Nature of Christ," two discourses.
HUGH HANDYSIDE, Esq., W.S. (1827), died at Kirkton Lodge, Murrayfield, on Nov. 3. Mr Handyside was best known as Secretary to the Sustentation Fund, Church and Manse Building, and other Committees of the Free Church.
PATRICK GRAHAM, W.S. (1824), (firm, Graham & Johnston, W.S.), died at Edinburgh 15th Nov. He was for many years in partnership with Mr Peter Anderson, W.S., Law Agent for the City of Edinburgh, under the firm of Graham & Anderson. On Mr Anderson's death, Mr Graham succeeded him in that office, which he held till his death.
THOMAS BARTY, Esq., Solr., N.P. (1827), (firm, Thomas & J. W. Barty, Dunblane), Joint P. F. for Western District of Perthshire, died at Anchorfield, Dunblane, 15th Nov. He was Clerk to the Income Tax and Assessed Taxes, and District Prison Board.
Appointments.-Mr Thomas Dickson, whose appointment to the office of Assistant Curator of the Historical Department of the Register House was noted in our July number, has been promoted to the office of Curator of that Department, vacant by the resignation of Mr George Skene, Advocate, formerly Professor of Law at Glasgow. Mr Skene had held the appointment only for a few months.
An order of Court was made the other day in our Sheriff Court, which occa. sioned considerable surprise. A firm sued a Railway Coy. for the price of a property which they had agreed to purchase, the terms of the bargain being that the price was to be payable on the delivery of a valid title. The pursuer stated that he was ready to give a valid title, and asked for decree for the price, subject to that condition. The Sheriff ordered him to lodge in process an abstract of the title, in order that the Court might judge of its validity.
The following decision in the S.D.C. also created some surprise. At a public sale a party bought what on tasting he believed to be port, and what was represented to him to be such. The liquor turned out not to be port, and he sued the auctioneer for repetition. The Sheriff held that although the rule that a man's eye is his merchant might apply, still as the wine turned out not to be port, the pursuer was entitled to L.5 of damages. Is a man's mouth not his merchant as well as his eye?
SIR, I observe in last month's Journal, in noticing the provision introduced into the Debts Recovery Act as to stamp duty on Indentures, you quote a correspondent of the Scotsman, who indicates an opinion that indentures that have been written on insufficient stamps or plain paper will be stamped with the deficiency of duty by the Commissioners of Inland Revenue on payment of a maximum penalty of L.10, like an ordinary deed.
This is quite a mistake on the part of the Scotsman's correspondent. Indentures, as a general rule, cannot be validated by after-stamping, but the Act of 19 & 20 Vict., c. 81, makes an exception in favour of legal indentures. The terms upon which that exception is granted, however, are:-(1.) That the party obtain the consent of the Lords of the Treasury; and (2.) pay a penalty of L.10 a year (but not above L.50 in all) for each year or part of a year that has elapsed since the date of the indenture. The same correspondent also refers to the case of parties who have neglected to obtain any indenture under the Procurators' Act. He says such parties should now execute and record an indenture, making the apprenticeship in it commence in May last. But such an indenture would not qualify for admission. The Procurators Act requires that the party "shall have been bound under an indenture in writing to serve at least for four years." Now, if an indenture is entered into at present with the period of apprenticeship terminating at May 1871, as it would if made to run from May last, it is evident that the party has only been “bound in writing” to serve for three years and six months, which is not a compliance with the requirements of the Act. The six months allowed for recording the indenture are apt to lead one to overlook this.
I have thought it well to point out these things, as the working of the Procurators Act is not yet very familiar-were it so, the mistakes I have referred to would not have been made-and it would be a pity that parties should be led to suppose that they had taken the proper steps to secure a qualification under the Act when they really have not.-Your ob. servt., S. N.
Notes of Cases.
COURT OF SESSION.
(Reported by William Guthrie and Donald Crawford, Esquires, Advocates.)
WILL v. ELDER'S TRUSTEES-Nov. 6.
Heritable Security-Adjudication-Right to demand Assignation.-The pursuer and his brothers were heirs-apparent of provision in heritable subjects, pursuer having right to a certain portion of those subjects, and the remainder being divided among his brothers in definite shares. Elder obtained decree of constitution against the pursuer and his brothers, jointly and severally, for certain advances amounting to £133, 16s.; and afterwards adjudged the whole subjects referred to. Upon the decree of adjudication infeftment followed; and Elder, and after him his trustees, possessed the subjects and drew the rents. The rents went partially to extinguish the debt and interest; but it was admitted that a balance remained due to defenders. In these circumstances, pursuer, as one of the
joint and several co-obligants in the debt, brought this action, concluding inter alia that defenders should be decerned to accept payment from him of the whole balance due to them, and to assign to him, with a view to his operating his relief, the whole security constituted in their favour by the adjudication. Defenders offered to accept from pursuer his own proportion of the debt, and to convey to him their security over his own portion of the subjects. The L. O. (Jerviswoode) sustained this contention. Pursuer reclaimed.
Lord PRESIDENT. The right to demand an assignation was always an equitable one, and here the whole equity of the case was against pursuer. He was not in a position to discharge defrs. of their intromissions, except as to his own subjects, and defrs. would not be in safety to transact with him with regard to subjects confessedly belonging to his brothers.
Lord CURRIEHILL concurred. He thought pursuer might pay the balance and then insist for declarator of redemption, which would place all parties where they were prior to the adjudication. He did not see how the pursuer could ask the Court to make over to him individually the whole right to the subjects adjudged.
Lord DEAS and Lord ARDMILLAN concurred.
Act.-Monro, Macintosh. Agents-Hill, Reid, and Drummond, W.S. -Alt.-Gifford, Hunter. Agent-William Mitchell, S.S.C.
MP-SCOTTISH EQUITABLE INSURANCE Co. v. CHAMPION AND OTHERS.Nov 9.
Husband and Wife-Antenuptial Contract-Provision of Conquest.
Mr Duncan effected a policy of insurance with the real raisers on the life of his wife, payable to himself, his heirs, or assignees, six months after the death of Mrs Duncan. He assigned it, 26th May 1838, to his sister, Mrs Graham, and her son, Alexander. It was again transmitted by assignation on 12th July 1844 to trustees for Mrs Graham. Both assignations were duly intimated. Mr Duncan died on 17th Aug. 1862, leaving a settlement. Mrs Duncan died 20th Nov. 1864; so that the policy became payable on 20th May 1865. The assignees claimed the sum in the policy and bonuses, founding on the intimated assignations; and the representatives of Mrs Duncan claimed the half of the sum, on the ground that, in assigning the policy, Duncan committed a fraud on his ante-nuptial marriage-contract, which conveyed the whole means of the spouses, heritable and moveable, pertaining or belonging or due and addebted to them at the date of the marriage, or which should pertain or belong to them or be due or addebted to them at the dissolution of the marriage by the death of either of them, to the survivor in liferent, excepting only the heritage belonging to Mr Duncan, which was to descend to his own heirs, and appointed the fee of the estate of the spouses, other than Mr Duncan's heritage, to be divided (in the event, which occurred, of there being no children of the marriage) into two equal parts, one belonging to the heirs and executors of each spouse, each having power to test upon their respective shares. The L. O. (Jerviswoode) sustained the pleas for Duncan's assignees, and repelled the claim of Mrs Duncan's representatives. The latter reclaimed.
Lord CURRIEHILL.-The clause consisted of two parts, one relating to the acquisita at the date of the marriage and the other to what should belong to the spouses at its dissolution. The policy did not belong to Mr or Mrs Duncan at either date. Taking the words, therefore, in their literal meaning, the clause did not include the policy. But if the argument really meant that the funds used in creating the policy fell under the operation of the clause-i.e., that Mr Duncan had misapplied such funds in paying the premiums, then, there being no allegation of his insolvency, the remedy was to call his representatives to account, not to pursue the subject purchased with these funds. Nor was the income arising to Duncan from his own industry or otherwise included in the conveyance, unless it continued in his possession till the dissolution. It was to be presumed that the premiums were paid from income: Mrs Duncan's representatives indeed say, from income of the joint property; but as soon as it was realised it was his, because his jus mariti was not excluded. Hence neither the policy nor the sums paid as premiums were included in the conveyance. It was unnecessary to go farther, but it was right to state the opinion he had as to the meaning of such deeds. A technical meaning had been attached to certain phrases. What was called liferent was in many cases really fee, and fee was often a mere destination or right of succession. As to the construction of marriage-contracts, when the subjects conveyed in such a deed consisted not of special articles but of a universitas, very special rules had long been established. One of these rules was founded on the common maxim that "a man could never be rich unless his wife would let him;" and it was a usual arrangement that conquest should be provided to the married persons themselves and their children, thus furnishing an encouragement to a thrifty wife. But when such a provision of a universitas was made by ante-nuptial marriage-contract even per verba de præsenti, the husband remains the absolute owner, with right of administration, and with power of disposal for onerous causes and even gratuitously, unless his alienation of it is clearly a fraud on the marriage-contract. This rule was very clearly established two centuries ago (Cowan v. Young, 9th February 1669, M. 12,942). This had been, as Gosford puts it, a "practick" ever since (Ersk. III., 8, 43; Oliphant, 10th February 1629, M. 3066). Hence, even if the premiums had not been paid from income belonging absolutely to the husband, there would have been no difference, because not only conquest, but also what belonged to the spouses at the marriage, was conveyed; and the latter was brought under the legal rule applicable to the clause of conquest. Neither, therefore, on the literal nor technical construction of the clause did the sum in the policy belong to Mrs Duncan's representatives.
The other Judges concurred, and the Court substantially adhered. For Mrs Duncan's Representatives-Cook, Agent-J. N. Forman, W.S. For Duncan's Assignees-Fraser and Duncan. Agent-R. Hill, W.S.
LYELL V. GARDYNE-Nov. 20.
Lyell sought for declarator of a public right of way along the avenue of Gardyne and past his mansion-house. The jury returned a verdict for