deeds are at present ordinarily recorded for preservation, as, for example, contracts of ground annual, and other bilateral deeds-and in all cases it would be a great convenience to the profession, and to the public, to have the option of substituting for a valuable writ, the loss of which may be irreparable, an extract, which although lost or destroyed can at any time be replaced at an expense of a few shillings. But, on the other hand, the last consideration obviously leads to this, that every conveyance of property of any considerable value would be recorded for preservation, and, as pointed out by the Commissioners, a progress of titles would soon become a series of extracts, the examination of which would not disclose errors and defects which would be at once detected on looking at the principal deed. The question is thus raised, and, even according to the present practice, it is of serious importance, whether the conveyancer is justified in accepting an official extract of a deed, without examination of the principal, and whether, in the case of a vital defect in the principal deed, he is responsible to his client for the consequences? It is to be feared that at present the Register of Deeds is sometimes made the tomb of writs to which objections might be stated, of a character conveniently undisclosed by the official extract, and if the only check presently existing, namely, the expense attending double registration, were removed, it is certain that every deed to which any objection of such a nature could be stated would be as speedily as possible interred there. If responsibility attach to the agent, and the examination of the original deeds can be omitted only at his peril, it is plain that conveyancing could, in such an event, be conducted with safety only in Edinburgh-should the Registers be wholly located there. continued exaction of fees producing an annual surplus over the expenditure of upwards of £7,000 for the benefit of the public revenue. By appointment of the Committee, ANDREW MITCHELL, Convener. Review. THE HANDBOOK OF BANKER'S LAW. By Henry Robertson, Notary Public, Bank of Scotland. Second Edition. Edinburgh: Bell & Bradfute. THIS work is intended, as its title and the preface bears, for the guidance of bankers, especially of those who have not had a legal education. The necessity of a knowledge of law to bankers is well understood by the author, as without such knowledge he must be "unable to judge of the validity of the obligations and grounds of debt on which advances are to be made, and runs a constant risk of being involved in law suits, and of suffering pecuniary loss in the event of any emergency, such, for example, as the bankruptcy of his customers." But although the author is thus fully alive to the dangers which beset a banker who has an imperfect knowledge of law, and although he proposes to supply this knowledge in some measure, he is far too wise and cautious to propose to teach law so as to exclude all reference to the lawyer. The book is intended to meet the every-day duties of The Commissioners propose to obviate this difficulty the banker, but avoids those rarer and more difficult by making it imperative on the Registrar to specify on points which must frequently occur, and for the solution the extract (1) the stamps impressed on the original of which the cautious banker will always have recourse deed; (2) the words, if any, written on erasures; and to his lawyer. Such is the professed object of the author, (3) whether the deed is or is not duly executed. The and we think he has performed his task well. He beCommittee see no difficulty as to the first of these par-gins, as of right, with mercantile writs, their mode of ticulars, because it involves matter of fact, but the second and third involve matter of opinion, upon which they think it is not within the province of the Registrar to pronounce, and the proposal appears to the Committee all the more objectionable when taken in connection with the recommendation that the certificate of the Registrar should be made conclusive as to the facts set forth in it. On the whole, however, the Committee are inclined to think that the advantages of making registration in the Sasine Register equivalent to registration for preservation and execution, more than outweigh the risks which would be run, and they accordingly recommend that parties should have the option of recording for preservation and execution as proposed by the Commissioners. The Committee, without entering into detail on this subject, concur generally in the observations of the Commissioners regarding the fees of registration and searching. Unquestionably the system ought to be selfsupporting, but, waiving the question whether the cost of additions to the Register House ought to have been provided for in this way, it is impossible to justify the execution, and the parties who can and who cannot grant them-on death, the mode of getting a title to the executor. Bills, Drafts, and Cheques follow, and so on to Obligations, Cash Credits, Securities, Lien, Discharges, Diligence, Bankruptcy, Sequestrations, Trust Deeds, and the Transfer of Stocks. An Appendix of Forms concludes the volume. In the treatment of so many topics, the author has studied brevity, with clearness, although we have some doubts about the omission of technical phrases. A definition has all the more clearness, when expressed in technical language, to those who understand it, but to define a legal term in untechnical language must often cause the meaning to be hazy, and its application extremely hazardous. But keeping in view the author's purpose, and having examined the work, we can recommend it as a compilation which cannot fail to be useful to all engaged in banking, in the numerous transactions involving the nicest legal points in mercantile law, which must often turn up in the course of business. We notice this is a second edition-a safe evidence that it has been appreciated by the class to whom it is more especially addressed. THE SCOTTISH LAW MAGAZINE AND SHERIFF COURT REPORTER. ATTORNIES AND SOLICITORS. WITH reference to the article in our last number regarding the renewed effort by the procurators of Scotland to have the body recognised and raised to the position which it ought to occupy, because exercising so much social influence for good or for evil, we think it may assist the profession in arriving at a practical result, if we give a summary of two of the latest Acts passed for the education, examination, and admission of attornies in England. These Acts are, 6 and 7 Vict., c. 73; and 23 and 24 Vict., c. 127. Section 2 of 6 and 7 Vict., c. 73, prohibits any person from acting in any of the Courts, civil or criminal, with out having been admitted and enrolled, and otherwise duly qualified, and continuing on the roll. 3. Unless bound by a contract, in writing, to serve as clerk for five years to a practising attorney or solicitor, and shall have served under such contract, no person shall be capable of being admitted and enrolled as an attorney or solicitor, and must previously be examined and sworn. 4. No attorney shall have more than two clerks at one and the same time, who shall be bound by contract in writing; and any attorney ceasing to practise, cannot retain his bound clerks; and service with an attorney, who is himself a writer or clerk, is not good service under articles. 5. An attorney becoming bankrupt, or insolvent, or be imprisoned for twenty-one days, the Court, where the attorney is practising, may discharge the contract, or assign it. oath is to be administered, after which to cause him to be admitted and his name to be enrolled, and his admission shall be written on the proper stamp, and signed by the Judge. 16. The Judges, or any eight of them, may appoint examiners. 21. The Incorporated Law Society appointed registrars of attornies, with power to issue certificates of admission. 27. Every person admitted an attorney of any one of the Superior Courts may be admitted to practise in any other of the Courts, or in any Inferior Court of law, upon signing the roll of the Court, and no additional fee shall be demanded. 32. An attorney may be struck off the roll who permits an unqualified person to practise under his name; and (35) any person so practising is incapable of recovering costs, and may be punished for contempt of Court; and (36) the same prohibition and penalties are applied to the County Courts. 37, 40, 41, 42, 43, regulate the taxation of bills or accounts. The 23 and 24 Vict., c. 127, amends 6 and 7 Vict., c. 73. Section 2 repeals sect. 7 of the prior Act, and, by the new clause, extends the privilege of adinission on three years' service to students who have taken degrees at the Universities of England, Ireland, and Scotland. The Scottish degrees are, B.A., M.A., LL.B., or LL.D., not being honorary degrees. 7. If a degree has been taken at Oxford, Cambridge, Dublin, Durham, or London, the person may be ad- 4. Persons who have been ten years clerks to attormitted attorney on serving a clerkship of three years-nies, may, on being bound and serving for three years see sect. 2 of 23 and 24 Vict., c. 127. 8. An affidavit must be made and filed within six months from the execution of articles of clerkship that they have been executed. 10. And this affidavit must be produced on applying for admission. 12. The clerk so bound must actually continue in the service of an attorney during the whole term specified in the contract. 13. Where the master dies or ceases to practise, clerks may be transferred to another master. 14. Before admission, applicant must make an affidavit of having served. 15. Before admission, the Judges of the Courts of Queen's Bench, Common Pleas, or Exchequer, are required to examine and inquire, by such ways and means as may be thought proper, the articles, and service, and the fitness and capacity of the person applying to act as attorney; and on being satisfied, but not otherwise, an farther, be admitted attornies. 5. The chiefs of the Court may make regulations whereby persons who have passed certain examinations at the universities may be admitted after four years' service. 7. Articles of clerkship to be produced to the registrar within three months after execution. 8. Persons who have not obtained a degree to be examined in such branches of general knowledge as may be fixed by the heads of the Court, before articles or before admission, and may dispense with it in special cases. 9. Judges may make regulations for examinations in legal knowledge during the service under articles. 10. Articled clerks shall not hold any other office or employment. 11. Examination, on admission, to extend to all business transacted by attornies, under such rules as may be passed by the Courts. 15. W.S., S.S.C., and procurators in Scotland, on E serving three years, may be admitted attornies in Eng- in contravention of or for penalties imposed, shall be proland. secuted under this Act. 18 to 22 relate to annual certificates. 23. An attorney neglecting to renew his certificate for one year must obtain a Judge's order before another can be issued to him. 24. An entry to be made where attorney struck off the roll; and (25) to be struck off all rolls of Courts where practises. 32. Chief Justices of Queen's Bench, Common Pleas, and Chief Barons of the Court of Exchequer, jointly with the Master of the Rolls, or any two of them, may make regulations. There is much in both of these statutes which is peculiar to England, and which has been passed over here; but from this summary the following leading points are deducible, and may easily be adapted to Scotland:1. Education before being bound as a legal apprentice, and a probative indenture in each case. 2. The period of apprenticeship to be four years, with a portion of that time served in Edinburgh, Glasgow, or Aberdeen. 3. If the degree has been taken of B.A., M.A., LL.B., or LL.D., not being an honorary degree, at any University entitled to grant such degree, the period of apprenticeship to be shortened. 4. The admissions shall be made by the Court in Edinburgh, and, after admission, to have power to practise anywhere, on enrolment, in any other Court, which shall be done as of course, without farther charges. 5. Preliminary and intermediate examinations, under rules and regulations of Court, as to fitness and capacity. 6. Parties not bound, but who have performed the business of solicitors under supervision for a lengthened time, say six or eight years, and who afterwards became bound, may be admitted after an examination in general knowledge. 7. The entire term of service shall be wholly occupied in the profession, and in no other employment. 8. The legal rights of chartered bodies to be reserved. PARLIAMENTARY BILLS. WE have not space to give the following Bills in full, but we give here such a summary as may enable the profession to understand their chief provisions:A BILL (AS AMENDED IN COMMITTEE) TO MAKE PROVISION FOR UNIFORMITY OF PROCESS IN SUMMARY CRIMINAL PROSECUTIONS, AND PROSECUTIONS FOR PENALTIES IN THE INFERIOR COURTS IN SCOTLAND. Preamble recits Acts of Geo. IV., c. 29; 11 Geo. IV. and 1 Wm. IV., c. 37; 19 & 20 Vict., c. 48; 7 Wm. IV. and 1 Vict., c. 41. Sect. 1. Short title, "The Summary Procedure Act, 1864." 2. Interpretation clause. 3. Act shall be applicable to (1) all proceedings before any Sheriff, Justices or Justice or Magistrate in Scotland, in virtue of the summary jurisdiction conferred on them, or any of them, in relation to the trial of offences and recovery of penalties by the recited Acts or any of them; (2) all proceedings before any Sheriff or Justices or Magistrate for the prosecution of any person who has committed, or is charged with having committed, any offence, for which he is liable to be imprisoned or fined, or punished in default of performance; (3) all proceedings for recovery of any penalty; (4) all proceedings for the trial or prosecution for any offence, or recovery of any penalty, under any Act by which offences committed 4. All proceedings for summary conviction for any offence, whether at common law or under any Act of Parliament, and all proceedings for the recovery of any penalty which may be sued for in a summary form, whether such proceedings are at the instance of a public or a private prosecutor or complainer, may be instituted by way of complaint in one or other of the forms set forth in the Schedule A to this Act annexed; and it shall not be necessary to mention in any complaint any Act of Parliament other than the Act declaring the offence for which a conviction is sought, or imposing a penalty or forfeiture which is claimed; and it shall be sufficient to refer to the Act or section of the Act founded on, without setting forth the enactment in words at length; and all penalties, for the recovery of which no special provision has been made by Act of Parliament, may be sued for by the Procurator-Fiscal of the jurisdic tion. 5. No objections to be allowed to any complaint as to its form or substance, or any variation between the complaint and the evidence, unless the Court thinks the accused has been misled or deceived, when the cause may be adjourned to some future day, or may direct an amendment of the complaint. 6. Warrant to cite to be issued on an inducia of 48 hours, or warrant to apprehend may be issued for the interim detention of the accused, or where warrant to apprehend is craved, warrant to cite may be granted, and warrant to cite witnesses may also be added. 7. Accused party may, in certain cases, be tried in his absence, or a warrant to apprehend may be granted. 8. Warrants may be executed in any part of Scotland without endorsation. 9. Provisions of 11 Geo. IV. and 1 Wm. IV., c. 37, as to executions of warrants without endorsation beyond the jurisdiction of the Court granting them, and those of 11 & 12 Vict., c. 42, as to their enforcement in England and Ireland, are made applicable to Scotland. 10. Warrants may be issued to apprehend absent wit nesses. 11. Accused may require an adjournment, unless the complaint has been served personally. 12. The Court may adjourn and detain the accused, unless he finds caution. 13. Judge may sign conviction beyond his jurisdiction if cause heard and concluded within it. abandoning action, the Court to pronounce absolvitor 14. A prosecutor not appearing, or appearing and and give copy to accused, and this to be a bar to any other prosecution for the same offence under any Act. 15. Pursuer, when present, to have complaint read, or substance stated-objections to be stated to the accused, or by judge or clerk, if cannot write-proof relevancy-then the plea to be stated and signed by to be led by parties, and accused may lead proof in replication, by permission, each party may address Court; if prosecution for a penalty, personal attendance of accused may be dispensed with, and hearing attended by a procurator. 17. No note of evidence to be made-offer of proof rejected to be noted. 18. Proceedings may be partly in writing or partly printed. 19. Directions for application of forms of conviction at common law, and under statutes. 20. In place of poinding and sale for penalties, imprisonment may be awarded. 22. Sufficient if one Justice signs all warrants previous or subsequent to conviction, and not necessary for him to hear complaint. Conviction must be signed by a number of Justices, requisite by Act under which complaint brought; in case of equality, complaint to be held not proven; warrants of citation may be signed by the clerk. 23. Penalties recovered, to be paid to Clerk of Court. 24. Expenses may be awarded against private complainer, though not authorised by Act, and not prayed for, but not against public prosecutor, or party prosecuting under any Act, unless authorised by Act. 25. A new warrant of imprisonment against a party already in prison may be so framed as to take effect from the date of previous sentence. 26. When no time limited to bring complaints, must be brought within six months. 27. Act not to extend to removing of paupers, or to prosecutions touching the revenue, or for recovery of rates, taxes, or imposts. 28. Under Police Acts, forms in this Act may be used. 29. Powers of Judges not to be extended by Act. 30. And whereas much inconvenience has resulted from the uncertainty which exists as to the nature of the jurisdiction conferred by various Acts of Parliament authorising convictions for offences, and the recovery of penalties, and the enforcement of orders by imprisonment upon summary complaints before Sheriffs, Justices, and Magistrates in Scotland; and it is expedient to define the cases in which such jurisdiction shall be held to be of a criminal nature. In all proceedings, by way of complaint, instituted in Scotland in virtue of any such statutory provisions as are herein before mentioned, the jurisdiction shall be deemed and taken to be of a criminal nature, where, in pursuance of a conviction or judgment upon such complaint, or as part of such conviction or judgment, the Court shall be required, or shall be authorised, in their discretion, or in a certain event, to pronounce sentence of imprisonment against the respondent, or shall be authorised or required, in case of default of payment, or recovery of a penalty or expense, or in case of disobedience to their order, to grant warrant for the imprisonment of the respondent, of which he shall be entitled to liberation, and in all other proceedings instituted by way of complaint, under the authority of any Act of Parliament, the jurisdiction shall be held to be civil. 31. Appeals from causes of a criminal nature to be to the High Court of Justiciary, or on Circuit, and from civil causes to the Court of Session. 32. A written application, within three days, inferior Judges to state a case in order to appeal on points of law. 33. Appellant, within three days after receiving case, to send it by post, or lodge with one of the Justiciary clerks, or Clerk of Court of Session, and intimation of appeal is to be made to the opposite party. 34. Case to be heard and disposed of without written pleadings. 35. Judge may refuse a case, when of opinion that the appeal is merely frivolous. 36. Appeal Court may affirm, reverse, or amend judgment appealed from, or remit with instructions, and award expenses, and after appeal, execution may proceed on original or amended judgment. 37. The case may be sent back for amendment, or may be amended of consent. Respondent not appearing, case may be heard in absence, but he shall not be found liable in costs. 38. If inferior Judge refuses, Court of Appeal may order a case to be stated on application by appellant. 39. Restrictions on review, as at present, reserved; but a Judge, ex proprio motu, may state a case for the opinion of the Court of Appeal upon any question of difficulty or importance arising on the construction of the Act under which the proceedings are taken, and the expenses of the public prosecutor may be ordered to be paid out of the rogue money. 40. No judgment under this Act liable to be advo cated, suspended, or reduced; but the Court of Appeal may grant relief upon a case stated and signed by the inferior Judge. 41. All appeals at present competent to Justiciary Court, or Circuit Court, or Justices in Quarter Sessions, no longer competent; but must be brought under review of Court of Appeal under this Act upon a case stated. 42. Not lawful to appeal to House of Lords from judgment of Court of Appeal under this Act. 43. Fees of appeal. 44. In cases where not defined, police Judges not to impose higher penalty than £5, or sixty days' imprisonment. 45. Damages against public prosecutor limited to £20, and repayment of the penalty and expenses, unless the Judge at the trial certifies that the defendant was responsible for the error or default, and that it was done maliciously, and without probable cause. 46. All prosecutors, except public prosecutors, or under a statute, shall be competent witnesses to support the complaint; and in civil proceedings the accused may also be examined, but except as provided, no respondent shall be competent or compellable to give evidence. 47. 11 and 12 Vict., c. 43, not to be applicable to Scotland. 48. Present forms in statutes may be used, or those given in this Act. 49. Court of Justiciary may pass Acts of adjournal, or Court of Session pass Acts of Sederunt, for carrying Act into effect, and particularly as to expenses of clerk's fees, and may, within three years, declare the forms of appeal in this Act applicable to proceedings in Inferior Courts of Scotland in their ordinary criminal jurisdiction; but shall not exclude review by advocation or suspension in their ordinary criminal jurisdiction, except in the particular cases in which appeal shall be brought under the Act. [Voluminous schedules follow the Bill.] "A BILL TO ALTER AND AMEND THE SYSTEM OF THE REGISTRATION OF WRITS RELATIVE TO LAND IN SCOTLAND." Section 1. Short title, "The Land Registers (Scotland) Act, 1864." 2. General register to be kept, so that each county shall be in a separate series of presentment books, minute books, and register volumes; writs relating to land in more counties than one to be entered in the presentment book and minute book of each county, and engrossed in one of the county registers only; a memorandum of reference entered in the presentment books of the other counties, which is to be held as a full engrossment-the regality of Glasgow and the Stewartry of Kirkcudbright to be counties quoad registration. 3. The registration of such a writ in one county, without registration in another, to be good for the county where registered, and may be subsequently registered in other counties, and to date from such subsequent registration. 4. General register to remain as at present; no error or omission in presentment book to affect injuriously the registration of any writ recorded. 5. Writs may be sent by post to general register, and keeper to cause clerk to present and sign, marking name of sender; to be recorded as if presented, and intimation to be sent by post of registration; and when two or more writs received by same post, all to be recorded as if presented contemporaneously. 6. Particular registers to be abolished not later than 31st December, 1866; but the Lord-Clerk Register, on the application of the General Keeper, may order the discontinuance of any particular register, notice of which is to be given in the Gazette one month previously. 7. Printed abridgements, and indexes of persons and places applicable to each county, as now in use in the General Register House, to be prepared and to be consolidated from time to time; but these may be stopped as separate from the minute book, and then the minute book shall be printed. 8. These printed abridgements, or minutes and indexes, to be sent to counties, to the care of the SheriffClerks, and to be patent to the public on payment of a fee. 9. Registration for preservation and execution of any deed in the books of council and session to cease, and registration in the general register of sasines to be held equivalent; a warrant to be engrossed by the party, or his agent, authorising registration, and to what effect, in terms of schedule. Extracts may be issued, with warrant for execution; deeds themselves to be sent to clerk register, and kept by him. 10. No higher fees for extracts for preservation and execution than for ordinary extracts. 11. Certificate of registration of deeds re-delivered to be signed by keeper or a deputy, and to be stamped. 12. As allowed by 34th sect. of Titles to Land Act, 1860, where a deed refers to one already recorded, the volumes and folio, or folios, shall be given. 13. An institute or heir of entail may apply to Court of Session for warrant to register deed in books of council and session, and register of tailzies, and the Court may cause it to be registered at applicant's expense. 14. Register of interruptions and prescriptions to be discontinued as a separate register, and such writs now to be recorded in the general register of sasines. 15. Particular registers of inhibition abolished, and now to be recorded in general register of hornings, inhibitions, and adjudications. 16. General register of inhibitions and adjudications to have one minute book and one index. 17. Particular register of hornings and expired charges to cease from date of Act; where it has been a joint register it is to cease to be a competent register of inhi bitions. 18. Before or after execution of inhibition, a notice thereof may be registered in general register of inhibitions, in a form given, and if inhibition itself is recorded within twenty-one days, registration to be as from date of registration of notice. D. 19. Letters of inhibition may be in form of schedule 20. Notice of a signeted summons of adjudication may be registered in the record of adjudications, and on a decree following thereon and recorded, its date is to be the date of the notice, and is to have precedence accordingly. 21. Power to L. C. Register to regulate and remunerate official searchers. 22. After discontinuance of particular registers, fees to be reduced by the Court. 23. Commissioners of the Treasury to regulate the office of General Register of Sasines, etc., and to appoint assistants, and to fix their salaries out of the fees. 24. Fees payable to Sheriff Clerks. 25. Any surplus revenue of general register of sasines to be applied to make up any deficiency in register of books of Council and Session. 26. Compensation to keepers of particular registers. 27. Lord-Clerk Register may act by depute. 28. Act not to extend to burgh registers. 29. Act to take effect on 1st October, 1864. THAT the Game Laws are harsh and oppressive, and often lead to consequences which their object, the preservation of game, can in no circumstances justify, is an opinion held by a large class of society, who may be described generally as having no direct pecuniary interest in land. Dr Barclay, however, avoids the discussion of this question, and states and discusses the administration of the laws. With clearness and force of the tribunal before which those guilty of a breach and much humour, he points out the legal anomalies of the game laws are tried. He next points out the net-work of statutes in which the unhappy poachers are liable to be emmeshed, and the enormous penalties, personal and pecuniary, to which they are subjected. His remedies are to take the power of judging in such cases from the Justices and give it to the Sheriff, and to ameliorate and consolidate the various statutes north and south. Opinions may differ about the Act of last Session, 25 and 26 Vict., cap. 113, "An Act for the Prevention of Poaching;" but from the decisions which have already been given under it in England, there can be no doubt that progress has been made towards one solution of the many difficulties involved in the game laws. It has now been decided by one of the superior Courts that game is property, and the taking of it in certain circumstances is theft. The designation, poacher, therefore, disappears and thief comes in its stead, and an unlicensed dealer in game is now in law a resetter of stolen goods. Whether these new designations, with the help of the county police, will suppress poaching, may be doubted. There can be but one opinion as to the necessity of the simplification and consolidation of the game statutes, and we have no doubt that the able papers of Dr Barclay will do much to assist this most desirable end. The second pamphlet is a paper read before the Juridical Section of the Social Science Congress at Edinburgh, in October, 1863, and treats, in the Doctor's peculiar and effective manner, with the defective, cumbrous, and absurd phraseology of our Acts of Parliament, and advocates, as remedies, the appointment of a minister of justice, and the total repeal of any Act which requires amendment and its re-enactment in its amended form, rather than the present mode of tinkering, by passing an Act to amend an Act, and so on. The third pamphlet, by the indefatigable Doctor, is not in our way; but those who may feel interested in the so-called science of phrenology, will find here a very good resumé of the whole arguments pro and con, including animal magnetism, mesmerism, biology, tableturning, and spirit-rapping. |