THE SCOTTISH LAW MAGAZINE AND SHERIFF COURT REPORTER. ADMISSION OF PROCURATORS. WE direct the attention of our readers to a case which | wanted courage, in short, to state plainly what their we report this month-Macfarlane v. the Procurators real object was; and like most people similarly of Hamilton-as involving questions of some importance to our branch of the profession. The body of procurators of Hamilton, the chief town of the Middle Ward of Lanarkshire, are not a corporate body, except in so far as the Act of Sederunt of 1839 or common law gives them the right to a veto against the admission of unqualified applicants to practise at their bar. They have no charterimperative, like Glasgow and Aberdeen, or permissive, like Perthshire. Hitherto the bars of Hamilton and Lanark have been in the habit of considering the procurators of Glasgow as fellow-practitioners, though not formally admitted; and nobody, up to the date of the action under consideration, thought of doing otherwise. Certain parties, both procurators in Glasgow and in neighbouring counties, not wishing to be under even the show of obligation to the Hamilton procurators, some time ago presented petitions craving admission, and producing the usual evidence of their admission and being in practice at other bars. Some hesitation was made in certain quarters to the admission, and considerable delay took place, it is supposed to concert measures how best to check this influx of non-resident procurators. The result of the consultation was the resolution to erect a society calling itself the Society of Procurators of Hamilton, one of the rules or bye-laws of which was, that each entrant should pay a sum of £10 on admission. The use to which this modest sum was to be applied, was the foundation and upholding of a library. That object was most laudable, and every practitioner in the country will sympathise with their brethren at Hamilton, as the want of libraries must be and is, we know, severely felt. From the history and origin of the Hamilton Society, however, it is plain that that laudable object was only a secondary one, and only used as a respectable blind. They situated, they had recourse to a little respectable humbug. As their modesty prevented them from stating their real purpose, if it is not already clear, they must feel obliged to us for setting it forth for them, though we are doubtful whether we may secure their thanks for our frankness. The real object of the Hamilton brethren was to exclude all other procurators who did not care to throw away £10, or who grudged its expenditure in founding a law library at Hamilton. We are sorry to see the respectable Hamilton bar (such of them, at least, as took part in this movement) so ignorant of the law as to suppose they could attain their object in the way they proposed. They seem to have quite overlooked the clear terms of the Act of Sederunt of 1839, and never to have heard of cases of the Banff procurators and their brethren of Greenock, where even charters from parties having some show of right to grant them were held as so much waste paper, and the recent application of the procurators of Perth for a royal charter, but who only got one which was voluntary, and not compulsory. Their society being formed, and eagerly bent on their object, the Hamilton procurators, or some of them, took the very first chance of levying their forced benevolence, and we are sorry to see that they were to some extent encouraged and seconded by the respectable SheriffSubstitute, Mr Veitch, who, de plano, ordered the applicant, Mr Macfarlane, to deposit the £10 in terms of the new society's bye-law. Mr Macfarlane resisted the order, and appealed the judgment to Sheriff Sir Archibald Alison, Bart. The paltry £10 was entirely out of the question, and Mr Macfarlane took the ground that the Hamilton procurators had done, or endeavoured to do, what was entirely ultra vires. Appearance was made for the procurators, but what was said, or could be said, H in their defence we do not know, as we unfortunately seems to us a vicious system which confers on any were absent when the debate took place. Whatever local authority the power to admit or exclude, Mr Gibbie could find to say in defence of the new especially those before whom the applicant is in society and their so-called library scheme could not future to practise. It may, we do not say that it have been very strong, as every thing was against does, lessen the independence of the procurator, and him, and the short and clear Interlocutor of the make him feel as if he were under an obligation; and Sheriff puts the whole question of admission to it may, we would not for a moment suppose that it practice before the Sheriff Courts once again before does, induce the Judge to act as if he had conferred the profession, and in such terms as must make them a favour. We think the admission of procurators plain to the meanest capacities, and so that he who should not only not be in the hands of the local runs may read. Judge, but it ought not to be left to any local body to exercise their veto in any way in that admission. The evil it may work is manifest to all except those who exercise it, for a local bar, recruited from their own ranks by men who, it may be, have never been beyond their native town, and never within the walls of a college, never can be beneficial to themselves or their clients, and cannot be creditable to the profession to which they nominally belong. THE LAW OF HYPOTHEC. THE Law of Hypothec is to be honoured by being the subject of inquiry by a Government Commission, and to be embalmed in a Blue Book. This is the present result of the various public meetings which have been held, to express the opinion of farmers and grain merchants on the working of this law, its value to landlords, and its effect on commerce. These meetings were called together in consequence of the decision in the case Graham Barns v. Allan & Co.; and, on the whole, the speakers exhibited great industry in their endeavours to understand what the law of This case comes opportunely at the present time. Some time ago there was a meeting of delegates, from various parts of Scotland, in Glasgow, to consider the best means of advancing the interests of the Sheriff Court practitioners, and we gave a brief notice of the objects contemplated and discussed at the time. We were extremely sorry to observe at this meeting a similar spirit to prevail to that which seems to animate a portion-we are glad to say only a small portion of the Hamilton procurators, to wit, a narrow exclusive spirit, which, not content with raising the standard of education, they would each draw round their own little burgh, or district, or county, a prohibitory cordon excluding all who had not conformed to certain local bye-laws. We protested at the time against this narrow and exclusive spirit, as against the spirit of the age and the best interests of the practitioners themselves. Practitioners a few miles apart seem to look upon each other, not as brethren belonging to the same branch of the profession, or as professionally on terms of equality, but as interlopers and robbers, whom it is necessary to put down and to snub on every proper occasion-hypothec was, and good sense and modesty in stating to whom it is scarcely thought necessary even to be civil. It is this isolation, acting and reacting on, it may be, residents in country towns, which has driven the body of practitioners before the Sheriff Court to be anything but a compact or brotherly body. It would be a better description of them to say they are disintegrated elements of a body, which we hope only require the elimination of the intervening obstacles to come together and be united. How very different is the position of the same branch of the profession in England and Ireland. There we find no exclusive spirit ruling any part of the body; all attorneys and solicitors are one body, and any one may go from the Land's End to the Solway, and he is made welcome. For anything we know, they may not claim this broad and brotherly practice as a virtue-it may be only a necessity, for it is enforced by Act of Parliament. The law in England provides, in express terms, that a solicitor or attorney, once admitted in London, may practise anywhere in England and Wales on production of his commission, and a certificate from the registrar. It to the meetings they addressed the results of their studies. In Barns' case the question was whether the right of hypothec extended to meal manufactured by the tenant from grain grown on the farm, the rent of which had not been paid. The tenants, M'Culloch and M'Kergow, had paid no rent for crop 1862, and on 15th December the landlord, Mr Graham Barns, sequestrated the crop and stock. Previous to the sequestration, M'Culloch had sold to Allan & Co. a quantity of oatmeal manufactured by the tenants from grain grown on their farm. The sale was in bulk at Allan's stores in Ayr, where delivery was given, and the price paid. Under the sequestration, sufficient to cover the rent due was not recovered, and the action was brought against Allan & Co. for payment of the meal, as covered by the landlord's hypothec. The case came before the Lord President (Macneil) and a jury; and in the face of a charge wholly in favour of the pursuer, the jury gave a verdict in favour of the defender. The pursuer thereupon moved for a new trial, on the ground that the verdict was contrary to the evidence. The motion came before the Court in It is very natural that If the June last, and the judges unanimously set aside the the repeal of the corn laws) has raised the price of verdict, and granted a new trial. It was a specialty land most materially, and the system now so generally of the case that the purchasers of the meal knew that adopted by the larger landowners, of setting up their the tenants' rent was not paid, and so were not intended still more to raise rents-some landlords takfarms to competition, or, in short, to auction, has bona fides in making the purchase. The question raised ing the highest rent offered without much scrutiny in the case did not therefore come up pure-that into the character or ability of the tenant. question being whether meal, a product of the grain tenant's capital is limited, his power of pledging the grown on the farm, was liable to the hypothec; as if produce of his farm is almost entirely restricted. If, so, another product, however remote apparently from after a certain time, he could pledge or dispose of his the native grain, would be so to. Whisky, for in- crop or stock, and so tide over a difficulty, he might be able to retrieve himself, and carry on his operastance, would, it was argued, under the rule attempted tions beneficially to himself as well as his landlord. to be established, be also liable to the landlord's But he cannot do this. His landlord steps in, and hypothec. The case for the defenders was that a new by the rough and expensive process of sequestration product from the grain, made by the tenants, carried sweeps away all he has, as well as his character and off the farm by them, and sold in bulk, it mattered not standing as a farmer. where—for it was not seriously maintained that the and the one which has roused public feeling so As regards the public. This is the chief grievance, defenders' stores were a public market—was not sub-highly; and it must be confessed the complainers ject to the landlord's hypothec. This is certainly a have good grounds for many of their complaints. new point in the law of hypothec; and it was against No precise time has been laid down where the right the apparent hardship of a bona fide purchaser being of hypothec expires; practically, it lasts as long as subject to restitution or double payment that the the grain is in existence-in one case the right was exercised after thirteen years. The only safety seems meetings we have referred to were held. to be that the grain is sold in bulk and in open As regards the landlord. market; but as times have changed in the modes of the law as it now stands should have been supported doing business, as a rule grain is now never sold in by the landed proprietors. It is a most beneficial bulk in open market. The landlord may therefore law to them, and saves them from much inquiry follow the grain ground by his tenant for the rent of about the character and solvency of any new ten- the year wherever he can find it, however fair and Whatever the tenant's character may be, if he honest the sale may have been on the part of the farms, even decently, the rent is always safe; and as purchaser. The question of a purchaser who has farms are now generally let and worked on the tenant is in difficulties, we need not be in doubt about any suspicion would be, Is your rent paid? but if the strictest commercial principles, the highest bidder the answer. Then what protection does an affirmain general obtains the farm. One unfortunate re- tive answer give which is untrue?-none whatever. sult is, that though a high nominal rent is obtained, The manifest injury which such a state of matters in numbers of instances the Gazette is reached by the does to trading, as between farmers and the public, unfortunate tenant in a few years after obtaining his must be obvious; and, on the whole, we trust that the Commission about to be issued may lead to some new lease, from the effects of high rents, and, it may legislative measure just alike to the landlord, the be, bad harvests. But even bankruptcy does not alarm tenant, and the public. the landlord, because, by a special clause in the present Bankruptcy Act, the landlord's right of hypothec is preserved from the levelling effect that Act exercises over all other creditors. The landlord, therefore, exacts or accepts a rack-rent irrespective of the tenant's circumstances, and may be altogether heedless whether in the end the tenant prove profitable either to himself or his landlord. This is an evil for which some remedy should be sought; and we think some definite limitation to the exercise of the right would in some measure assist in checking the carelessness of landlords and the recklessness of tenants. The law of England, we understand, limits the landlord's claim for his rent to one year, and for that he must do diligence. We think some such restriction would work beneficially for both landlord, tenant, and purchaser. ant. As regards the tenant. The competition for farms which has existed for some years (particularly since STATUTE LAW OF THE LATE SESSION. MANY bills were introduced during the last session of Parliament, but from several causes they did not reach the maturity of Acts. The mode in which Scottish Parliamentary business was conducted was made a party question, and the ground for attack on the ministry, through Mr Moncrieff, the Lord Advocate. No one who attends to the manner in which Scottish business is conducted can fairly deny that it might be greatly improved; but as improvement was not the issue before the House of Commons, nobody cared for the motion or the eloquence of the members for Ayr and Dumbarton. The office of Lord Advocate has always been understood to be a profitless one, Edinburgh, and the expense of travelling and living the salary not nearly covering the loss of fees in in London. That the business is done by the present Lord Advocate as well as by the most eminent of his predecessors, is generally admitted; but the question is, could it not be something better done by some other official? and that is a question which will never be satisfactorily settled so long as it is made a mere theme for declamation and party attacks. The Acts which have been passed affecting the law of Scotland are not many in number, nor of much importance; but we mean in this, and perhaps a succeeding number, to give a summary of them, and such as may seem of sufficient importance we shall print at length. 27° AND 28° VICTORIE, CAP. 30. AN ACT to provide for the alteration of the Circuits of the Court of Justiciary in Scotland, and for holding additional Circuit Courts (23d June, 1864). "Whereas it is expedient to make provision for altering the Circuits of the Court of Justiciary in Scotland:" Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: Power to Her Majesty in council to alter Circuits of Justiciary in Scotland. 1. It shall be lawful for Her Majesty in council, from time to time as Her Majesty in council may think fit, to alter the Circuits of the Court of Justiciary in Scotland, or any of them, to form new Circuits, to fix and determine the limits of each existing or new Circuit, and the counties, or portions of counties, cities or burghs, and districts, which shall be included within the same, to detach any county or portion of a county from any Circuit, and to include the same in any other existing or new Circuit; and also to fix and determine the places at which the Circuit Courts shall be held within each such Circuit, and to alter such places, provided always that Circuit Courts shall continue to be held at such towns as are appointed for keeping and holding Circuit Courts by an Act of the Parliament of Scotland, number forty, made in the year one thousand six hundred and seventytwo, intituled, An Act concerning the regulation of Indicatories, and an Act passed in the twentieth year of His Majesty King George the Second, chapter forty-three, intituled, An Act for taking away and abolishing the Heritable Jurisdictions in Scotland. Orders in council to be published, and date of taking effect. 2. Every Order to be made by Her Majesty in council in pursuance of this Act shall be published in such manner as Her Majesty in council may direct, and shall take effect from the date thereof, or from such other date as may be specified therein; provided always that before any such Order shall be made for altering the present arrangement, notice thereof shall be published in the Edinburgh Gazette at least three months previously, and an opportunity given to be heard thereon to the LordLieutenants, the Sheriffs, Justices of Peace, Commissioners of Supply, and the Magistrates of burghs of the counties to be affected by the proposed change. Power to Court of Justiciary to make Orders and Regu lations. 3. It shall be lawful for the Judges of the Court of Justiciary, and they are hereby required, from time to time to make such Orders and Regulations, and to pass such Acts of adjournal as may be necessary for carrying into effect the provisions of this Act, and of any Order to be made by Her Majesty in council in pursuance thereof. We would not like to seem wise above our neighbours-especially our official neighbours-but we would respectfully ask what was the use of such an Act as this? The very power here given to Her Majesty in council was possessed by the Sovereign before it became law. The Act for the abolition of heritable jurisdictions, 20 Geo. II., cap. 43, passed soon after the rebellion of 1745, specially empowered His Majesty to make new divisions and distribution of the Circuits by an order of the Privy Council. When such power was already possessed, it is inconceivable why the statute book should be loaded with another Act which seems to confer the same power which the Crown formerly possessed; and the 20 Geo. II. stands unrepealed. We much wonder the sharp folks of Greenock, who wanted their town made a circuit town, but who, it appeared, were disappointed, from the alleged want of power in the Crown, did not remember or discover the Heritable Jurisdiction Act, and attain their object sooner. 2. Interpretation clause. 3. Repeals that part of 1690, c. 30, which prohibited the sale of Vicarage Teinds on Fish, which had been possessed by ministers for their stipends. 4. The minister, Presbytery, and parties liable in payment of the Fish Teinds, may make agreements for their commutation or redemption, and to substitute a capital sum to be raised and invested. 5. Any ten persons liable to pay Fish Teind may apply to the Sheriff to call a meeting of the whole parties in the parish liable to pay, to consider as to the commutation of the Teinds. 6. A roll of parties liable, to be made up; and 7. Meeting of parties named in the roll to be called by the Sheriff, and the vote of the majority to bind the minority. 8. The majority of the meeting may resolve to approve of deed of agreement, or it may resolve to enter into a deed of submission, and to elect three of their number to sign such deed, and their subscription to bind all who are liable in all time coming. If one of the three so elected to sign shall be unable, the subscriptions of the remaining two shall be valid and binding. to one sole arbiter, and the minister, the Presbytery, and 9. The meeting may resolve to enter into a submission the three elected subscribers, to be the parties; the minister, the Presbytery, and the three persons, to have one vote, that is, three votes in all. 10. The Presbytery to be bound by the signature of their moderator and clerk, with the authority of the Presbytery. 11. General clause empowering arbiter to act and decern for a capital sum and for expenses, and his decree to be binding on all parties. 12. At the end of three weeks the arbiter's award or deed of agreement to be recorded in the Sheriff-Clerk's books. 13. The capital sum paid to be raised by the parties liable in Fish Teind resident in the parish, and under the direction of the Sheriff and procurator of the church, be invested in approved heritable security, in the names of the moderator and clerk of the Presbytery and the procurator of the church, and their successors in office as trustees. 14. Where capital sum raised and invested, Fish Teinds to cease to be collected and paid. Fish Teind have entered into a submission for their com15. Where minister, Presbytery, and parties liable in mutation, before the passing of this Act, the awards of the arbiter shall be binding on all parties. THE history of an Act of Parliament, from its first conception-passing through the hands of the draftsman, the Lord Advocate, the Chairmen of Committees, the Committee of the Houses-till the royal sceptre has touched it, or the antique Norman-French pronounced over it, would in many cases be as curious as instructive; and most assuredly no Act regarding Scotland, at least passed this Session, has such a peculiar history as the Summary Procedure Act. Those who know anything of it, know that, as a Bill, it was introduced into the House of Commons very much in the state it now appears as an Act, but between its first reading and its committal, about fifteen clauses were introduced, substituting a totally novel mode of appealing in every case brought under the bill. This at one sweep cut away every mode of appeal which at present exists, substituting a stated case to the Court of Session or Justiciary Court. It was said, how truly we know not, that this was another attempt by the Edinburgh bar to draw business thitherward. But whether or not, it was felt by many to be an unwarrantable interference with a mode of appeal with which the country seemed well satisfied, because it was near at hand, cheap, and speedy. Means were therefore adopted in various parts of the country, but more especially in Glasgow, whereby these obnoxious appeal clauses were struck out in Committee, but this was only attained after a great amount of resolute perseverance and watchfulness, and great expense; and more than once these labours seemed to have been on the point of being thrown away, by the strong and interested influence near, and brought to bear on, the Advocate. The secret of all this determination in the advisers or influencers of the Lord Advocate may not be known to many, and it may now be of no importance to find it out, but it could be no common motive which nearly defeated every contrary influence brought against it. The practical lesson to be learned from the history of this Bill, which we have here only indicated, is— that influences exist in Edinburgh to accomplish certain objects in which the country generally does not acquiesce; and that unless the country is watchful and vigilant, Edinburgh will sooner or later carry its object, regardless of the opinion and interests of the country. The importance of this measure, as now passed, induces us to give it in full, with all its forms and schedules: An Act to make Provision for uniformity of Process in summary Criminal Prosecutions and Prosecutions for Penalties in the Inferior Courts in Scotland.-[20th July, 1864.] WHEREAS by an Act passed in the Ninth Year of the Reign of King George the Fourth, intituled An Act to authorize additional Circuit Courts of Justiciary to be held, and to facilitate Criminal Trials in Scotland, Provision was made for the summary Prosecution of Offences before Sheriffs of Counties in certain Cases; which Act was amended by an Act passed in the Eleventh Year of the Reign of King George the Fourth and the First Year Act to amend an Act of the Ninth Year of His late Majesty of the Reign of King William the Fourth, intituled An King George the Fourth, to facilitate Criminal Trials in Scotland, and to abridge the Period now required between the pronouncing of Sentence and Execution thereof, in Cases importing a Capital Punishment: And whereas by an Act passed in the Nineteenth and Twentieth Year of the Reign of Her present Majesty, intituled An Act for amending the Procedure before Magistrates and Justices of Peace in Scotland, the Provisions of the recited Acts with respect to Summary Prosecutions were in certain Cases made applicable to Prosecutions before Justices of the Peace in Scotland: And whereas by an Act passed in the Seventh Year of the Reign of King William the Fourth and the First Year of the Reign of Her present Majesty, intituled An Act for the more effectual Recovery of Small Debts in the Sheriff Conrts, and for regulating the Establishment of Circuit Courts for the Trial of Small Debt Causes by the Sheriffs in Scotland, Provision was made for the Recovery of statutory Penalties by way of Action in the Sheriff Court in certain Cases: And whereas it is expedient to make further and more effectual Provision for the Trial of Offences punishable on Summary Conviction, and for the Summary Recovery of Penalties in the Inferior Courts in Scotland: Be it enacted by the Queen's most Excellent Majesty, by and with the Advice and Consent of the Lords Parliament assembled, and by the Authority of the Spiritual and Temporal, and Commons, in this present same, as follows: I. This Act may be cited for all Purposes as Summary Procedure Act, 1864." "The Meanings hereby assigned to them, unless such MeanII. The following Words in this Act shall have the ings shall be excluded by the Subject or Context: "Act of Parliament" and "Act" shall mean any Public General or Local and Personal Act of Parliament now in force or hereafter to be passed: I |