the Court is satisfied that the father is, by reason of intemperate habits or immoral conduct or otherwise, an unsuitable custodier of such pupil child or children, or that he has without sufficient cause removed such pupil child or children from the society of the mother or the mother from their society, and when in any of the above cases the Court is satisfied that the interests and welfare of such pupil child or children will not be prejudiced by their remaining or being placed in the custody of the mother, the Court shall order that the mother shall have the custody of such pupil child or children, for such time, and subject to such regulations as to access by the father, as the Court may think proper: And further, the Court may ordain the father to pay such reasonable sum as they shall, in the whole circumstances of the case, from time to time fix, for or towards the maintenance, clothing, and education of such pupil child or children, while in the mother's custody; and the mother shall be entitled to sue therefor in her own name.

2. Any orders or decrees made by the Court in pursuance of this Act may be altered or modified upon the occurrence of new circumstances, and that without the necessity of raising any new process in Court.

3. The word "Court" shall mean one of the Divisions of the Court of Session or a Lord Ordinary, according as the question is competently before the one or the other, and in vacation the Lord Ordinary on the Bills shall have the whole power of a Division of the Court, subject to review of the Court.

4. This Act may be cited as The Pupils' Custody (Scotland) Act 1873.

RESOLUTION of the Society on the foregoing Report.

The Society approve of the Report of the Committee, but without adopting the terms of the Draft Bill; and they are of opinion that all questions as to the custody of pupil children should be left to the discretion of the Court, on a consideration of the whole circumstances of each case, and that the principles of the law of England and Scotland on this subject should be assimilated.

"THE ENTAILED AND SETTLED ESTATES (SCOTLAND)
BILL, 1873."

Committee.-Messrs. JOHN CLERK BRODIE, JOHN CARMENT, JOHN M'LAREN,
DONALD CRAWFORD, and J. C. LORIMER. Mr. BRODIE, Convener.

WHETHER the Law of Entail in Scotland, and the Law of Settlement in England, which by the passing of the Rutherfurd Act in 1848 have been very nearly assimilated, ought either in the interest of the public, or of heirs of entail in possession, to be modified, and if so, to what extent, are questions of general policy of much importance and interest. Some members of Com

mittee are of opinion that considerable modifications of the existing law of entail should be made in the direction aimed at by the Bill; but the majority of the Committee believe that it is best to refrain from discussing these general questions in considering the present measure, as, in their opinion, the present scheme requires to be further matured and recast by its framer before being passed by the Legislature.

The Bill proposes alterations on the existing law of entail, but not in the direction of restricting either the period for which owners of land in Scotland may render it inalienable, or place limitations on its free disposal, or the extent to which they may carry such limitations.

One of the effects of the Bill on future settlements would be that persons in life at their date, called to the enjoyment of the settled. estate, would have conferred upon them merely liferent interests instead of limited fees as at present, and that such limited fees would be taken only by persons unborn when the settlement was executed; and as a liferent-owner possesses far less powers than a limited fiar under existing entails, this change would not increase but lessen the powers of persons in possession for the time of settled estates.

Another, but so far as it goes, a useful effect of the Bill on future settlements, would be to render unnecessary the interposition of a Court when the person in possession becomes absolutely entitled in fee-simple, and to operate that effect at once without such interposition. The same result might be attained in existing entails by rendering unnecessary any disentail at the sight of the Court. But it is far from being clear that, either in the interest of the public, or of limited proprietors themselves, it is desirable to dispense with a Register of Tailzies, or Settled Estates, or not to require to be entered in such register intimation of the enfranchisement of lands previously inalienable, and of the removal of fetters appearing on the public records. The petitioning the Court however, for access to such a Register may, it is thought, be safely dispensed with.

Except in the two particulars now specified, the system of settlements which the Bill would introduce and the present system of entails do not materially differ; and therefore, as mentioned at the outset, the Bill raises no question as to the general expediency of entails, or settlements, or the extent to which they may be reasonably carried.

It is obviously of no real moment whether the instrument operating the tying up of estates be called an entail or a settlement, or the land tied up an entailed estate or a settled estate, or the persons called to the succession heirs of entail or liferenters and limited fiars. The points of importance are the time for which, and the extent to which, estates may be placed under fetters, and with respect to these there is really no material differ

ence between the settlements the Bill authorizes for the future and the entails that presently exist.

But, on the other hand, there is a very marked difference in the method of dealing in the Bill with these future settlements and present entails.

The

There is no provision in the Bill for any earlier termination under it of future settlements, than of existing entails under the present law. But several new provisions, not applied in any way to future settlements, are introduced (Clauses 1 and 8) for terminating, or opening, existing entails sooner than under the present law. reason for this is not obvious. If the modes of opening existing entails be thought not enough, that may be a reason for introducing new ones, but for introducing them for future settlements as well as for existing entails.

The object of destroying settlements made in the past, under circumstances in which you preserve those to be made in future, and of making important differences in the effects of settlements, simply because of their being executed a year earlier or later, is not easy to understand. The true principle would rather seem to be that nothing should be disturbed in the past that is permitted for the future. But so far from this being the principle of this Bill, it will destroy a great number of entails very recently made, and differing only in name-not in substance-from the settlements it allows in future. Such will be the effect of the four first sub-heads of Clause 1, by means of which many recent entails will be set aside on grounds that have no effect against the settlements which the Bill permits.

But the provisions which have been referred to (Clauses 1 and 8) are open to a far more serious objection, and one which is enhanced by the circumstance that these provisions are not made applicable to future settlements. In effecting changes in the law the general principle is to preserve the rights and interests of existing individuals; and there can be no reason for abandoning or traversing a principle so manifestly just in order to introduce changes in the past which it is not thought worth while to establish for the future. Yet the provisions in Clauses 1 and 8, which the Bill applies to past entails, and not to future settlements, are such as will affect most injuriously, in a great many cases, the interests of existing persons. For instance, by Clause 1, sub-head 2, an apparent heir having at present no right whatever to disentail, is entitled to do so, and to destroy the interests of all existing substitutes, whose interests may be far more valuable than his own; and under Clause 8 existing heirs of entail, on the eve of succeeding to the estate, may be burdened with large sums of money to which it is not at present subject. There appears no sufficient justification of these or other similar interferences with the private interests of individuals.

There are several subsidiary clauses in the Bill of less importance,

to which it is not thought necessary to advert. But it is material to notice that Clause 11, which has been already commented on as one of the leading clauses in the Bill, is extremely defective, insomuch as to be quite inefficient for the accomplishment of its objects. Such Settlements as it seeks to introduce are, except in the form of entails, entirely new to the Law of Scotland, and by abolishing entails, and the Act of 1685 upon which they rest, it destroys the only method known to the Law of giving them any efficacy.

A further object of the Bill, proposed in Clause 12, is the introduction into Scotland of provisions somewhat similar to those of the English Law of Mortmain. It seems highly proper, in a matter of this description, that the laws of the two countries should not materially differ. JOHN C. BRODIE, C.

While concurring in the approval expressed by a section of the Committee of the object aimed at by this measure, I am strongly of opinion that the subject of the Law of Entail is one demanding very careful investigation preparatory to legislation. I think it would be possible for the Government, without the formality of a Royal Commission, or taking evidence, to obtain a report from two or more lawyers specially conversant with the English and Scotch systems of settlement of estates, in which the practical operation of these systems, and their advantages and disadvantages, should be examined, with a view to the more complete assimilation and amendment of the laws of England and Scotland. Such a Report should embrace an estimate of the probable effects, (with reference. to public interests, as well as the interests of proprietary families,) of the more important schemes of limitation of the testamentary power which have been propounded by lawyers and literary men. This appears necessary, because it can easily be shown that measures which have been recommended in good faith with the view of liberating the land of the country from restraints upon alienation have really a directly opposite tendency.

If limited interests in land are to be permitted in any form, it will then be a subject of consideration which is the most convenient form of Settlement? eg. whether that of a succession of limited fees, as in the existing Scotch system, or the method of successive life estates protected by trusts, which prevails in England, or something distinct from both.

My view as to the desirability of an official inquiry is founded partly on the consideration of the great magnitude of the interests at stake, and partly on the extremely technical character of the system of conveyancing in which the Law of Entail is involved, which must render it very difficult for the majority of the members of the Legislature to form independent opinions on the merits of the measures which may be submitted to their consideration. JOHN M'LAREN.

EDINBURGH, 22d May 1873.

361

The Month.

Important Judgment of the Court of Cassation.-A case affecting British interests in the highest and most important degree was last year decided in the above Court. In 1869 a British subject, residing and doing business at Honfleur, but not having legal domicile in France, purchased a steamer in England, and, not having sufficient means to pay for it entirely, mortgaged the vessel to certain parties there. He died at Honfleur in the commencement of 1870, his estate was declared bankrupt, and the steamer, which was at the moment in that port, was seized by the Syndic of the Bankruptcy. The mortgagees came over from England, protested against the seizure, and the case was tried before the Tribunal of Commerce at Honfleur, which gave a judgment in their favour. The Syndic of the Bankruptcy appealed to the Superior Court at Caen, which gave a judgment in July 1870, reversing that of the Tribunal of Commerce at Honfleur on various grounds, but chiefly that the French law does not allow personal property to be mortgaged, and that therefore no notice could be taken of the transaction. They also laid particular stress on the fact, that by the Merchant Shipping Act of 1854 mortgages are not obliged to be inscribed on the ship's register, and they held this to be an insufficient protection to persons at a distance. The case was taken by the mortgagees to the Court of Cassation, but owing to the late war their decision was not given till March 1872, when it confirmed that of the Court of Caen. The importance of this case cannot fail to be seen. A mortgage contracted on British soil by British subjects, in due conformity with British law, is declared invalid and of no effect by the French Tribunals. If this case is to be established as a precedent, any British subject lending money on mortgage on a British ship must run the risk of the vessel coming to France and being there seized, and of his mortgage being declared invalid by the Courts.-Report by Consul Bernal on the Trade Navigation, and Commerce of the Consular District of Havre for the year 1872.

General Council of Procurators.--At the periodical diets of examination at Edinburgh, by the examiners of the General Council, which were brought to a close on 7th June last, the following applicants were found duly qualified for admission as Procurators, viz. :— Messrs. William Stuart, Aberdeenshire; Archibald Oliver, James Guthrie, R. D. Leslie, and Robert Scoular, Argyleshire; Alexander Hamilton, Ayrshire; Alexander Jardine and John Corrie, Dumfriesshire; A. R. Hogg and Thomas Graham, Edinburgh; J. A. Jeans, Elginshire; Andrew Bennet, John Simpson, William Ford, W. B. Dickie, J. Smith Bell, James M'Kenzie, and George Ogilvie, Forfarshire; Alexander Kennedy and Francis W. Colville, Inverness-shire; A. J. Gordon, Kirkcudbrightshire; John Adam, Joshua