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neglected that the exposition of it by so high a place must be regarded as a signal service to the law. We cannot do better than quote it:
“There can be no difficulty for a party, if his record is properly framed, to extract the proper issue for the trial of the cause ; for I do not understand how any one can frame a record properly without having in his mind the issue he wishes to try, and selecting from the materials before him those, and those only, that are pertinent to that issue. To throw into a record alí matters directly or indirectly connected with the case, or having any possible bearing on it, is not the right way of framing a record; it may save the trouble of thinking at that stage, and relieve from the labour of selecting and arranging the materials; but it is not the right way of framing a record, and it multiplies the subsequent labour and risks of miscarriage, and adds greatly to the expense. A party should, while preparing the record, have the issue he wishes to try steadily in view, and direct his materials to that end; and if he has done so, there can be no reason, after the record is closed, for prorogating the time for lodging issues, unless under very special circumstances indeed, e.g., the illness of his counsel, or the like."
Similar advice is given in the chapter on “Pleadings” in Mr Clark's valuable book on Partnership and Joint-Stock Companies -a chapter which suggests the utility of a larger treatise on the subject of pleading.
Reference should be made to the strictness which both divisions of the Court have properly used in dealing with reponing notes against decrees by default. The case of Mather v. Smith, Nov. 28, 1858, 21 D. 24, in which a party was three times reponed, has been a stock precedent in such applications. The Lord President says, that the Court there went very far, and that he is “not disposed to give it that character,” and a second reponing note was refused in respect no sufficient grounds had been stated, Pearson v. M'Gavin, May 29, 1866, 4 Macph. 754. The Second Division a fortnight later went a step farther, and pronounced a judgment intended to "form a useful precedent,” to the effect that "when a reclaiming note is presented by a party praying to be reponed against a decree by default, it is not a matter of course that he shall be reponed, even on the condition of paying full expenses. It is always a matter for the discretion of the Court.”— Per Inglis, J.C., in Arthur v. Bell, June 16, 1866, 4 Macph. 841. In Arthur v. Deuchar, May 12, 1866, 4 Macph. 705, a reponing note against a decree by default in a suspension in the Bill Chamber, where answers had been lodged, was refused as incompetent. “There is no such a thing as a decree by default in the Bill Chamber." VOL. X. NO. CXX.- DECEMBER 1866.
The Antermony Coal Company, March 7, 1866 and June 30 1866, 4 Macph, 544 and 1017, has been acquiring a place in the annals of the law similar to that long held by the Culcreuch Cotton Company. It has, or rather had, two partners, one of whom is abroad. The remaining partner suing Wingate and Co. in the company name, was met by a motion that a mandatary for the absent partner should be sisted. This was refused on the ground that a solvent partner was in the country. Subsequently, in revised defences, the plea of want of authority to use the name of Walter Wingate, the absent partner, in the instance was raised and repelled. This gave occasion for an authoritative resumé of the doctrine of suing by descriptive firms with joinder of three part
The general doctrine was stated nearly as it has been laid down by Mr Clark (p. 537 sqq.). The majority of the Court was inclined to hold the instance in this case good, even if one partner (there were but two) should disclaim. The fact, however, that the absent partner was also a defender, as a partner of the firm sued, enabled Lord Deas to rest his judgment on the narrower ground, that " where a party is liable as defender he is not entitled to refuse to become a pursuer if his concurrence be necessary to the validity of the action." His Lordship also founded on the absence of actual disclamation by Wingate; and the other Judges, though also relying on larger principles, seemed to concur in thinking these specialties sufficient for the decision of the particular question raised. The first appears to be an example of the principle of personal bar so largely applied in this class of cases both in Scotland and England (see Clark, p. 544 sqq.). But it may be asked, why should that principle apply here, the defender not being Wingate the partner of the Antermony Company, but Wingate and Co., a separate persona, consisting of Wingate and G. C. Bruce, the individual really defending? This seems to justify the majority in referring their judgment to a more general principle.
In Paterson v. Moncrieff, May 15, 1866, 4 Macph. 706, trustees stated as a defence to an action by the representatives of a child of the truster, that they had, living the children, elected as their tutors and curators nominate, to take certain provisions under the settlement in lieu of legitim. The Lord Justice-Clerk, in his judgment repelling this defence, laid some stress on the fact that the trustees had never entered upon the office of tutors and curators in the manner prescribed by the Act 1672 c. 2;
and therefore had never put themselves in a position to renounce the right to legitim, if that were competent to them (which in the circumstances was very doubtful). It is believed that very many tutors and curators nominate altogether neglect to make up inventories as required by the statute—the consequences of which, though the rule of the Roman law, Tutor qui repertorium non fecit, dolo fecisse videtur, is not received in Scotland, may be very serious both as regards themselves and their pupil. It is worth considering, whether the simpler forms introduced by the Pupils' Protection Act for tutors at law and tutors dative might not be beneficially extended to all tutors. At least the necessity of having recourse to the Inner House in all cases where the next of kin reside out of Scotland might be removed, and as Mr Fraser (Parent and Child, p. 198) suggests, it might be made competent for the Lord Ordinary before whom the process depends to dispense with citation of next of kin.
The Second Division has pronounced some useful decisions on points of Sheriff Court practice. We formerly noticed (Journal for July) the case of Dickson v. Murray, June 7, 1866, 4 M. 797, in which it was held that the provisions of $ 10 of the Bankruptcy Act 1856 and 9 of the Bankruptcy and Real Securities Act 1857, do not make reductions under the Acts 1621 and 1696 and at common law competent in the Sheriff Courts. In Murphy v. M'Keand, Feb. 15, 1866, 4 M. 444, Sheriffs were warned of the mischief which “arises from granting interim interdict where the circumstances do not warrant such a course of procedure.” The excessive indulgence practised in adjourning diets of proof for the accommodation of agents was also reproved and it was held in point of law that an interlocutor reviving allowance of proof is the same as one allowing a proof, and may therefore be appealed under sec. 19 of the Act. The jurisdiction of the Sheriff in questions of possession of heritable subjects is elucidated in Maxwell v. Glasgow and S.-W. Railway Company, Feb. 16, 1866, 4 M. 447 ; and his jurisdiction in summary removings in Nisbet v. Aikman, Jan. 12, 1866, 4 M. 284. In Byres v. Forbes, Feb. 7, 1866, 4 M. 388, the Second Division adopted the strong measure of ordering a trial by jury, and refusing to look at a proof which had been led in the Sheriff Court before a Commissioner, on the ground that it was incompetent under sec. 10 of the Sheriff Court Act. The parties had acquiesced in this form of procedure, and it might perhaps be held
that the doctrine of the House of Lords in Craig v. Duffus, 6 Bell 308, Mag. of Renfrew v. Hoby, 2 Macq. 478, and in the late case of White v. E. of Morton, July 13. 1866, 10 Journ, of Jur., Dig. of Cases, 201, should have been applied here. The case having been taken out of the ordinary course of judicial procedure “ by consent of parties, the judgment of the SheriffSubstitute being in reality that of an arbiter, would in this view have been final. What then would have become of the subsequent judgments of the Sheriff, Lord Ordinary, and Court of Session? It would seem, from Morris v. Bicket, in the House of Lords, July 13, 1866, 10 Journ. of Jurispr. Dig. of Cases 190 ; 1 Law Rep. Sc. and Div. Ap. 47, that the defender, having appealed to the Sheriff, was barred from objecting to the competency of any subsequent process of review at the instance of the pursuer, who was the advocator. It may therefore be suggested that it was not "incompetent” for the Court to look at the proof in question, although it may have been competent for it to refuse to take cognizance of proceedings which had once been taken out of the ordinary course of judicial procedure. The House of Lords, however, did not on this ground refuse to look at the proof in Morris v Bicket.
Legal Appointments.—Mr. W. A. Parker has been appointed chief judge and '
magistrate of the Gold Coast. Mr. Parker was called to the bar in 1853. His predecessor has been promoted to Penang—a principle the recognition of which by the Foreign Office will certainly secure a higher stamp of judge than in times past for the less valuable of our Colonial appointments.—Mr. J. Guthrie Smith has been appointed Sheriff-substitute of Dundee in room of Mr. Ogilvy. He thus returns to the county in the rural districts of which he gave so much satisfaction when Sheriff-substitute at Forfar,
Winter Circuit.—The Glasgow Winter Circuit has been fixed for 26th Dec., at half past twelve o'clock. Judges, Lord Deas and Lord Ardmillan ; Advocates-Depute, Mr. R. B. Blackburn and Mr. Roger Montgomery; Clerk, Mr. Æneas Macbean.
DECIDED IN THE
HOUSE OF LORDS, COURT OF SESSION,
COURT OF JUSTICIARY, &c.;
SELECTIONS FROM ENGLISH DECISIONS
VOLS. IX. AND X. OF JOURNAL OF JURISPRUDENCE,
FROM 20TH JAN. 1865 TO 20TH DEC. 1866.
EDINBURGH: T. & T. CLARK, LAW BOOKSELLERS, GEORGE STREET. GLASGOW: SMITH & SON. ABERDEEN: WYLLIE & SON.
LONDON: STEVENS & SON.