such Deed had been adjudged Bankrupt, and his Estate self becomes in such a case the sole judge of the were administered in Bankruptcy. 198. After Notice of the Filing and Registration of such Deed has been given as aforesaid, no Execution, Sequestration, or other Process against the Debtor's Property in respect of any Debt, and no Process against his Person in respect of any Debt, other than such Process by Writ or Warrant as may be had against a Debtor about to depart out of England, shall be available to any Creditor or Claimant, without leave of the Court; and a Certificate of the Filing and Registration of such Deed under the Hand of the Chief Registrar and the Seal of the Court, shall be available to the Debtor for all purposes as a Protection in Bankruptcy. 199. In case any Petition shall be presented for an Adjudication in Bankruptcy against a Debtor after his execution of such Deed or Instrument as is herein-before described, and pending the Time allowed for the Regis tration of such Deed or Instrument, all Proceedings under such Petition may be stayed, if the Court shall think fit; and in case such Deed or Instrument shall be duly regis tered as aforesaid, the Petition shall be dismissed. 200. If a Debtor cannot obtain the Assent of a Majority in Number representing Three-fourths in Value of his Creditors, by reason of his being unable to ascertain by whom Bills of Exchange, Promissory Notes, or other negotiable Securities accepted, drawn, made, or endorsed by him are holden, or by reason of the Absence of Creditors in a Foreign Country, or other similar Circumstances, it shall be sufficient if he obtain the Consent of a Majority in Number representing Three-fourths in ment as aforesaid; provided that Notice shall have been inserted by or on behalf of the Debtor in One or more Newspapers published in the County or Place at which he shall have carried on Business immediately prior to the Date of such Deed or Instrument, requiring his Creditors to signify their Assent to or Dissent from such Deed or Instrument by Notice in Writing addressed to the Trustee or Trustees thereof within Fourteen Days from the Insertion of such Notice, and that the Affidavit or Certificate of the Trustee or Trustees shall state the Circumstances of the Case, and the same shall be allowed by the Court, and provided the Deed or Instrument be in such Form as is expressed in Schedule (D) to this Act annexed, which shall vest all the Estate and Effects of the Debtor in the Trustees of such Deed, and provided that all such other Conditions as are hereinbefore required be duly complied with. Value of all his other Creditors to such Deed or Instru Various objections have been taken to the adoption, in Scotland, of this portion of the English Act, such as that the creditors of an insolvent do not necessarily all reside in the same town with the insolvent himself, so as to render an inspection of his affairs easy or practicable; they may not even all reside in the same country. That the insolvent him question as to whether the requisite majority in number and value have concurred in the agreement. That the minority can be easily outvoted to any extent by collusion. That the wholesome and in some cases essential publicity given to insolvencies under the present system is entirely abolished; and, That the question of expense, so requisite to be considered in cases of English bankruptcy, is, under the present Sequestration Act here, of comparatively little importance. But if the conditions set forth in the 192d section, which we have quoted, are carefully examined, all these objections appear to have been anticipated, considered, and provided for by the framers of the English Act. These remedies seem to have been thought sufficient in England, and they may be adapted to their judicial system. If they should not be found to fit into our system, sufficient checks against collusions and expense, and ordering the same publicity to which we are accustomed in Scotland, can very easily be applied. Those who object that the insolvent must be the sole judge of the number, overlook the fact that judicial authority must in some shape be interposed to the deed, as at present, with deeds of arrangement, and before that can be done, some one objecting creditor will be found to cause inquiry to be made whether the requisite number of creditors has consented. Judicial procedure in this country has not yet arrived at that undesirable secrecy and rapidity by which any man, however distant, can be cut off without a hearing; and if any creditor has, by distance or any unforeseen cause, been, up to a certain stage, too late, he ought to have the remedy of an application to the supreme court, or in such circumstances we would suggest that the Sheriff should have power, within a certain time, to recall the deed, and order all needful inquiry into this or any other point in which the rights of creditors are likely to be prejudiced from causes over which they may have had no control. We beg to be understood as not approving of all the details quoted from the Act. We think the idea worth consideration, and that it may be a useful addition to our bankruptcy code. How that idea is to be carried into operation, and adapted to our judicial system, must be left to the promoters of the Bill, although we see no difficulty in working out these details. THE SCOTTISH LAW AND SHERIFF COURT REPORTER. THE INSTANCE IN SUMMONSES. sona as trustee, he can enforce no right belonging to trusteeship. De non apparentibus et non existentibus eadem est ratio. In this way will be seen, still more distinctly, the legal necessity for stating expressly, in the instance of every summons, the persona whose rights and obligations are brought before a court of law for adjudication. It is the same necessity which compels the conveyancer to distinguish carefully the precise character of the granter or grantee of a deed. THE members of the community stand in various | quently, if he does not come before the Court in perrelations to each other, and these relations are classified in law under various heads. Thus, if a man is a trustee, the group of rights and obligations arising from his trusteeship constitute in law his persona as trustee; the relations in which he stands as partner of a company are classed under his persona as partner; and, in addition to such accidental relations, there is invariably a class of rights and obligations affecting a citizen as an individual, which is in law his persona as an individual. A man may thus possess several distinct personæ in law; but, of course, when his persona simply is spoken of, according to the ordinary rules of interpretation, his persona as an individual is understood. Acting on this principle, if a summons is raised at the instance of John Smith against Thomas Thomson, this means in law that a right in the persona of John as an individual, having a correlative obligation in the individual persona of Thomas, is sought to be enforced. If, on the other hand, a right belonging to John's persona as trustee is to be enforced, John appears in an altogether different legal persona, and consequently, besides naming himself, he must state explicitly in the instance that he is a trustee. Such are, or at least were, the principle and practice of distinguishing the different legal persona of the citizens who sue or are sued. They were founded on the primary principle that municipal law deals not with men as such, but as possessed of certain rights or subject to certain obligations; in other words, as connected with other men by certain relations which admit of classification. Did a man, if it were possible, possess neither rights nor obligations, he would cease to be an object of law, for he would have no legal persona. If a man has not the rights and obligations of a trustee, he has no existence in law as trustee; he has not, in other words, the persona of trustee. If he possessed such rights and obligations, he would necessarily have that persona. This, which is an elementary rule in conveyancing, is equally so in the practice of our tribunals. "The name and designation," says Maclaurin, I., 140, "must be accurately given in the narrative, and the "precise character or capacity in which parties severally "sue or are called, whether on their own account, or "as trustee, executor, or otherwise, must be distinctly "pointed out; and," he adds, though in this he is not supported by later practice, "a substantial error in any of these particulars does not admit of an amendment." Many other authorities, among which are Barclay's M'Glashan, pp. 164, 165, and Shand's Practice, p. 216, might be quoted, but it is surely triti juris that, at least "under the old practice, the "setting forth of the pursuer's title in the summons "was a matter requiring strict accuracy;" p. Lord J.-C., Anderson v. Calder, 9th Jan., 1861. The rule on this subject was thus perfectly clear previous to the passing of the Sheriff Court Act of 1853, and that Act has, we think, been commonly understood by practitioners as sanctioning no relaxation of its stringency. Vide Soutar's Styles, passim. One of the Glasgow Sheriffs, in a case decided some time ago, refused, as a matter of course, to hold the name and individual designation of an assignee, who was pursuer, as a sufficient compliance with the statute, and the like has been held, we doubt not, in many other cases. In Sweeney v. Livingston, however, reported in the last number of this Journal, page 112, the Sheriff of DumConse- bartonshire, (Robert Hunter, Esq.) taking an opposite members of any profession. But jurisprudence, in common with every other science, is possible for the human mind only by the use of much division and classification; and the results of such classification must be preserved for every day use in forms. Hence it is that some forms, like that under consideration, indicate and represent, in daily practice, radical principles in the sciences to which they belong. The preservation of such forms is, consequently, important, not for their own sake, but for the aid which they give in fixing attention upon essential principles. JUDICIAL STATISTICS. SUMMARY OF "Return of litigated cases finally decided during the causes. "Return of the total number of Small Debt causes (not being decrees in absence) decided in each Sheriff Court in Scotland during the same period, showing the number thereof decided at the first sitting, the total amount of expenses awarded against the losing parties, and also the average amount per case of such expenses." view from that of his Substitute, explained in his The order on address of House of Commons, moved by Mr Caird, 29th April, 1861. Return ordered to be printed 7th February, 1862. First.-Summary of Court of Session Returns. Number of cases finally decided within the year 1860, One One One One "" -28 "-24 66 66 Five"-17 "-16 above £100 in 286 cases; the highest amount was £1012, the lowest £2 2s. In 50 cases, the expenses awarded were at and under £25. 4th.-Sheriff Court, Aberdeen (one Sheriff-Substitute). Litigated cases finally decided within the year 1860, 128. In dependence upwards of one year, 47. One for three years. Second.-Summary of the Sheriff Court Returns of the One for six years. Four Courts. (NOTE.—Why was Edinburgh, with three Substitutes, excluded?) 1st. Sheriff Court of Glasgow (four Sheriff- Litigated cases finally decided within the year 1860, giving the names, 390. In dependence upwards of one year, 28. One-three years. Seven-two years. Eighteen-upwards of one year. The highest sum of principal decerned for, £568. Decrees for principal sums above £25 were given in 80 cases. The lowest principal sum decerned for was 30s. Decrees for expenses were given for sums above £10 in 78 cases. The highest award of costs was £52. in dependence 2 years and 54 days.) The lowest award of costs was Gs 1d. been in dependence 2 years, and the defender was ultimately assoilzied.) (The case was 11. Inverness.. 135 19 6 88 4d 12. Banff........... 344 (The case had 4s 5d 14. Argyle.... 316 259 66 8 8 4s 2d 15. Dumfries 2d-Sheriff Court, Perth (one Sheriff-Substitute). Litigated cases finally decided within the year 1860, 100. In dependence upwards of one year, 34. Two for three years. Nine for two years. Twenty-one for upwards of one year. Decided within one month, 7. The shortest, seven days. The highest sumn of principal decerned for, £442. Decrees for principal sums above £25 were given in 11 cases. Decrees for expenses were given for sums above £10 in 38 cases. The highest award of costs was £55. (The case had been in dependence for 3 years 104 days.) The lowest award of costs was 25s. 3d.-Sheriff Court, Ayr (one Sheriff-Substitute). Ten for two years. The highest sum of principal decerned for was £500. 15 cases. Decrees for expenses above £10 were given in 19 cases. 30. Cromarty.. 31. Peebles...... 32. Shetland...... 33. Kinross 34. Selkirk.. COUNTY COURT JUDGES. THE following extracts from an excellent article on "County Court Legislation," contained in the August number (No. 26) of the Law Magazine and Law Review, are worthy of consideration, and apply far more to Scotland than to England. The article gives the history of the County Courts, and ably argues for a farther extension of their jurisdiction, but still falling very far short of what has been long exercised by the Sheriffs in Scotland. The following judicious remarks are made on the qualifications for a County Court Judge:-"There is, indeed, hardly any judicial office that requires so many and varied qualities for its satisfactory dis charge as that of a County Court Judge. A knowledge of the principles of the law, of the cases decided in each department, with the mode of dealing with and testing evidence, of the manner of conducting examinations and cross-examinations, is essential to him. It is also necessary that he should have an extensive knowledge of the world, so as to be able to form a correct opinion of the character of witnesses from their manner and deportment; that he should be acquainted with the artifices and resorts of the advocates who come before him; and that he should be endowed with a ready perception and a sound judgment, and, above all, a complete command of temper. A Judge of a County Court should, moreover, be courteous in his demeanour, but he must not be too compliant; and he ought to be affable, but on no account to be too free, either with parties or practitioners. How few persons possess many of these desirable qualities? Yet an efficient County Court Judge ought to be gifted with the whole of them. What other judicial office, we may inquire, demands so many and, we may add, such rare qualifications for its adequate fulfilment? Indeed, the requisites to make up a very respectable occupant of the woolsack are hardly so numerous. Divers very eminent and much-lauded Chief Justices, who have passed through their career and been gathered to their fathers with the good opinion of all mankind, have not been blessed with a tithe of these endowments. For a commissioner in bankruptcy we might dispense with half the catalogue of requisites which we maintain to be essential in a County Court Judge, and yet bankruptcy commissioners receive much higher salaries than County Court Judges, while the duties of the former are less onerous, less complicated, less diversified, and require far less legal knowledge than do those of the latter." "As a matter of justice, it does appear that some increase of the salaries of County Court Judges ought to be made, considering, more especially, how vast have been the additions to the labours imposed upon them since the system was originally established and their salaries were fixed at £1200 a year. A revision of the scale of salaries ought also to be made; and as we have advocated a distinction in rank between the different judges, corresponding with the importance and onerous duties imposed upon them, so ought there to be also a corresponding difference in their salaries. Had the County Court Judges been paid by fees instead of by fixed salaries, as originally intended, they would each have been fairly remunerated according to the labours they performed." "We believe that the promotion of the Judges of the County Courts would do more to secure the acceptance of the office by efficient men than any amount of salary that could be given to them." "A notion is gaining ground that to accept a County Court Judgeship is at once a bar to further promotion, an acknowledgment of inferiority, and an abnegation of all hopes and aspirations for professional advancement—a mischievous doctrine, which, if not promulgated or openly avowed by authority, is acquiring a pernicious credence in Westminster Hall, sanctioned as it is by an unbroken custom of fourteen years.' ""By making County Court Judgeships the regular and indeed the only road to higher promotion, we should secure the first judicial talent for these tribunals, and the Superior Courts would in turn derive the great advantage of having none but tried men to preside there. As things now are, many a man when promoted to the bench is found to be greatly wanting in these important qualifications, which are most desirable and, indeed, essential in a judge, although his skill as an advocate was unquestioned. What excellent preparation, moreover, for the higher duties of a judge in Westminster Hall does the practice of sitting as a County Court Judge afford, especially in places where the business is so large and so important as it is at Liverpool and other great towns. Experience of the most valuable kind is acquired by the County Court Judges as regards the mode of receiving and dealing with evidence of each kind, and above all, of applying its principles to the cases they have to try." "Most heartily do we also wish that the legal profession, and above all the County Court Judges, especially the latter, would co-operate more together in the origination and support of measures, such as those to which we have alluded. The country, and the Parliament too, is heartily on the side of the County Courts, as regards conferring on them the extension of their jurisdiction, the promotion of their judges, and the fair remuneration of them for their arduous labours. Let them do justice to themselves, and the nation will soon be ready to do them ample justice." Review. PUBLIC HOUSE STATUTES, with Notes, Decided Cases, and Extracts from Commissioners' Report. Arranged by HUGH BARCLAY, LL.D., Sheriff-Substitute of Perthshire. Edinburgh: T. & T. Clark. both in the Lords and Commons, who insisted on conWHATEVER might have been the motives of the party, solidation and amendment, in place of amendment only, of the Public House Statutes, there can be no doubt that some difficulty will be experienced in working the several Acts in place of one embracing all the law. Indeed, the necessity of consolidation was admitted on all hands, the immediate question being whether it should have been last Session, before adding another Act to the Statute Book, or afterwards. The necessity for legislation on such obvious, and without detriment to any interest might very a subject during the Session of 1861-62 was not very well have been left over for another Session at least. But so the Member for Bute willed it not; and meantime we have another Public House Act. Until consolidation has been accomplished, the little book by Sheriff Barclay will be indispensable to all whose duties Public House Acts, and we recommend it as a handy lead them to administer or assist in administrating these conspectus of the statute law, as well as decided points; and for the useful Notes by the learned Sheriff, and several extracts from the Commissioners reports on which portions of the new Act have been based. By the bye, why should the recent Act not have got christened by the name of its author? Why not "Mure's Act," as well M'Kenzie's" Act? The custom of so naming laws is a as "Home Drummond's Act," or the misnomer, "Forbes very ancient one, and should not have been departed from in this instance, unless indeed the learned member had a dislike to this species of immortality. |