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THE

SCOTS LAW TIMES

VOLUME II

MAY 19 1894 to MAY 11 1895

Edinburg B
PUBLISHED BY C. E. GREEN AT THE OFFICE

18 and 20 ST GILES STREET

Γ THE

ICE

AND

Supplement to Scots Law Times,18th May 1895.]

L17984

NOV 28 1940

NEILL AND COMPANY, PRINTERS, EDINBURGH.

THE SCOTS LAW TIMES.

EDINBURGH, MAY 19, 1894.

| as a man of honour and probity, have secured to The HONOURABLE LORD KYLLACHY.

you the confidence of your brethren, and in like W ILLIAM MACKINTOSH, Q.C., LL.D., manner will command the high consideration and

W son of William Mackintosh of Inshes House, respect of the Court." In 1889 Mr Mackintosh sometime Provost of Inverness, was born in 1842. was raised to the Bench, with the judicial title He was educated

of Lord Kyllachy. at the Edinburgh

Since 1889 he has Academy and at the

been a member of University of Edin

the Universities burgh. In 1862 he

Commission; in graduated as M.A.,

1889 he received with first-class

the degree of LL.D. honours in Mental

from the University Philosophy; was ad

of Edinburgh; and mitted to the Faculty

he is a Deputy-Lieuof Advocates in 1865,

tenant of Edinburgh appointed Procurator

and of Inverness. of the Church of

At the bar Mr Scotland in 1880,

Mackintosh was and Sheriff of Ross,

known as an inCromarty, and

dustrious and sucSutherland in 1881.

cessful counsel, and In February 1886

for many years bethe Faculty of Ad

fore his elevation vocates unanimously

to the Bench his elected Mr Mackin

services were so tosh to be their

highly valued that Dean, and in this

he was employed on capacity he presided

one side or the other at the banquet in

in almost all the the Parliament

leading cases in the House on the occasion of Her Majesty's Jubilee. Courts. His pleading was lucid and thorough ; When welcoming the new Dean after his election, and he possessed the too rare faculty of putting the Lord President (Inglis) said :-“Your suc- his case clearly before the Court, and giving it cessful career as a professional lawyer, your real assistance by his argument. The conduct reputation for learning, your accomplishments, of a large practice is bound in some way to leave and the high character you have always sustained its mark, and the pressure and strain of these

VOL. II.—No. 1.

[graphic]

years have developed in his Lordship a taste of such houses-infinitely greater than those for brevity and conciseness which, if it could be mentioned in the preamble ; and it is a wanton gratified more fully, would greatly facilitate the interference with the freedom of contract between proceedings of the Court.

| landlord and tenant. Of Lord Kyllachy as a Judge there is but one opinion-held by all branches of the legal profession and by laymen alike—and that is, that no one more capable or more deeply versed in the law has ever dignified the Scottish Bench.

A RECENT CHANGE IN THE LAW OF Lord Kyllachy is a man with many friends and

IMPRISONMENT FOR DEBT. many interests. He is a keen golfer, and devotes

The Statute Law Revision Act of 1892 has much of his spare time to the care and development of the estate in Inverness-shire from which

effected a considerable change in what remains he takes his title.

of the law of imprisonment for civil debt, which we think the profession generally are not aware of. When the Debtors (Scotland) Act, 1880, was passed, which abolished imprisonment for debt in Scotland, there were certain exceptions made, viz.,

taxes, &c. due to the Crown, rates “and assessEditorial.

ments” lawfully imposed, and sums decerned for

aliment; and the Civil Imprisonment Act of 1882 Owing to the expression of a very general wish specially dealt with imprisonment for rates and on the subject, we have decided not to number assessments, and for sums decerned for aliment, the pages of the reports of cases separately from regulating the procedure in regard to the power to the rest of the paper.

imprison for such debts. It specially provided (šection 4) that any person wilfully failing to pay any sums of aliment decerned for within the days

of charge might be imprisoned for a period not A curiosity and monstrosity amongst legislative exceeding six weeks; and sub-section 6 of that proposals has been introduced into the lIouse of section abolished the ridiculous practice of making Commons, and named The Smaller Dwellings the incarcerating creditor liable for the aliment of Tenure (Scotland) Bill, 1894. The 4th clause the debtor, and put such debtor in the position, as proposes to enact that “No dwelling-house of a he undoubtedly is, of one guilty of contempt of less annual value than £15 of yearly rent situated Court. within a burgh shall hereafter be lat for a longer In virtue of this Act, it is quite common for an period than one month, unless a garden is let along unwilling debtor in aliment cases to be sent to with and as a pertinent or adjunct of such dwell- prison; and indeed, in far more cases, it is the fear ing-house, any law, custom, or aspreement to the of this course being resorted to that makes debtors contrary notwithstanding, and the period of the pay. Of course this applies, or rather, as will be let of all such dwelling-houses shall expire at seen, applied, equally to the cases in the Small noon on the twenty-eighth day of a month.” Debt Court as in the ordinary Court. This might be made a little more drastic, but By the Revision Act of 1892, however, it is certainly not more ridiculous, by the imposition declared that the word "imprisonment occurring of a penalty on any one letting a house, or taking in the text and schedules of the Small Debt Act a house, of the value specified, for a period of more are to be delete,” which means, that a creditor in than one month. The prohibition against enter- an aliment case no longer gets a decree under ing into an agreement for a longer lease, or rather which he can charge on pain of imprisonment, and the refusal to give legal recognition to such an consequently he is unable to take any action to have agreement, has certainly the merits of originality the debtor incarcerated if he refuse to implement and daring. These merits also characterise the the decree. Now, it has to be observed in regard proposal to fix the term of expiry of a lease as at to the last Act, that its object, as its preamble the twenty-eighth day of a month-we presume distinctly says, is not to alter the law, but to deal “any agreement to the contrary notwithstanding." with Acts or sections of Acts whose use is spent. The measure would, if passed, entail great incon- Here, however, it is perfectly clear that the Act yenience and hardship on the part of the tenants was dealing with what had not fallen into

desuetude, and it also seems perfectly clear that it Royal StatisTICAL SOCIETY. — The seventh has not in any way altered the law as specially ordinary meeting of the present session will be reserved by the Debtor Act and dealt with by the held on Tuesday, the 22nd May 1894, in the

Lecture Theatre of the Museum of Practical Civil Imprisonment Act : what it has done is to

Geology, 28 Jermyn Street, S.W., at 7.45 P.M., render this law, so far as regards actions in the when the following paper will be read :-"Statis. Small Debt Court, inoperative.

tics of Litigation in England and Wales since We can hardly imagine that such a change was 1859,” by John Macdonell, Esq., LL.D. contemplated by the Act. If so, a Revision Act was not the proper place to do it. What, we think, is more likely, is that those responsible for the Act had omitted to remember that when imprisonment for debt was abolished, there were certain

| A TIMELY reminder has been given by Mr cases specially reserved.

Justice Wills to all those whom it may concern,

that a prisoner who enters into recognisances to We had thought that this being, as we consider,

come up for sentence when called upon does not the true explanation of the change, it would have

explanation of the change, it would have commit a merely formal act. About a year ago a been remedied shortly thereafter; but though two man was convicted at the Liverpool Assizes of Revision Acts have since been passed, nothing receiving stolen property, but was discharged on has as yet been done. Clearly it is necessary to do entering into his recognisances. Since his lenient something: for if matters are allowed to remain as treatment he has twice been convicted of felony. at present, it must mean that the jurisdiction of the

in consideration of which Mr Justice Wills has

had him called up for his previous offence, and Small Debt Court will be so much diminished, as

bişned, as has added to his sentence an additional year, with litigants for aliment would, we submit, when the hard labour. It is gratifying to know that the claim was under £12, be perfectly justified in bulk of the persons who are thus released do not raising their action in the ordinary Court and abuse their liberty. Mr Justice Wills stated that getting ordinary Court expenses, on the ground during his ten years' experience as a judge he had

had occasion to call up but three men.Law

Journal. carried out otherwise.

“A LONDON SOLICITOR” writes to a contemporary, with regard to the new death duties :

5. Speaking from an experience of over fifty years, News,

I believe that the proposed increase of death

duties will lead to great cvasion, and consequently The subject of the portrait in next week's issue will be of doubtful advantage to the Revenue. I will be :

have found an increasing desire, especially on the C. B. Davidson, Esq., Advocate, Aberdeen. part of foreign merchants and others who have

made money in this country, to escape these duties, either by settlements, or by transfer of property to their children under arrangements of

various kinds. Further, people will be 'cute MESSRS Smith & Mason, S.S.C., Edinburgh, enough to discover that by investing their money will dissolve partnership on 26th May. Mr

in inscribed or other securities in America and Addison Smith will continue to carry on business elsewhere they will escape the probate duty, and on his own account at 19 Heriot Row. Mr Mason

if they reinvest the income without bringing it to will continue to carry on business on his own this country will also escape income-tay. I have account at 51 Hanover Street.

known securities to the amount of millions sent out of this country in anticipation of death, in order to save duty. The present state of the law operates very hardly, and causes much dis

content in the case of capitalists resident abroad, MR DONALD Davidson, Sheriff-Substitute of and not English subjects, who, as“is often the Ross and Cromarty and Sutherland, at Stornoway, case, have left large sums with leading mercantile has been appointed Sheriff-Substitute of Inverness, and other houses in London and elsewhere. Elgin, and Nairn, at Fort-William, in room of Mr When they die the probate duty now payable is Jaines Simpson, resigned. Mr George James very onerous. If it is increased the result may Campbell, solicitor, has been appointed Sheriff- probably be the withdrawal of considerable Substitute at Stornoway.

capital from this country."

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