or part of the defamation. The defence of privilege may be raised at the trial and need not be anticipated by the pursuer. The articles of condescendence are to be separately answered as the defences. The defender shall not, in his defences, answer in words any article of the condescendence, or any particular averment which he admits to be true in fact; but every article and averment not expressly denied in the defences shall be held as admitted to be true in fact, but always under reference to any contract or writing therein referred to. The counter case may be stated as a special defence to any article admitted to be true in fact, and to be called a "defence." The pursuer may lodge replication to special defence in which he may deny or aver specially, or may object to the relevancy of such defence; and the defender may lodge rejoinder to special averment in replication. The pleadings, if not lodged at the proper time, may be received afterwards by consent or order. When the defences contain no substantive averments in answer to the condescendence, the records shall be considered as completed. So soon as the defences are lodged, and when the replication contains no averments in answer to any substantive averments in the defences, the record shall be considered complete as soon as the replication is lodged, and, if not otherwise, as soon as the rejoinder is lodged. The Lord Ordinary may amend the pleadings, necessary, before the closing of the record, by the Interlocator of the Judge. The Lord Ordinary is to determine whether the trial is to precede the hearing on the law or otherwise. i Part II. is directed to Jury procedure, and provides for notices of motions to fix trials, postponement of trials, citation of witnesses, and summoning of Jurymen, reserving of law points, application for new trial, etc. After three hours' deliberation verdict may be returned if nine are agreed, and after six hours the Jury may be discharged if they cannot agree on a verdict. The expense of an abortive trial is to be borne by the party guing to trial upon an irrelevant pleading. In Part III. we have the procedure defined in actions to be instituted by bill. The Bill may contain conclusions od factum præstandum, or for interdict; and the condescendence annexed is to contain distinct and complete statements of each ground of action. Power to amend the record is vested in the Court. Actions in cessio berum shall in future be instituted in the Sheriff Court. In lieu of actions of cognition and sale, which are bereby abolished, an application to sell the estate of the ward may be made by way of summary petitions, to be presented in the first instance to the Junior Lord Ordinary, or to the Lord Ordinary officiating on the bills in vacation or recess. All actions of aliment, of division of commonty and run-rig lands, of ranking and le, and every other Inner House action, except such nary petitions as are still appropriated to the Inner House, shall proceed in the first instance before the Land Ordinary, who is hereby empowered to hear and determine all such actions without reporting to the Inner House. The form of procedure in teind cases shall remain as at present constituted. Part IV. deals with Proof, Diligence, and Incidental Procedure, and Part V. as to the Appearance of New Parties. In the latter section, actions of wakening and transference are abolished. Where, according to the existing practice, a cause would require to be wakened in order to its being proceeded with, it shall be competent for any of the parties to enrol such a cause before the Lord Ordinary, and to lodge a minute craving a wakening of the cause; and the Lord Ordinary may thereupon direct eight days' intimation of such minute to be made to the agents of the other parties in the cause, or to such parties themselves, and also in the minute-book of the Court of Session; and on the expiration of eight days from the date of such intimation, or from the latest date thereof, and on a certificate being lodged in process, under the hand of the agent of the party applying for the wakening, certifying he has duly intimated the minute in terms of the Lord Ordinary's Interlocutor to such other parties or their agents, either by delivery or transmission by post, the Lord Ordinary may pronounce an Interlocutor holding the cause as wakened, and the same may be thereafter proceeded with or wakened accordingly. In lieu of action of transference, it shall be competent for the party to enrol the cause before the Lord Ordinary, and to lodge a minute craving a transference of the cause, and the Lord Ordinary may thereupon grant warrant for serving the summons, bill of complaint, or other initial writ, upon the party against whom the cause is sought to be transferred, and at the same time shall allow such party to give in objections within a time to be specified, and such Interlocutor shall be intimated in common form to the agents of the other parties, and such and like procedure may be had in virtue of the service of such summons on the Lord Ordinary's warrant as might have been had in virtue of the execution of a summons of transference; and if the Lord Ordinary shall think fit to transfer the cause in terms of such minute (which he can amend), he shall pronounce an Interlocutor holding the cause as transferred against the party named in such minute, and the cause shall be taken as transferred accordingly. Wakening and transference in combination may also be effected by application to the Lord Ordinary. Application may further be made for transference where the process is in the Inner House, and parties may appear voluntarily and be sisted. Part VI. relates to procedure in absence and reponing. In Part VII. as to Appeals from Inferior Courts, advocations are to be abolished, and in lieu thereof it shall be lawful to the persons desiring to remove an action from an Inferior Court to the Court of Session, where a contingent process is going on, the transmissions of the Inferior Court process to the Court of Session process may be effected by application to the Lord Ordinary of the division of the Court of Session in which the process in question may be. Part VIII. refers to Suspensions and Bill Chamber Procedure; Part IX. to Summary Petitions, and Part X. to Inner House Procedure. In the latter section it is declared to be not lawful any longer for the Lord Ordinary or for the Court to order argument in writing in any action or proceeding whatever. Part XI. provides for Judicial Arrangements, and Part XII. for Appeals in the House of Lords. SHERIFF SMALL DEBT COURTS. MR Caird, Mr Dalglish, and Mr Mackie, have introduced a Bill to enlarge the Sheriffs' Small Debt Jurisdiction. The small debt jurisdiction is extended to £25. Where the sum claimed or value in dispute exceeds £8 68 8d, it shall be competent for parties to plead by agents or procurators duly admitted to plead in the ordinary Court of the Sheriff, and costs shall be allowed according to the table of fees existing at the time for the ordinary Court, so far as applicable to such summary forms of procedure. In addition to the appeal now allowed, it shall be competent to either party, if dissatisfied with the judgment of the Sheriff in point of law in any case exceeding in value the sum of £12, and in other cases by special leave of the Sheriff, to appeal from such judgment to either of the divisions of the Court of Session: provided that such party shall, within ten days after such judgment, give notice of such appeal to the other party or his agent, and also find security to the satisfaction of the clerk of Court for the costs of the appeal, and for payment of any sum or sums which may be found due by such appellant. The appeal shall be in the form of a case agreed on by both parties or their agents, and if they cannot agree the Sheriff shall settle the case and sign it; and the judgment of the Judges of such division as it may be sent to shall be final and conclusive. Regulations are to be made for facilitating disposal of appeals. A Sheriff-Substitute, in regard to eligibility for promotion, shall be held to be practising in the profession of the law during the entire period of his holding the office of Sheriff-Substitute. in force until the same shall have been recalled by the Court of Appeal; and the ordinances of religion in the said parish, so long as such deliverance is unrecalled, be administered in the same way as if the parish were vacant by the decease of the minister thereof: provided always, that nothing herein contained shall affect the right of such minister to his stipend. 2. When, in the course of any judicial process affecting the status of a minister, or on the representation of any party having interest, it has been established to the satisfaction of a Presbytery, or other superior Court of the Church, that the minister of any parish is insane, and thereby disabled from discharging the duties of his office, it is hereby further declared and enacted, that it is, and shall be the right of the Presbytery, unless an arrangement for the purposes after mentioned shall have been made on behalf of the said minister to the satisfaction of the Presbytery, to appoint a qualified assistant to perform the duties of the charge until the said minister shall be enabled to resume the same, or until the parish shall be declared vacant, and, at the same time, to apportion and fix, by their deliverance appointing such assistant, an allowance out of the stipend not exceeding one-half of the whole proceeds of the benefice, and which shall be payable so long as such assistant shall hold and continue to act on his appointment by the Presbytery; and such deliverance, when duly intimated to the heritors or others liable in payment of the stipend, shall be equivalent to a legal and completed assignation by the minister to such assistant of the portion of the stipend specified in the deliverance. 3. When, by their final sentence upon a libel, a Presbytery, or other Church Court, shall suspend a minister from the discharge of the duties of his office for a term specified in the said sentence, it is hereby further declared and enacted, that it is and shall be held assistant to discharge the said duties, and to apportion to be the right of the Presbytery to appoint a qualified and fix an allowance to such assistant out of the stipend not exceeding one-half of the whole proceeds of the benefice, and which shall be payable so long as such assistant shall hold and continue to act on his appointment by the Presbytery; and such sentence, when duly intimated to the heritors, or others liable in payment of the stipend, shall be equivalent to a legal and completed assignation by the minister to such assistant of the proportion of the stipend specified in the sentence. Whereas it would much conduce to the interests of religion were ministers of parishes, against whom a libel has been found relevant for alleged immoral conduct, or for alleged error of doctrine, to abstain from exercising ministerial functions until the said libel has been disposed of by final sentence; but doubts exist whether the right 4. Where, in any cause depending before a Presbytery of the Courts of the Church of Scotland to require and or other superior Court of the Church, a proof shall have enjoin ministers of parishes so to abstain from ministerial been allowed, it shall be lawful and competent for such functions in such circumstances may not be liable to legal Court to appoint a qualified person, being an advocate, impediment, and it is desirable to remove such doubts: writer to the signet, solicitor before the Supreme Courts, and whereas it is expedient to declare the said right, and or a procurator duly entered as a practitioner in any farther to declare the right of the Presbyteries of the said Sheriff Court in Scotland, of not less than three years Church to make provision for supplying the ordinances standing, to sit with them for the purpose of dictating to of religion in any parish where the said ordinances have the clerk of Court the evidence given by the witnesses ceased to be performed by the Minister thereof: Be it examined in the course of the proof, and the oath de therefore declared and enacted by the Queen's Most fideli administratione officii shall be administered by the Excellent Majesty, by and with the advice and consent moderator to any person so appointed; and it shall be of the Lords Spiritual and Temporal, and Commons, in lawful and competent for such Court, if it see fit, to this present Parliament assembled, and by the authority appoint the evidence of the witnesses examined in the of the same, as follows:course of such proof to be taken down by a writer skilled in shorthand writing, to whom the oath de fuleli administratione officii shall be administered; and the said shorthand writer shall afterwards, and within such time as may be fixed by the Court, write out in full the evidence so taken down by him in shorthand: and the extended notes, so written out, certified by the moderator and clerk of Court to be correct, shall be the record of the oral evidence in the cause: provided always, that nothing herein contained shall prevent any Church Court, if it see fit, from taking down and recording the evidence adduced in any cause, according to the form hitherto in use. 1. Whenever any Presbytery or other Court of the Church of Scotland shall have found a libel relevant, charging the minister of any parish with immoral conduct or with error in doctrine, and shall have resolved to proceed to a proof of the said libel, it is hereby declared and enacted that it is and shall be held to be the right of the said Presbytery to pronounce a deliverance requiring and enjoining such minister to abstain from the exercise and discharge of all ministerial functions of his office as minister of the parish until the libel shall have been fully investigated and finally disposed of; and in the event of an appeal against such deliverance the same shall continue THE SCOTTISH LAW MAGAZINE AND SHERIFF COURT REPORTER. THE ATTORNEY TAX. Is a recent number we drew the attention of that | further proved by the circumstance that an attorney part of the legal profession subject to this exceptional and obnoxious tax to an effort then being made in England and Ireland to obtain its repeal, if not in the present session of Parliament, at least in the Dext session. While it is gratifying to find that petitions have been prepared and numerously signed 5th in England and Ireland, and presented to Farliament, we regret that 80 little attention has been given to the subject by the Solicitors of Sortland. Only one petition has as yet been presented, and that is from procurators of Perth. That petition so ably presents the case of the Solicitors, that we print it in full, as it may form a model on ich other petitions may be drawn, and we commend it and its arguments to the attentive consideraLoL of the profession. whose professional emoluments amount only to £100 per annum is charged the same tax as one whose emoluments amount to £1000 a year. "Such duties, besides, are not founded on any just principle of taxation. We would again urge the subject upon the attention of every Bar in Scotland, but more especially on the Faculties and Legal Societies of the large ats and towns. "That the Certificate Duty on Attorneys, and a tax Warrants to Prosecute, were first imposed in the year 75, to make up an unexpected deficiency. The Warat Stamp, and all other stamps on law proceedings, re afterwards abolished, as taxes on the administration fastice, but the Certificate Duty remains, and has en largely increased. At first, if a practitioner resided London he paid £5, and if any other part of Great Lain £3; but it is now £9 for those resident in London, bargh, or Dublin, and £6 for those resident else "The members of the legal profession also pay large "If a tax on the talent and industry of individuals engaged in a lawful calling be at all expedient, it ought to be levied, not only on the three learned professions, but on all merchants, bankers, manufacturers, traders, and others. A small tax on each would remove the grievances complained of, and, at the same time, produce far more than the amount now levied unjustly on attorneys and solicitors. "It is now an established principle that there should be no class legislation—that taxes should be general, and not be imposed for the protection of manufacturing, agricultural, or any other class. If, therefore, it be wrong to levy imposts on the community for the benefit of a class, it must be equally wrong to impose burdens on one class in exoneration of the rest. fellow-subjects, pay at least their equal share of all the "The attorneys and solicitors, in common with their taxes imposed on the community at large. The Certificate Duty, which falls exclusively on their branch of the profession, is, in fact, an additional income-tax; and as they are required to pay income-tax on their professional earnings, they ought, in fairness and justice, to be relieved from the Certificate Duty; otherwise they are subjected to a burden double the amount borne by the other classes of the public. "By the operation of many recent changes in the law and practice of the Courts, and by enactments relating to deeds and other documents, the emoluments of the profession have been much diminished, although the disbursements continue very nearly the same. This is submitted to the consideration of the Legislature as another reason, if another were required, why this tax should be repealed. "The petitioners do, therefore, humbly pray that it may please your Honourable House to pass an Act repealing the annual Certificate Duty payable by attorneys, solicitors, procurators, notaries public, and other members of the legal profession." G TOWN CLERKS' FEES. THE following Memorial of the Society of Advocates in Aberdeen and the Society of Solicitors of Perthshire, was some time since laid before the LordAdvocate (Moncrieff), and his opinion, which we append, will be found of considerable importance to the profession and a large part of the public:— The Town Clerks of Glasgow, Aberdeen, and Perth, and probably those of other Royal burghs who have held their offices prior to 1860, maintain that, according to the correct construction of "The Titles to Land (Scotland) Act, 1860," it is no part of their duty to prepare and expede the Notarial Instruments referred to in the Act; but that it is their privilege, when such instruments, expede by other notaries (even although done in consequence of the refusal of the Town Clerks to do so), are presented to them for registration in their registers, to exact the fees for recording them, and also the fees which they would have had right to draw prior to the passing of the Act, in respect of the preparation of Instruments of Sasine of equal length, and in subjects of similar value. By the 21st section of the Act, it is declared that no Town Clerk appointed subsequent to 8th March, 1860, "shall have any exclusive right or privilege of preparing or expeding any conveyance, instrument, or other writ applicable to land," etc., "provided always that existing Town Clerks, whether sole or joint, who, according to the present law and practice, are exclusively entitled to prepare Instruments of Sasine or of Resignation and Sasine in Burgage subjects, shall each, during the period to which his right shall extend under any legal appointment or agreement existing at the foresaid date, but no longer, be entitled to claim and receive from the person presenting for registration, in the Burgh Register of Sasines kept by such Town Clerk, any conveyance which, when recorded, will operate the effect of a recorded Instrument of Sasine or of Resignation and Sasine, such, but no other fees, as he would have had right to draw and to appropriate to his own use and benefit, in respect of the preparation and recording of the Instrument of Sasine, which, if this Act had not been passed, must have been recorded in the Burgh Register of Sasines in order to operate the like effect, as the recording therein of such conveyance; and the person recording such conveyance in the said Register of Sasines, shall be bound to pay such, but no other fees, to such Town Clerk in respect thereof. Provided always, that, in estimating the said fees, such Instruments of Sasine or of Resignation and Sasine, shall not be computed as of greater length than the writings actually recorded, whereby such Instruments of Sasine or of Resignation and Sasine have been rendered unnecessary." The interpretation clause of the Act declares that the "word deed and the word conveyance shall extend to and include original charters; charters, and writs, and procuratories of resignation; charters of adjudication and sale; | dispositions; bonds and dispositions in security; bonds of annuity and of annual rent, and other heritable bonds; feu contracts; contracts of ground annual; decreets of adjudication, of sale (whether such decrees of adjudication or decrees of sale contain warrants of infeftment or not); decrees of special service; precepts from Chancery; precepts and writs of clare constat; writs of acknowledgment; contracts of excambion, and other deeds and decrees by which lands are conveyed, or rights in lands— either absolute, or redeemable, or in security-are constituted or conveyed," etc. It thus appears that Notarial Instruments, unless they are to be held as included in the general description in the concluding part of the clause, are not comprehended in these writings which, in the Act, are classed under conveyances. When a title is completed by recording a conveyance, the Town Clerk is entitled to a fee equal to his former fee for preparing and recording an Instru ment of Sasine. When the form of a Notarial Instrument is adopted, the party has to pay his agent, for its preparation, a fee for the duty corresponding to that which the Town Clerks formerly discharged and from which they now plead exemption; the Town Clerks of Perth maintaining that if they are asked to prepare Notarial Instruments, they do so as private agents for such a party, and will make a separate charge for the preparation of the Instruments. But the Town Clerks claim in addition, not only the fee for recording the Instrument, to which no objection can be made, but also a fee equal in amount to the former Sasine Fee. One purpose of the Act was "to diminish the expense of completing titles," but by the interpretation contended for by the Town Clerks, that expense would be nearly doubled. The Town Clerks, while they refuse to prepare Notarial Instruments, according to the new forms, being a privilege or a duty not committed to them by the statute, are ready to expede instruments of sasine in the old form (which are still competent), and for the former fees; but there are cases—such as those specified in the fifteenth section-in which instruments of sasine will not supply the place of the statutory Notarial Instruments. The Society of Solicitors of Perthshire also wish to bring under the notice of the Lord Advocate the question of the fees exigible by the Conjunct Town Clerks of Perth under the Heritable Securities Acts of 1845 and 1847. There are two conjunct clerks of Perth-the one, Mr Archibald Reid, appointed previous to 1845, and the other, Mr William Greig, appointed in July, 1848—who, in recording bonds and transfers thereof, under the Heritable Securities Acts, charge not only for recording the deed, but also an infeftment fee, and fee for preparing sasine. The Society of Solicitors object to this. They maintain that, in terms of the Act 8th and 9th Vict., c. 31. they are bound to pay the half of the infeftment and sasine fee to Mr Reid, the first appointed town clerk, and that Mr Greig, the last appointed clerk, is entitled only to the one-half of the fees of recording the deed They do so, upon the ground that the Act 8th and 9th Vict. abolishes the infeftment fee upon the death of the then existing Town Clerks. These were, at the date of the Act (20th June, 1845), Mr Mackenzie and Mr Reid, and betwixt them the previous sasine fee was divisible. I the year 1847, Mr Mackenzie died-his half of the sasin fee died with him-so that his successor, Mr Greig, ha no right to any share of it. Mr Greig maintains he has a right to half of these infeft ment fees; and his views respecting them are expressed vate notary to complete the other half. This result is in a letter written by him to the Secretary of the Society an absurdity-will never do. of Solicitors of Perthshire, dated 31st March, 1862, of the following terms: "With reference to the meeting on the 28th instant of the Society of Procurators, you are aware I declined being bound by anything done by the society with reference to the Town Clerks' fees. "You asked me for certain information, which I now proceed to give you, all referring to the question now raised under the Heritable Securities Acts of 1815 and 1847. “There are now only three burghs interested in this question-namely, Glasgow, Perth, and Dundee. At the time the Act of 1845 was passed, the Joint Town Clerks of Perth were Messrs Mackenzie and Reid. Mr Mackenzie died in 1847, and Mr Macfarlane was appointed. Mr Macfarlane died in 1848, and I was then Appointed. Mr Reid and myself have thus been Joint Town Clerks of Perth since July, 1848. "I know that during Mr Macfarlane's lifetime, the old sasine fees were invariably drawn for heritable bonds and assignations thereof. When I entered on office in 184, I was informed that this course was adopted advisedly, and that there were decisions (in the English Courts at least) sanctioning the principle; and further, that in Glasgow, the same view was taken and acted on. In these circumstances, no change was made the old asite fees continued to be charged. “When Mr Gray raised the present question (caused, I believe, by the appointment of Mr Anderson, as Joint Town Clerk of Dundee, and his adopting a different rule), I wrote to the Town Clerks of Glasgow on the bject, and had the answer from Mr Turner, which I cwed you, and of which I annex a copy. In Glasgow, they made no modification after the appointment of a Tanior Town Clerk, and they have thus acted, on the ground that the office of Town Clerk is one and indivisible, and that though the emoluments may be divisible inter se, so ng as any of the incumbents continue in office, apted prior to the passing of the Acts, the full fees are ble. I also observe, on referring to the Scottish La Journal, published in Glasgow, in 1860, Vol. II., 72, that the practice in Glasgow, in 1860, was in rdance with the views entertained by the Town erks there. The opinion read by you of the Presiof the Solicitors of Edinburgh was to the same "To hold the office of Town Clerk other than inrable, would lead to inextricable confusion. Take, £r instance, a case very nearly at hand. Some persons are broached the doctrine that, under the recent Act 1860, Town Clerks appointed before the Act are taled and bound to prepare the new Notarial Instruprovided by the Act, whilst Town Clerks apted afterwards are not entitled or bound to prepare instruments. I suppose, then, that, in such a case, there are Joint Town Clerks-one appointed bere, and the other after 1860-the holders of the doce just noticed will, and indeed must further hold, at the old Joint Town Clerk must prepare one-half of Je Notarial Instrument, and then hand it to the pri "(Signed) WILLIAM GREIG." Copy of letter above referred to: GLASGOW, 19th June, 1861. "I have just received your letter of the 17th instant. I handed your former letter to Mr Munro (who has charge of the department) to answer, and as he is now absent in Edinburgh, I regret I cannot have an opportunity of referring to it, or ascertain why he did not answer it at the time. If I understand the query put in your letter, it is—Whether we continued to exact the full fees, without modification, after the appointment of a Junior Town Clerk subsequent to the passing of the Heritable Securities Acts of 1845? I have to state that we did so, on the ground that the office of Town Clerk is one and indivisible, and that although the emoluments may be divisible inter se, so long as any of the incumbents in office prior to the passing of the Act continue in office, the full fees are exigible. A. TURNER." “(Signed) QUERIES. 1. Are Notarial Instruments, "Conveyances," in terms of the Act, so as to entitle Town-Clerks, appointed prior to 8th March, 1860, to charge, for recording them, such tion and recording of Instruments of Sasine, etc., prior fees as they would have been entitled to for the prepara to the statute? 2. If they are entitled so to charge for Notarial Instruments presented to them for Registration, are they bound, if called on, to prepare and expede the Instruments, .in respect of which their charges are made, so as to relieve the parties of double Fees? June, 1845, entitled to any portion of Infeftment Fee, 3. Is a Conjunct Town Clerk, appointed since 20th Acts of 1845 and 1847; or is the previously appointed and preparation of Sasine, under the Heritable Securities Clerk only entitled to the one-half of such Fees, leaving to the Junior Town Clerk only the half Fees of recording the Deed? 4. If the Town Clerks of Aberdeen and Perth should insist on drawing the full Fees presently claimed by them, in what manner should the Memoralists bring the matter in dispute to an issue? OPINION. 1. I am of opinion that Notarial Instruments are Conveyances" in the sense of the Act; and that Town Clerks, appointed prior to 1860, are within the provisions of the Statute, which regulate the preparation and recording of Conveyances in the preparation and recording of Notarial Instruments. 2. I am of opinion, that if the party presenting the Deed or Instrument for registration does not employ the Town Clerk to prepare it, he must, in terms of the provisions of the Statute, pay to the Town Clerk the fees of preparation, as specified in the Statute; but if the Town Clerk is required to prepare it, and refuses, he will not |