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Sheriffs' Committee, Mr Cay had an opportunity of making many valuable suggestions in regard to current legislation, and he is understood to have done much useful work in that capacity. Previous to the Act of 1861 he was one of the Sheriffs Commissaries for taking proofs in consistorial causes. He was author of an Analysis of the Scottish Reform Act, with Decisions in the Courts of Appeal, of which the first part was published in 1837,-a work of great care and considerable authority. He also wrote two pamphlets; one entitled an Analysis of the Burgh Registration Act; and the other, published only last summer, Outlines of the Procedure at Elections for Members of Parliament. The death of Mr Cay will lead to no changes at the Bar, as, under the Act 16 and 17 Vict. c. 92, he is succeeded by Mr Tait, the Sheriff of Clackmannan and Kinross, these counties and Linlithgowshire being now united under the same Sheriff and Commissary.

Law of Agent and Client.—In the law of agent and client several points have been under discussion during the past year, which are of considerable interest, and some of them we should have hardly thought were now open.

(1.) For instance, it sounds a very elementary proposition, that an agent having, as such, got possession of his client's title-deeds, is not entitled to use them for other than his client's purposes. Yet twice has this point been sub judice during the judicial year just closed ;as might be expected, in both cases raised by country writers. The question first came to the Court of Session from Airdrie, that hotbed of petty litigation, in the case of Marshall v. Molison, Dec. 7, 1864, ante, vol. ix. p. 5 (3 Macph. p. 191), in which the principle was curiously mixed up with its equitable correction, that the agent has a right of hypothec over his client's titles, in security of his own business account.

In an action against Marshall, in which he was represented by an agent of the name of Morrison, a former agent named Molison was examined as a haver, and produced certain titles belonging to Marshall, over which he (Molison) claimed a right of hypothec. This was set forth in Marshall's own record, and so was known to Morrison, who, as Marshall's agent, borrowed the same, and, Marshall having died, was alleged to be proceeding to use them against his representatives, when they applied to the Court to have him ordained

VOL. X. NO. CIX.-JANUARY 1866.

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to deliver them up. It was clear that it was only as Marshall's agent that he had obtained possession of them; and as Molison no longer demanded them to enable him to make good his hypothec, the Court ordered them to be delivered up. That was a favourable case for modifying the rule, for there were distinct allegations that Marshall had no right to the document specially wanted, and that in fact it belonged to another party whose agent Morrison had by this time become; but the First Division held unanimously that such a question was beyond the scope of the inquiry, whether Morrison was entitled to retain the document against Marshall, and ordered it to be delivered up.

Notwithstanding that the point had thus been so recently ruled, it was again raised in Aberdeenshire, and was again determined in the Bill Chamber during the autumn vacation, and effect, as might have been expected, was given to the principle recognised in the case of Marshall v. Molison.

(2.) A somewhat kindred discussion, at least as involving the measure of the agent's right over his client's papers, arose in the case of Skinner v. Henderson, June 2, 1865 (3 Macph. 867), which may be noticed, not as having established any new doctrine, but as setting in a clear light what was already settled in the old cases of Johnstone v. Bell, 1821, 1 S. 90, and Paul v. Mathie, 4 S. 424. The trustee in a sequestration applied to the Sheriff for an order for delivery of a back letter or agreement, qualifying certain ex facie absolute dispositions of heritable subjects by the bankrupt. The disponees, who were in possession of this deed, were interpelled from giving it up by the agent who had prepared it, and who claimed a right to retain it on the ground that it was hypothecated to him for his account in connection with it, both as against the bankrupt and the other parties to the deed. The Court held the law-agent, who had lodged defences, bound to deliver up deeds in his possession affecting the bankrupt's estate, but only under reservation of his full right of lien, if such right exists.

(3.) In Scotland v. Henry, July 19, 1865, ante, vol. ix. p. 163 (3 Macph. p. 1125), another point was mooted, which we may presume to be now settled. In Knox v. M'Caul, Lord Rutherfurd's judgment in Taylor v. Forbes was not before the Court, but the argument in Scotland v. Henry turned in a great degree upon its soundness, and the Second Division have unanimously, while reserving it, practically overruled it. The kind of case before the Court was

this: An agent was employed by the trustee in a sequestration, on the condition, as the trustee said, that the estate alone, and not himself, the trustee, should be liable. The estate was insufficient to meet the account, whereupon the agent sued the trustee, who set up in defence his special bargain. This not being admitted, the question arose, whether the trustee was entitled to prove the alleged bargain prout de jure, or was limited to writ or oath of the agent, as the latter contended, founding upon Taylor's case, where the bargain alleged was that the solicitor undertook business gratuitously, except as regarded outlay, reserving his right to recover costs from the opposite party in the event of the business being conducted to a successful issue? The business having terminated unsuccessfully, an action was raised for the whole accounts; and the defender sought to prove the arrangement prout de jure.

(4.) The remaining point which formed the subject of decision was one raised by the Court, for no one appeared to resist the demand made in the case of Walls v. Speirs, Feb. 17, 1865, ante, vol. ix. (3 Macph. 536), namely, for interest on a business account from a year after the date of the last item. Decree was ultimately given for interest as craved.

Calls to the Bar.-Mr William Frederick Hunter and Mr William Macintosh were called to the Bar on the 5th of December.

Correspondence.

PROOFS BY COMMISSION.

(To the Editor of the Journal of Jurisprudence.)

SIR-It may by some be accounted treason in the camp to suggest the slightest doubt of the propriety of an institution which all who are engaged in the practice of the law cherish as the very apple of their eye. But I feel it a duty to direct attention, and with my best approval, to the frequency with which the Court, and particularly the Second Division, have recently called in question the expediency of the ascertainment of the facts of a case by commission. The Lord Justice-Clerk is known to be favourably inclined towards the promotion of jury trial, and some may be disposed to think that his views on this matter are tinged more or less with the bias resulting from a theory. But apart altogether from the

that

question of the extension of jury trial, and leaving out of view the fact that the discontinuance of one practice will lead of necessity to the institution of another, it is quite obvious to any unprejudiced observer that the greatest possible injury is being done to the profession by the present tendency to appeal to a commissioner rather than a jury. So long as jury trials are conducted with the expense that now attaches to them, and continue to be magnified into the same ludicrous proportions which the paltriest case may not despair of reaching, I fear that argument against proofs by commission, by reason of their costliness, will not be received with much favour, and can be directed but with little point. But there is abundance of other considerations to demonstrate the evil of the practice. There is, in the first place, no greater ally of the law's proverbial delay than a commissioner. Owing his appointment, for the most part, to the good wishes and the friendly feelings of the agents—and it is notorious that a nominee of the Court is in no better case-he is ready to lend himself to any arrangement that may suit the convenience of parties; and has no eye, and is not expected to have an eye for anything beyond it. The same objection, though not to the same extent, applies to jury trials, in regard to which it has always seemed to me that the practice of the Court has been too lax in admitting postponement and delay; but it seems to me quite obvious, that if this mode of determining facts is to preserve its popularity, it will become absolutely necessary the powers and duties of commissioners be more clearly defined, and more peremptorily enforced. I add no more to what is said every day-and said with justice too-of the cumbrousness of the machinery. The most glaring defect of the system is the obligation which it imposes on the judges of pronouncing on the facts of a case as jurymen. And this is not in any respect a light matter. In the first place, it is not justice to the Court. To listen to comments upon evidence day after day, with the attention that is necessary to be able to embody all the leading facts in an opinion, and to prepare findings, is an intolerable burden that should not be laid upon the supreme tribunal of the country, except when it cannot absolutely be avoided. It is not justice to the parties. The judges are called upon to act as jurymen, without the assistance which jurymen have—and no one who has had any experience in the weighing of evidence but knows what a valuable aid it is-of seeing the witnesses, and personally observing their manner and deportment. And everybody feels how much easier it is to arrive at a quick and satisfactory result upon facts heard than upon facts laboriously acquired by reading, and intermingled with argument. But I am fast drifting on to the vexed question of the efficacy of jury trial, upon which I have no intention and no desire now to enter. My object has simply been to point out some of the evils of a practice which are universally felt, and are, I regret to say, on the increase.-I am,

JURIDICUS.

THE

JOURNAL OF JURISPRUDENCE.

SHERIFF-COURT REFORM.

NUMBER AND EMOLUMENTS OF SHERIFF-SUBSTITUTES.

AMONG the Acts of Parliament which the last session produced was one which possessed considerable interest for the mercantile and legal community of England, but which, as was perhaps natural, has received little attention in Scotland. We allude to the Act by which a limited jurisdiction in equity was conferred upon the English county court judges, and, simultaneously, an addition of £300 per annum was made to their salaries. Our sheriff courts have, from time immemorial, exercised an equitable jurisdiction in certain classes of cases to an unlimited extent. This jurisdiction is one of which suitors very largely avail themselves, and we feel convinced that, in England, the recent act will be attended with the very best results, and that it will soon be found there, as elsewhere, that the administration of equity and law together will prove in the highest degree satisfactory to litigants. The other portion of the act, namely, that which authorises an increase of salary upon the increase of jurisdiction is one which recognises an important principle, viz., that the public in making any largely increased demands on the time and labour of its servants is bound to increase their emoluments. This principle has been too often lost sight of in Scotch legislation. Almost every year adds to the duties performed in our sheriff-courts. These new duties, practically speaking, in the great majority of cases, are laid upon the sheriff-substitutes.

If

The number of Acts throwing new duties on the Sheriff-Courts since the last increase of salaries in 1853, amounts to upwards of seventy. We may mention those for Registration of Births, Deaths, and Marriages, for the Valuation of Lands and Heritages, the Friendly Societies Act, the Burial Grounds Act, the Reformatory VOL. X. NO. CX.-FEBRUARY 1866.

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