wife than the case cited. There are no trustees perty who is not the owner of it, and who possesses it under what is called a subordinate title. Thus, for example, a man may be in possession of movable plant which he has sold to the owner, and then hired it from the owner under a contract of lease. The contract of hiring is given effect to, to the extent of preventing the creditors of the hirer from seizing the plant as his property. This proceeds on the principle that there must be delivery to pass the property, but it is good constructive delivery when a new contract is made between the seller and the purchaser, under which the seller possesses on a new contract. These principles were laid down in the cases of Orr's Trustee v. Tullis (8 M. 936); Robertson v. M'Intyre (9 R. 772); and Darling v. Wilson's Trustee (15 R. 180). The principle of reputed ownership is now restricted to cases of simulate or collusive possession, where the appearance of ownership is carried beyond the purpose or occasion of a legitimate contract. But where the possession of the goods can establish a bona fide arrangement with the owner, whereby he is in possession under a contract of hire or lease, or such-like, this does not raise the presumption of ownership on which creditors are entitled to rely. The question, however, arises in the present case, whether the new law applies to husband and wife, to the effect of giving the wife a valid right to furniture situated in the house occupied by the spouse? The question was raised and decided in the recent case of Mitchell's Trs. v. Gladstone (ante, Vol. I., No. 546; 21 R. 586). In that case the husband entered into a deed of arrangement with his creditors whereby he assigned his furniture to a trustee for their behoof. The trustee assigned the furniture to the husband's marriage contract trustees for behoof of the wife in liferent and the children in fee. The furniture remained in the house occupied by the husband and wife; the husband afterwards sold the furniture to a third party, and the marriage contract trustees interdicted the third party from removing the furniture, and it was held by the First Division that since the date of the assignation" in their favour the marriage contract trustees had been in civil possession of the furniture through the wife, that the assignation in their favour was therefore effectual, and interdict was granted. Lord Adam, who delivered the leading judgment, stated that the case was ruled by the principle laid down in Orr's Trustees v. Tullis, and the other two cases already mentioned. Lord Adam said that the wife had been in actual possession of the furniture throughout, that she had that possession not as owner but from the marriage contract trustees under the subsidiary title of liferenter of the furniture, that the marriage contract trustees had been all along in the civil possession of the furniture through the wife, and that was sufficient to give them the plenum dominium of it. It appears to me that the present case is a stronger case for the preservation of the furniture for behoof of the Agents for the Trustee, Mackay & Boyd, Writers, Glasgow.-Agents for Mr A. Kennedy, J. & J. H. Jubb, Writers, Glasgow. 356. CRIME SENTENCE-PROBATION OF FIRST OFFENDERS' ACT, 1887-THEFT OF £30.-Margaret Hamilton (21) pleaded guilty to the charge that between 1st and 21st September 1894, in Craigleith Hill House, in the parish of St Cuthberts and county of Edinburgh, occupied by Thomas Watson, dairyman, you did steal £30 of money." In consideration of the youth, the previous good character, and the respectable antecedents of the prisoner-certificates as to which were produced-and in view of the fact that the entire amount of money abstracted had either been already refunded, or was arranged to be repaid, the Sheriff (Blair), while expressing some difficulty as to extending the above Act to cover the case, gave the prisoner the benefit of its provisions, and ordained her to lodge a bond of caution for £10, to continue in force for twelve months.-MARGARET HAMILTON; 6th December 1894. Counsel for Prisoner, Munro; Agents, Messrs Sibbald & Mackenzie, W.S, SIR R. T. REID, Q.C., M.P., THE English Attorney-General is a Scotsman, and in the House of Commons he represents a Scottish constituency. Scotsmen are naturally gratified to count as their countryman so eminent a lawyer, and a member of Parliament so justly popular with both sides of the House. THE MARRIAGE LAWS OF SCOTLAND. (Continued from page 287.) On 27th June 1565 the Ninth General Assembly discussed the following question:"Whither if a man abuseing his cousigne, his father's brother's daughter, sevin yeirs, and begottin children, and presentile wald marie her and underly correction, may marie or not? The Sir Robert Threshie Reid was born in 1846, degries are second of consanguinitie." And the and is the second son of the late Sir James John Reid of Mouswald Place, Dumfriesshire; his mother being a daughter of the late Mr R. Threshie of Barnbarroch, in the same county. He was educated at Cheltenham College, and at Balliol College, Oxford, where he took the degree of B.A. He was called to the English Bar by the Inner Temple in 1871, and joined the Oxford Circuit. He became a Queen's Counsel in 1882, and was made a Bencher of his Inn in 1890. If the first step of preferment came later to Sir Robert than either his great ability or his position at the Bar demanded, it cannot be complained that the subsequent steps of promotion have not followed each other with sufficient rapidity. In the present year he succeeded Sir John Rigby as Solicitor-General when Sir Charles Russell was promoted. A few months later, when Sir John Rigby was created a Lord Justice of Appeal, Sir Robert Reid was appointed Attorney-General. Sir Robert Reid represented Hereford in the House of Commons from 1880 until 1885. Since 1886 he has represented his native county. He is a conspicuously fair and honourable opponent both in the Courts and in politics. VOL. II.-PART 23. answer given was to the following effect: "Thogh this be not found contrair to the word of God, yet because it hes bein publicklie reveilit in this realme, and that diverse inconvenients are perceivit to enseu of this liberty, thinks it good that it be offered to the Civill Magistrate, or els to ane Parliament for ordour to be taken therein in the meantime that men take not libertie to themselves according to their fleschly filthy affectiouns, not the less that the persones in whose name this question was proponit be joynit in marriage after their public repentance for the offences bygane, without any hope that uthers have the like license, whill farther ordour be tane be the Civil Magistrat, as said is." Here there is distinct trace of a tendency to forbid a marriage which is admittedly not prohibited by the law of God. Following on this the Thirteenth General Assembly on 27th June 1567 came to the following decision:-" Ane man being divorceit for adulterie. Queritur Quhether he may marie again lawfullie or not? The Kirk will not resolve heirein schortlie, but presentlie inhibits all ministers to meddle with any sic marriages quhill full decision of the question." Here also is a view suggested which the State has refused to adopt, to the effect of forbidding a divorced man or woman from again entering into the bonds of matrimony. One more instance of the increasing divergence between the views of the Church and the position which Parliament had taken up is to be found in the Acts of Assembly of 1570. "Quhat ordour sall be takin with her quho committing fornication with a man, does suffer the same man heireafter to marrie her awin sister, and heiring the bands proclamit wald not reveile the impediment, but be. conceilling of the cryme was guiltie of the incest following. Both he and she to be punishit according to the discipline of the Kirk. Bot chieflie the man, and the second cannot be his wyfe." In 1570 the General Assembly claimed that, "Because the conjunction of marriages pertaines to the ministrie, the causes of adherents and divorcements aught also to pertaine to them as naturallie annexit thereto." And in 1595 the Assembly goes further still, abandoning entirely the old doctrine as to the constitution of marriage by consent, which is the only one that the law of Scotland has ever recognised, and which was the doctrine of the Church of Rome up to the Council of Trent. The resolution is in these terms:-" As concerning mariages made be excommunicate priests or uthers that has served in the Kirk and [are] deposit from their office or be privat persons: the Assemblie declares such mariages to be null, ordaining the brethren of Edinburgh to travell with the Commissars of Edinburgh that they decyd according to the saids conclusions." Further illustrations of the action of the Church Courts are given by Lord Fraser, Husband and Wife, pp. 13 and 14. had exhibite to the Justice-Clerk the names of haynous offenders, but could find no executioun." The latter part of his statement seems to have been accepted by the Assembly. For on 5th March a petition was drawn up to the Regent and Secret Council praying, inter alia, "That ordour may be takin that sic odious crymes as this day provoks God's displeasure against the haill land may be punished as God hes commanded. If his Grace send us to the Justice-Clerk, experience has teached us sufficientlie what he has done in any sic matters." The Justice-Clerk at this time, it may be mentioned, was Sir John Bellenden of Auchinoul, who filled that high office from 1547 to 1577. It is proper at this point to look somewhat in detail at the answer which the Reforming ecclesiastics gave by the two Acts 1567, caps. 14 and 15. It is to be observed that the Church does not meddle with the law of marriage in the Confession ratified by 1567, cap. 3. The Act 1567, cap. 14-Anent thame that committis incest-imposes the penalty of death upon them "that abusis their body with sic personis in degree as Goddis Word has expresslie forbidden, in ony time coming, as is contentit in the 18th chapter of Leviticus." This, as has already been pointed out, is entirely consonant with the deliverance of the first General Assembly. No room is here left for the ingenuities of inference or the discovery of principles alleged to underly the Levitical prohibitions. A connection which is expressly forbidden by the 18th chapter of Leviticus is incestuous and punishable. No other is either punishable or incestuous, for to no other does the Act apply. This, as has already been indicated, was not the later view of the General Assembly and other Church Courts. It was the habit of these Penal consequences ought in strictness to have tribunals to impose ecclesiastical censures and such followed upon the contracting of such unions as more substantial penalties as they found that the Church had now begun to denounce. Ap- they could safely inflict on many acts of which parently, however, the divergence of view between they happened to disapprove, although these were the Church and the State had now become some- in no way forbidden by the statute law of the what more acute. The two Acts of 1567, cap. country. And many instances could be given 14 and cap. 15, had been passed, and by these of their proceeding against persons for incest the civil power was for the time determined to who had most certainly not contravened any stand. The State had given its answer to the of the express prohibitions of Leviticus above demands of the Church-an answer in accordance incorporated in the Act. The very case under with the position of the first General Assembly, discussion was one of these. The records of the and for a time it refused either to alter the law Presbytery of Lanark show that on 17th October or to deal with offenders who merely transgressed 1633 "James Young and Kathareen Jacksone, the ecclesiastical view of what was right and in the parish of Lanarke, confesses carnell dealing, proper. Before the Thirteenth General Assembly being incest, she being his wyff's sister daughter, Mr John Spotswood, superintendent of Lothiane, and are ordeened to find caution to satisfie the was, on 26th February 1568 "delated for Kirke and abstain in time to come." This could slackness in visitation of the Kirks, &c. He not have been all, if the case had been one of alleged non-payment of his stipend for the statutory incest. The penalty imposed could three years bypast, and that diverse times he hardly have been more moderate, and contrasts strangely with the fanatical severity exposed by Baron Hume, in strained interpretations and applications of the Act as to incest, and surely his observation is just, "With respect to carnal intercourse between the husband and the bloodrelations of the wife, such as her niece or aunt, our text almost entirely fails us, having neither expressly ordered anything as to any one of these cases nor even furnished any clear indication of purpose" (Hume, i. 450). The Reformed Churchmen even harked back to the old pre-Reformation idea that relationship might be constituted by mere carnal connection, apart altogether from marriage. In 1649, when their power was at its height, Parliament was induced to pass an Act, 1649, cap. 16, by which the forbidden degrees were very widely extended, in accordance with the views of the party in power, making crime what had not been crime before, and also rendering illegal unions which had previously been valid. To this Act an elaborate table of these degrees is appended, with a note declaring, inter alia, that "consanguinity and affinity impeding matrimony is contracted. . . by unlawful company of man and woman as well as by marriage." Amongst the unions which by this Act are expressly declared unlawful is that of a man with the niece of his deceased wife, and it, along with the others, is declared to be punishable as incest, with death. But this statute was in force only for a short time, and was repealed immediately after the Restoration by the Act Recissory of COURT OF SESSION-APPOINTMENT OF NAUTICAL ASSESSORS.-The Lord Justice-General has appointed for the Court of Session the following gentlemen assessors for the purposes of the Nautical Assessors (Scotland) Act, 1894, namely: William Ladds; Captain George Charles Burn; Captain James Bucknell Atkins; Captain Captain George Rawlinson Vyvyan; Admiral Sir F. Leopold M'Clintock, K.C.B., F.R.S.; Captain Henry Yorke Slader; Captain Arthur Edward Barlow; Captain Hector Brabazon Stewart-Elder Brethren, Trinity House, London. Captain Ernest Neville Rolfe, C.B.; Commander Henry Pearson; Commander Henry J. Keane, all of H.M.S. Galatea; Commander Robert S. D. Cumming, H.M.S. Caledonia; Commander Guy Mainwaring, H.M. Coast Guard, AberdeenRoyal Navy. Captain John Bain, 4 Edelweiss Terrace, Partick, Glasgow; Captain Abraham Howling, 40 Albany Street, Leith; Captain James Riddell, Master of Trinity House, Leith; Captain A. Wood, Navigation School, 33 Dock Street, Dundee-Mercantile Marine Masters. RETIREMENT OF MR DUNCAN, CROWN OFFICE, EDINBURGH.-Mr David Duncan, late chief clerk in the Crown Office, was on 7th inst. entertained to dinner in the Waterloo Hotel by a number of gentlemen who have been officially connected with him in different capacities in the service of the Crown during his forty-seven years' tenure of office. The company included the Right Hon. the Lord Justice-General, who presided; the Right Hon. the Lord Justice-Clerk; the Right Hon. the Lord Advocate; the Right Hon. the Dean of Faculty; the Hon. Lords Adam, M'Laren, Kyllachy, Kincairney, and Stormonth Darling; the Solicitor-General; the Depute Clerk Register; the Crown Agent; the Deputy Keeper of the Signet; the Queen's and Lord Treasurer's Remembrancer, Mr Graham Murray, Q.C., M.P.; Mr D. Crawford, M.P.; Mr Radenach Nicolson; Mr THE subject of the portrait in next week's issue James Auldjo Jamieson; the legal members of 1661. will be: (To be continued.) News. the Scottish Local Government Board:-Mr Patten M'Dougall; Mr W. J. Mure; Sir Douglas MacDONALD DAVIDSON, Esq., Sheriff-Substitute at lagan; Dr Littlejohn; the Sheriffs of Inverness, Fort-William. COURT OF SESSION.-The Lords of Council and Session have passed an Act of Sederunt for carry: ing into effect the purposes of the Nautical Assessors (Scotland) Act, 1894. FORT-WILLIAM.-Mr Thomas Allison, writer, with Mr H. Y. L. Smith, solicitor, has been enrolled in the register of law agents for Scotland. He had also been enrolled as a Procurator in the sheriffdoms of Inverness-shire and Argyllshire. the Lothians, Perthshire, Ayrshire, Dumfries Correspondence. CAN NOTARIAL INSTRUMENTS BE ABOLISHED? [TO THE EDITOR OF THE "SCOTS LAW TIMES."] SIR, At the meeting of the Incorporated Society of Law Agents in Scotland, held at Dumfries on 28th September last, an interesting discussion took place on the Reform of Scots Conveyancing. All present were agreed that it needed improvement, reform, and consolidation, and, if possible, codification, and their Council was instructed to co-operate with other societies for these objects. Notarial instruments were referred to as specially needing reconstruction; and the feudal system, now existing only for the benefit of superiors, was proposed to be abolished. In these views most conveyancers now concur; and it deserves consideration whether notarial instruments--remnants of the feudal system-may not be entirely abolished. The question may be best understood and considered by pointing out the form in which their object of placing on record the title of a new proprietor, and the links by which he is connected with the one who was last vest and seized, as the feudalists would say. Let it be supposed that the Committee to be formed by the societies gets legislative sanction to shorten and improve forms of the disposition, bond and disposition in security, disposition of annual rent, long lease, or other primitive recorded writ, by dispensing with formal clauses to be implied; that a person, A., whose title is complete, has granted a disposition which has not been recorded, and that the property has passed by various personal transmissions until it comes to D., who sells to E. D. would grant his disposition in the following terms : "I, D., in consideration (price or short narrative), sell or grant and dispone to E., all and whole the lands (describe or refer to recorded description), with and under the burdens, conditions, &c. (specify or refer to if necessary), in which lands A. was invested by disposition in his favour, recorded (register and date), and to which lands I have right by the following writs :-(First), disposition by A. to B., dated, &c.; (second), decree of the general service of C., as the eldest son and nearest lawful heir of B., obtained, &c.; (third), disposition by C., dated, whereby he sold to me the lands, under the following burdens, conditions, &c., which he appointed to be inserted or validly referred to in any future transmissions thereof-videlicet," &c. Now, when recorded, this disposition would have the same effect as a recorded notarial instrument, which would thus be unnecessary. Had every link in the chain been recorded, it would have been equally unnecessary; and it is fortunately a uniform practice at once to record a disposition as soon as completed, but cases will occur where that is not done, and hence the recording of the instrument according to present practice. But a party may hold by general service (as in the case of C., above supposed), or by general disposition, or as trustee, &c. How is his title to be completed without a notarial instrument? That question has been already answered or referred to in your columns. Let a warrant to record be granted by or on behalf of C. in somewhat like the following terms :-- Register, in the register of the county of D., C., as proprietor of all and whole the lands (describe or refer) in which A. was invested by disposition in his favour, recorded, &c., and to which C. has acquired right by the following writs:-(First) disposition by A. to B., dated, &c.; (second) decree of his general service, as the eldest son and nearest lawful heir of B., obtained,” &c. worthy of a place in your columns. The aboliPerhaps you may deem these suggestions tion of notarial instruments would render unnecessary the office of notary, and so deprive him of rights for which he has paid; but, as a body, the notaries would not complain if they believed that land rights would be simplified and proprietors benefited by the change. AN OLD N.P. |