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


NOV 28 1940





EDINBURGH, MAY 19, 1894.

THE HONOURABLE LORD KYLLACHY. VILLIAM MACKINTOSH, Q.C., LL.D., son of William Mackintosh of Inshes House, sometime Provost of Inverness, was born in 1842. He was educated at the Edinburgh Academy and at the University of Edinburgh. In 1862 he graduated as M.A., with first-class honours in Mental Philosophy; was admitted to the Faculty of Advocates in 1865, appointed Procurator of the Church of

Scotland in 1880, and Sheriff of Ross, Cromarty, and Sutherland in 1881. In February 1886 the Faculty of Advocates unanimously elected Mr Mackintosh to be their Dean, and in this capacity he presided at the banquet in the Parliament

as a man of honour and probity, have secured to you the confidence of your brethren, and in like manner will command the high consideration and respect of the Court." In 1889 Mr Mackintosh was raised to the Bench, with the judicial title

Courts. His pleading was

of Lord Kyllachy. Since 1889 he has been a member of the Universities

Commission; in 1889 he received the degree of LL.D. from the University of Edinburgh; and he is a Deputy-Lieutenant of Edinburgh and of Inverness.

At the bar Mr Mackintosh was known as an industrious and successful counsel, and for many years before his elevation to the Bench his services were SO highly valued that

he was employed on one side or the other in almost all the leading cases in the lucid and thorough;


House on the occasion of Her Majesty's Jubilee. When welcoming the new Dean after his election, and he possessed the too rare faculty of putting the Lord President (Inglis) said:- "Your suchis case clearly before the Court, and giving it cessful career 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.

years have developed in his Lordship a taste for brevity and conciseness which, if it could be gratified more fully, would greatly facilitate the proceedings of the Court.

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.

Lord Kyllachy is a man with many friends and many interests. He is a keen golfer, and devotes much of his spare time to the care and development of the estate in Inverness-shire from which he takes his title.


Owing to the expression of a very general wish on the subject, we have decided not to number the pages of the reports of cases separately from the rest of the paper.

of such houses-infinitely greater than those mentioned in the preamble; and it is a wanton interference with the freedom of contract between landlord and tenant.


The Statute Law Revision Act of 1892 has effected a considerable change in what remains 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 assessments" lawfully imposed, and sums decerned for aliment; and the Civil Imprisonment Act of 1882 specially dealt with imprisonment for rates and assessments, and for sums decerned for aliment, regulating the procedure in regard to the power to imprison for such debts. It specially provided (section 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 exceeding six weeks; and sub-section 6 of that section abolished the ridiculous practice of making the incarcerating creditor liable for the aliment of the debtor, and put such debtor in the position, as he undoubtedly is, of one guilty of contempt of Court.

In virtue of this Act, it is quite common for an unwilling debtor in aliment cases to be sent to

of this course being resorted to that makes debtors pay. Of course this applies, or rather, as will be seen, applied, equally to the cases in the Small Debt Court as in the ordinary Court.

A curiosity and monstrosity amongst legislative proposals has been introduced into the House of Commons, and named The Smaller Dwellings Tenure (Scotland) Bill, 1894. The 4th clause proposes to enact that "No dwelling-house of a less annual value than £15 of yearly rent situated within a burgh shall hereafter be let for a longer period than one month, unless a garden is let along 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 agreement to the contrary notwithstanding, and the period of the let of all such dwelling-houses shall expire at noon on the twenty-eighth day of a month." This might be made a little more drastic, but certainly not more ridiculous, by the imposition of a penalty on any one letting a house, or taking a house, of the value specified, for a period of more than one month. The prohibition against enter ing into an agreement for a longer lease, or rather the refusal to give legal recognition to such an agreement, has certainly the merits of originality and daring. These merits also characterise the proposal to fix the term of expiry of a lease as at the twenty-eighth day of a month-we presume "any agreement to the contrary notwithstanding." The measure would, if passed, entail great inconvenience and hardship on the part of the tenants

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By the Revision Act of 1892, however, it is declared that the word "imprisonment occurring in the text and schedules of the Small Debt Act are to be delete," which means, that a creditor in an aliment case no longer gets a decree under which he can charge on pain of imprisonment, and consequently he is unable to take any action to have the debtor incarcerated if he refuse to implement the decree. Now, it has to be observed in regard to the last Act, that its object, as its preamble distinctly says, is not to alter the law, but to deal with Acts or sections of Acts whose use is spent. Here, however, it is perfectly clear that the Act was dealing with what had not fallen into

desuetude, and it also seems perfectly clear that it has not in any way altered the law as specially reserved by the Debtor Act, and dealt with by the Civil Imprisonment Act: what it has done is to render this law, so far as regards actions in the Small Debt Court, inoperative.

We can hardly imagine that such a change was 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 cases specially reserved.

We had thought that this being, as we consider, the true explanation of the change, it would have been remedied shortly thereafter; but though two Revision Acts have since been passed, nothing has as yet been done. Clearly it is necessary to do something; for if matters are allowed to remain as at present, it must mean that the jurisdiction of the Small Debt Court will be so much diminished, as litigants for aliment would, we submit, when the claim was under £12, be perfectly justified in raising their action in the ordinary Court and getting ordinary Court expenses, on the ground that the operation of the law could not be fully

carried out otherwise.

ROYAL STATISTICAL SOCIETY. - The seventh ordinary meeting of the present session will be held on Tuesday, the 22nd May 1894, in the Geology, 28 Jermyn Street, S.W., at 7.45 P.M., when the following paper will be read :-"Statistics of Litigation in England and Wales since 1859," by John Macdonell, Esq., LL.D.

Lecture Theatre of the Museum of Practical

A TIMELY reminder has been given by Mr Justice Wills to all those whom it may concern,

that a prisoner who enters into recognisances to come up for sentence when called upon does not commit a merely formal act. About a year ago a man was convicted at the Liverpool Assizes of receiving stolen property, but was discharged on entering into his recognisances. Since his lenient treatment he has twice been convicted of felony, in consideration of which Mr Justice Wills has had him called up for his previous offence, and has added to his sentence an additional year, with hard labour. It is gratifying to know that the bulk of the persons who are thus released do not abuse their liberty. Mr Justice Wills stated that during his ten years' experience as a judge he had had occasion to call up but three men.-—Law



"A LONDON SOLICITOR" writes to a contemporary, with regard to the new death duties: "Speaking from an experience of over fifty years, I believe that the proposed increase of death duties will lead to great evasion, and consequently

THE subject of the portrait in next week's issue will be of doubtful advantage to the Revenue. I will be:

C. B. DAVIDSON, Esq., Advocate, Aberdeen.

MESSRS SMITH & MASON, S.S.C., Edinburgh, will dissolve partnership on 26th May. Mr Addison Smith will continue to carry on business on his own account at 19 Heriot Row. Mr Mason will continue to carry on business on his own account at 51 Hanover Street.

MR DONALD DAVIDSON, Sheriff-Substitute of Ross and Cromarty and Sutherland, at Stornoway, has been appointed Sheriff-Substitute of Inverness, Elgin, and Nairn, at Fort-William, in room of Mr James Simpson, resigned. Mr George James Campbell, solicitor, has been appointed Sheriff Substitute at Stornoway.

have found an increasing desire, especially on the 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 enough to discover that by investing their money in inscribed or other securities in America and elsewhere they will escape the probate duty, and if they reinvest the income without bringing it to this country will also escape income-tax. I have 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 discontent in the case of capitalists resident abroad, and not English subjects, who, as is often the case, have left large sums with leading mercantile and other houses in London and elsewhere. When they die the probate duty now payable is very onerous. If it is increased the result may probably be the withdrawal of considerable capital from this country."

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