« ElőzőTovább »
defamatory matter on which the action was founded." This refers to other utterances or publications by the defendant; but where a plaintiff, who is an author, raises the question of motive and intention on his part, it is difficult to see that there could be any objection to evidence being adduced to show or to disprove his bona fides, and the effect of his writings being challenged, to produce independent opinion to show what effect has actually been produced in the minds of others.
Whilst, however, we think that the verdict was right, and the law laid down perfectly sound, the result is that a rebuke has been administered to excessive freedom in criticism, which, though true, may be unnecessarily severe.-Law Times.
Distribution of Personal Estate among Grandchildren in England and Scotland. The rule as to the division of intestate's moveable estate among grandchildren in England, first judicially recognized in re Ross's Trusts, L. R., 13 Eq. 286, seems to be different from that which obtains with us according to Turner v. Couper, November 27, 1869, 8 Macph. 222. In England the rule is that "where a fund is divisible under the Statute of distributions among grandchildren and great-grandchildren, claiming by two lines of descent from their common ancestor, the fund must be divided into moieties, and each moiety subdivided between the respective descendants per stirpes and not per capita." In Turner v. Couper the point determined was that the Intestate Succession Act of 1855 does not introduce the principle of division per capita where the nearest surviving relations of an intestate are all in the same degree, and therefore take in their own right as next of kin; but that it applies only "where any person, who had he survived the intestate would have been among his next of kin, shall have predeceased such intestate." It was hardly open to the Court in Scotland to follow any other rule than that, because the Act of 1855 was passed to remedy a certain recognized evil, namely, the exclusion from a succession of the children of a predeceasing near relative who would have taken a share along with other next of kin. The Court were guided by the words of the Statute, which clearly enough show that no alteration of the old law of Scotland beyond the removal of this particular injustice was intended.
The rule in England depends on a Statute, but on one which was passed to regulate the whole law of distribution ab intestato, not merely to alter a corner of it. It is not for us to say that the construction adopted by the Vice-Chancellor, although contrary to that which was formerly supposed to prevail, and which was regarded by Lord Mackenzie (Roman Law, p. 287) as a more equitable rule, is erroneous. That Statute, and the case cited, are not at all applicable to the law of Scotland, which, so far as it is common law, is well understood, and so far as it is statute law is clearly expressed, and, we think, is rightly interpreted in Turner v. Couper. Money-lending and the Court of Chancery." The case of the
young Earl of Aylesford," says the Law Times, "has excited some curious comment in the press, the writers heartily sympathizing with him, but at the same time appearing to feel that Sir John Wickens strained the doctrines of the Court of Chancery. The point upon which the journalists fix their attention is that the final transaction with Morris was entered into when the Earl was twenty-one years and four months old, an age when it is popularly supposed the Court of Chancery withdraws its paternal protection. The doctrine as to "unconscionable bargains" has been somewhat lost sight of, and the age of the Earl in the case under notice was only one element presented for the consideration of the Court. It is an elementary principle that bargains with heirs, reversioners, and expectants during the life of their parents or ancestors, will be relieved against unless the person dealing with them can show that the transaction is reasonable and bona fide. The very fact of the expectant coming into the market to sell or mortgage his expectancy shows that he is not in a position to make his own terms; a court of equity presumes distress, and that is equivalent to saying that the party has not that full power of deliberate consent which is essential to a valid contract. And the court is very tenacious of this power, for it has been decided to be altogether unaffected either by the repeal of the Usury Laws or by 32 & 33 Vict. c. 4, which enacts that no purchase, made bona fide, of a reversionary interest shall be set aside merely on the ground of under value (Miller v. Cook, L. Rep. 10 Eq. 641; Tyler v. Yates, L. Rep. 11 Eq. 265, 6 Ch. 665). In Miller v. Cook the plaintiff had entered into the bargain when he had just come of age, and in Tyler v. Yates the young Lords Clinton were of age. In Webster v. Cook (16 L. T. Rep. N. S. 821) the plaintiff was forty-seven years of age, and the Master of the Rolls granted relief on the ground that the reversionary interest had been sold for an inadequate price. This decree was reversed by Lord Chelmsford, who, however, as pointed out by Vice-Chancellor Stuart in Tyler v. Yates, fell into error by conceiving that the interest in question was not a reversionary interest. "The case of Webster v. Cook," said the Vice-Chancellor, "is not consistent with the established doctrines of this Court." That is equivalent to saying that the term "reversionary interest" is more comprehensive than Lord Chelmsford supposed. On the point as to exorbitant interest, it should be remembered that the Court takes different views where there are securities and where there are none. In Tottenham v. Emmett (12 L. T. Rep. N. S. 838), Lord Westbury laid it down that though on bills of exchange, the principle being in jeopardy, a lender might demand any rate of interest, yet immediately security was taken the old rule of law prevailed.
The non-legal press has generally failed to understand the grounds of judgment in the case; but while we are rather disposed to sympathize with the Vice-Chancellor, and are not prepared to dispute the soundness and expediency of the equitable principles to which he has given effect, it must be admitted that some strong considerations
may be appealed to on the other side of the question. The Economist mentions the duty of Courts of Law to enforce contracts, without however touching on the question whether this was really a valid contract between persons free to deal with one another; and adds :— "We must again take the opportunity of expressing our dissent from the whole of this judge-made law respecting the obligation of contracts. There may be good reasons for prolonging the period of infancy, or putting infants through a period of probation before they are completely master of their own acts, but it is simply monstrous that the law with one voice should declare people above the age of 21 capable of managing their own affairs, and with another should release them from contracts which a Vice-Chancellor may afterwards think inequitable. No contract is safe if exposed to such interpretations, and we cannot but regret that the emphatic language of Baron Bramwell, which we recently quoted, as to the mischief of not enforcing contracts, is not made the governing principle of Chancery as well as legal decisions. In the present case the decision is certain to have the most mischievous effect on the class it is designed to protect. Young heirs will never know whether they are bound or not, will be apt to say that the Court of Chancery will protect them, and will accordingly be ruined more thoroughly than before, by their finding themselves bound where they hoped to be free. As the usury laws did not prevent usury, but made matters worse than before to the victims, so the judge-made usury law of the Court of Chancery will infallibly end in the worse ruin of the class which is induced to trust to it."
Graduation in Law and Law Apprenticeships.—At the opening of the Law classes of the University of Edinburgh on November 5, Professor Macpherson made some weighty remarks on these subjects, which deserve the utmost attention at this time. He said
"You are doubly welcome to the Faculty of Law this year, because you will probably have it in your power to make your relations to the University permanent. Hitherto, however permanent your personal relations with the Law Professors might become, you were excluded from the opportunity of connecting yourselves permanently with the University. The law student might have studied in this faculty for four years-and most who enter it remain three years -but the moment he ceased to matriculate that moment the University ceased to feel any interest in him. He might have been the most hard-working and most distinguished student of his year, and carried away, truly the best reward, stores of knowledge and habits of accurate and exact thought; but no fellowships awaited him at the close of his course, as they do students in other faculties. But if you, on the one hand, are not put on a footing of equality with students of the other faculties, on the other hand the University suffers. There was no lack of lawyers in its General Council when four years' study conferred qualification; but now their number is rapidly diminishing, the older men disappear with the lapse of years, four years' study no longer affords a qualification, and there are no graduates rising up to supply the places of the four-year men, and this at a time when the number of students in the faculty has very largely increased. I trust I am not premature in promising you a change in all this. But I must warn you that the sanction of the Privy Council is still required for the scheme which has been agreed upon after many years of
discussion between the Law students, the Law Faculty, the Senatus, the General Council, and the University Court. Should this scheme pass into law, three years' connection with the University-one in the Faculty of Arts and two in Law-will entitle the student to claim examination for a degree conferring the privileges usually bestowed on the careful and successful student in other faculties. I hope all of you who have complied with the condition of having studied in the Faculty of Arts for a single year will at once resolve to take this degree, and vindicate for yourselves and your faculty that place in the councils of the University which you are entitled to by your general culture, whether obtained within college walls or by the severer process of self-education, and which your faculty is entitled to by its importance to the public wellbeing. A large number of you already possess the arts qualification; many more, I am glad to say, than the public would infer from the statistics which our Principal quoted in his inaugural address, which are the more likely to produce a false impression because they accurately represent the information given by last year's students. But then the information asked-by the terms of the schedule to be filled up-excluded all students who had attended this University before, therefore most of those who come to the Bar, most of those who join the society of Writers to the Signet, and not a few who propose to join the society of Solicitors before the Supreme Courts. Last year I found that of the 173 who enrolled as students of this class, 66 had studied in arts, or 38 per cent., instead of 16 per cent. as represented by the fragmentary statistics within reach of the Principal. Is it too much to hope that the majority of you who are now entering this faculty will by and bye be found qualified to leave with the degree of Bachelor of Scots Law, to entitle and bind you for the future to take a personal interest in the welfare and progress of your Alma Mater? I trust, too, that some of you, finding your place so far secured, will push forward to the higher degree of Bachelor of Laws, for which a good many have already fulfilled, and more have almost within reach fulfilment of the precedent condition of having obtained a degree in arts. Recollect that the degree of LL.B is intended not as a professional degree, but as a high academic honour-well worthy of your striving for; and it is proposed to continue it on the footing on which it was first placed by the Universities Commissioners, to whom we owe the completeness of the staff of the Law Faculty. It is a strange circumstance that the defective early university education of lawyers-for, after making the necessary correction referred to, it still falls far short of what is to be desired-should arise, not so much from neglect of education, as from a peculiar system of education being considered indispensable, I mean apprenticeship. Law was at one time not the only profession a knowledge of which used to be attainable through apprenticeship. The tendency has been for it to disappear in other professions not requiring mechanical skill; why should there be an opposite tendency in regard to it as a method of legal education? A four years' apprenticeship was fixed by the Procurators' Act; now it is proposed to lengthen the period to five years. It is not my habit from this chair to discuss current legislation, and I am not going now to refer to the Agents Bill of last session except in its educational bearing. If apprenticeship be a good thing in the abstract, even when served in the country, by all means let it be extended; but, if it be bad or uncalled for, considering present opportunities of otherwise obtaining legal education, why extend it? If admission as an agent is, as was proposed by the Agents Bill, to confer on the person admitted liberty to practise everywhere, let care be taken to test their qualifications by every form of examination as to actual knowledge, and by every method that can be devised for proving whether the candidate can apply to the business of life any knowledge that he has acquired. But is length of apprenticeship any test of proficiency? There was a really fine sentiment underlying the idea of apprenticeship in the days when there was practically no public instruction to be had, when there were not handbooks on every branch of law, nor books of forms nor reports of decisions: the master of long experience, the depository of the carefully husbanded results of half a century of practice, training the apprentice, delighting to advise and
instruct him at every point, year after year indicating to him the difficulties he himself experienced, and telling him the best methods of avoiding or overcom ing them, encouraging the young man to consult him in his reading the MSS. styles and practicks, and the few institutional writers of whose works a law library consisted; and, after treating him as a son for five years, launching him into professional life, furnished at starting with much of the experience and knowledge of his venerable and kind master. Many of you, gentlemen, have served apprenticeships. How much of all this have you experienced? I know that your masters have given you every facility for using all the means of im proving yourselves which their own business afforded, and that in any matter of personal conduct they have given you careful, sound, high-toned advice. But how many of you have got more? I do remember that a recent lecturer at the Juridical Society reflected with satisfaction on the personal instruction he had received while apprenticed to a member of the society of Writers to the Signet, who has been lately removed by death-one of the most esteemed, whether for legal ability or for worth of personal character, of that important society; I refer to the late Mr. Dalmahoy, who superintended carefully the reading of his apprentices, and spent much time in examining them in what they had done, and in pointing out whatever was interesting or novel in the business of the office. I know there are still some agents who keep up this personal relation with their apprentices. You can tell better than I can what number do. I have had abundant opportunity of testing my views by comparing them with those of agents resident here, and not a few concur in the opinions I am indicating. I wrote recently to a much-esteemed friend, a procurator in the country. I did not know what his views were till I received his reply. He used to be an apprentice. He is now a master. He therefore knows both sides of the question. He writes:-- As a student, when I thought more about professional training than I am afraid I now do, I was strongly of opinion that a four years' apprenticeship is unnecessary, and that, as the period of service generally commences at the age of fifteen, it interrupts too soon those general studies which form the base and no mean portion of the superstructure of a sound and thorough legal education. My experience as a practitioner has not changed my convictions.' He then goes on to allude to the changes for the better introduced by the Procurators' Act, and says Although forty or fifty years ago apprenticeship as now worked under that Act might have sufficed, it is not now the best way to train an efficient lawyer;' and expresses an opinion that the possessors of university degrees would be found to bring to chambers minds so much riper and more receptive that a very much shorter period of office experience would turn out a much abler lawyer than the system of apprenticeships. But if the system is continued, he does not think it should be made shorter than four years, with one change of masters allowed. You will gather from what I have said that I am not disposed to set much value in the general case upon apprenticeship as distinguished from clerkship, and I think in all cases the period should be shortened. I can, at the same time, very easily understand that there may be individual cases to which it is peculiarly suitable and appropriate. While I say this, I think it right to add that I believe that in university towns apprenticeship is so worked as to involve comparatively little hardship. The master is always, or with rare exceptions, glad to encourage the apprentice to prosecute university studies (in reasonable subordination to office duties), whether in the Faculty of Arts or in that of Law ; and if the apprentice fails to make himself an intelligent gentleman and cultivated lawyer, and sinks into a copying-machine, then, depend upon it, the fault generally lies with the apprentice, and not with his master. It is no fault of the masters who do not reside in university towns that they cannot hold out the same advantages to their apprentices. It is the fault of their geographical distribution over the country. Though I have not long had the honour to occupy his chair, I have done so long enough to know that, as matter of fact, apprenticeships are the great bar to the general university education of the profession. I ask a student from the country what classes he has