PERTHSHIRE. Kippen v Dec. 5, 1906. Note. The defender is registrar of births, marriages, and deaths for the parish of Ardoch. It is in that capacity that he is called in this action. Ardoch is a landward parish. The defender was appointed registrar of Ardoch by the Parish Council on 31st March, 1899. The defender was to be paid by salary. The salary was £7 10s. When the Parish Council of a parish appoints a registrar, the election is by statute to be intimated within ten days thereof to the RegistrarGeneral. The registrar, once appointed, is under the control and superintendence of the Sheriff. He has also a relation to the Registrar-General, and that official has under him inspectors or examiners, who inspect the books of the registrar. The ordinary duty of a registrar is to register in his books, without fee, births, &c., occurring within his district, the parties having special cognisance of a birth, &c., being, on their part, bound under a penalty to supply the information necessary to be registered. By the Registration Acts a registrar is entitled to fees, authorised by that Act to be taken. Of these he is bound to keep a correct account. At a certain part of the year he is bound to deliver a transmit or copy of that account to the Sheriff with whose Sheriff-clerk the account is to lie. It is to be furnished to the Registrar-General for his purposes. The fees contemplated are for late registration of a birth, insertion of a baptismal name after registration, insertion of the name of an unbaptised person after registration. Further, the registrar is to have a fee if the parties require him to attend the solemnisation of a marriage in his parish. (It may be noted that this does not countenance registrars meddling in irregular marriages for fees.) Again, should a conviction be obtained before a magistrate of persons who have contracted an irregular marriage, or should the Court of Session or House of Lords declare a marriage to have been constituted, the registrar of the parish of the domicile of a party thereto is entitled to a fee for registering it. Each registrar has to make up an account each year, the account being according to a scale given by the Act. with such further remuneration as the Parish Council think fit. At this part of the statute. however, comes the proviso, "provided that it shall be lawful for the Parochial Board -now the Parish Council-" with the approbation of the Registrar-General or of the Sheriff, to place the registrar and assistant registrar upon annual salaries, the amount of which shall be fixed by the Parochial Board" -now Parish Council-" with the like approbation; and such salaries shall be paid by the Parochial Board out of the assessment to be levied as hereinbefore directed; and the fees received by the registrar, which in such case shall be accounted for by him to' the Parochial Board "-now Parish Council. At a later part of the statute there comes mention of other fees, viz., for searches and examinations of the books, and for extracts which the registrar is empowered and directed to make and give out. The Registrar-General was given power to diminish the fees. The Registration Act, 1855, does not appear to require to be referred to here. By a later Act the Registrar-General may, on the representation of a registrar that his remuneration is inadequate, require the Parochial Board-now Parish Council to increase it to an extent which he may think necessary; and should there be a difference between the Registrar-General and the Parochial Board-now Parish Council the Sheriff is to determine the matter finally. Under the Registration Acts "Sheriff" includes "Sheriff-Substitute." Under the Vaccination Act, 1865, and under the Friendly Societies Act, 1896, certain fees are payable to registrars. As the defender is, under his appointment, a registrar paid by salary, it is thought that the law applicable to him is that his salary is paid out of a sum formed from two sources, viz., (a) an assessment upon the ratepayers in the parish, levied along with, but separate from, poor assessment (if an assessment be needed); and (b) the fees received by him, "which fees shall be accounted for" by him to the Parish Council. The defender's superiors in his office are, then, the Sheriff and the Registrar-General. The defender's paymaster is the Parish Council. The fees will go into that part of the Parish Council receipts which is carried to the " general parish fund," because that part of the receipts takes the place of the funds of the old Parochial Board. The accounts of a Parish Council are the subject of a statutory audit. An auditor is appointed by the Local Government Board. To him the Parish Council is, by its clerk, annually, between 15th May and 1st August, to transmit its accounts. The pursuer of this action is the auditor appointed by the Local Government Board to audit (among those of other parishes) the accounts of the parish of Ardoch. The accounts of a parish are to be made up and balanced as at 15th May in each year. The clerk of the Parish Council-Mr. Jeffray, solicitor, is clerk of the Parish Council of Ardoch-is to give fourteen days' notice of the time and place of audit. The auditor may, by demand in writing, require production of all accounts and documents "which he may deem necessary," and may require any person holding the same to appear before him at any such audit, under a penalty. He may, by interim report, dis PERTHSHIRE. Kippen v Monteith. Dec. 5, 1906. Sheriff SYM. PERTHSHIRE. Kippen v Monteith. Dec. 5, 1906. Sheriff SYM. allow expenditure which is, in his opinion, contrary to law, and if any sum has not been brought into account which, in his opinion, ought to be brought into account, he may, by interim report, report thereon to the Local Government Board, which Board, after due notice, may decide this question of audit, and the auditor is thereafter to complete his report. The action is brought by the auditor (after much correspondence with the defender) for decree ordaining the latter to produce books and documents relating to the fees received by him as registrar of Ardoch for the year ending 15th May, 1906, for extracts from, and searches in, his books; and for decree ordaining the defender to attend at the pursuer's office with his books and documents, and to give such information and explanation thereanent as may be required, and to sign a declaration thereanent certifying their accuracy, all as set forth in the Parish Councils Act and the part of the Local Government Act (or County Councils Act) thereof made part. The defender objects to do so. The SheriffSubstitute is desirous to assume in his favour that this is not from any contumacious desire to disobey the statutesa thing which he disclaims in the correspondence-but because he holds that the true point at issue is his right to certain fees in addition to his £7 10s. of salary. He considers that the question is one for the Sheriff under the Registration Acts, and is a question to be decided under these Acts in a summary manner. He maintains that the statutory audit arrangements of sec. 70 of the Local Government Act do not apply to his case. It appeared to the Sheriff-Substitute at the time of the debate doubtful whether the auditor had a title to suewhether, assuming everything else in favour of the action, the Local Government Board, which is behind the auditor, ought not to be a party. For, prima facie, an auditor is not the person to come forward with an action for accounting. The accounts, being brought before him at the instance of those having right, are the result of the audit; he settles them and reports. (And Mr. Barty forcibly stated certain other grounds for doubting the title, which may be said to make a case in which the title to sue depends on the merits or want of merits in the action.) The Sheriff-Substitute has come to think that the statutory rights and position of the auditor of a Parish Council do confer upon him the right, if obstructed in his duty, to approach the Sheriff for an order upon the registrar to make furthcoming his accounts and papers. Nor does the SheriffSubstitute think that he can, at all events in this question of a claim to refuse to submit to audit, affirm the proposition of the defender that his appointment was not under Kippen v Monteith. Dec. 5, 1906. Sheriff SYM. sec. 51 of the Registration Act in respect of salary. Prima PERTHSHIRE. facie it is such, and the Registrar-General at the time seems to have so considered it. Nor can he affirm the defender's other proposition for the purposes of this case, that the true question being one of right to fees, the action cannot be maintained. It is thought on the other hand that the defender is bound to have his accounts audited by the Parish Council auditor. On the audit questions may arise as to whether the auditor is entitled to bring this or that feesay, a particular search fee-into account. And a question may arise whether the Sheriff or the Local Government Board be final judge. This process does not appear to the SheriffSubstitute suitable for the determination, directly or under cover of any order in it, of matters of right to fees. He has therefore made an order expressly reserving what scarce needed a reservation, but at the same time directing the registrar to take the steps which will enable the parish audit to be completed. Prima facie it cannot be completed without that, and questions can be settled on report. There appears to be no hardship to the defender in directing him to come to Perth. In order to save his position he refused to see the auditor when the auditor offered to come to Ardoch. In the ordinary case a personal interview does not seem to be necessary. It may be so here. Just at the inception of the process the defender sent in For pursuer-Mr. W. M. JEFFRAY, Dunblane. SHERIFF COURT OF HADDINGTONSHIRE. No. 73. HADDINGTON SHIRE Provost, &c., of North Berwick v Wilson. HADDINGTON SHIRE. Provost, &c., of North Berwick v May 4, 1907. Sheriff MACLEOD. or old Rhodes Links, lying within the burgh of North Berwick. The defender maintained that he held the subjects for a year, and that, under the provisions of sec. 28 of the Agricultural Holdings (Scotland) Act, 1883, he was entitled to not less than six months' notice of the pursuers' intention to bring the tenancy to an end before the termination of his lease. Not having received such notice, he pled, inter alia, (3) the defender being lawfully in possession of the subjects let under a lease which will not expire till 1st April, 1908, the action is incompetent. The interlocutors, which were as follows, contain everything necessary to show the point in dispute: HADDINGTON, 4th May, 1907.-The Sheriff-Substitute, having heard parties' procurators on the closed record, repels the defender's first plea, sustains the pursuers' second plea, grants warrant as craved; finds the pursuers entitled to their expenses, modifies the same to the sum of £3 3s., and decerns against the defender for payment thereof to the pursuers. HECTOR MACLEOD. Note. Though Mr. Guild naturally speaks with authority on a subject such as this, he has not persuaded me that the defender's sheep can be permitted to remain on these links. He pleads tacit relocation, and, in the face of the combined effect of the notice of 28th January, 1907 (No. 6 of process), which is in itself badly defective, and the correspondence (No. 5 of process) which followed thereon, it would have been useless to plead want of notice (even if notice were an essential), except under the provisions of the Agricultural Holdings (Scotland) Act, 1883. As the controversy relates to pasture, it is well to remind one's self that, so long ago as 1805, the law of Scotland was clearly laid down in Macharg, petitioner, Mor. Dict., Removing, appendix, part 1, p. 6, No. 4, thus-" The fields let to Macharg were entirely for pasture and let from year to year, in which circumstances it is universally understood that the doctrine of tacit relocation does not take effect. Unless the tenant makes a new bargain, he is not entitled to remain a single day after the term is expired; and, if he does, he may be summarily removed, because he has now no title of possession whatever "; and this case is quoted with approval in a note on page 380, vol. 1, of the 1824 edition of Erskine, thus-" Formal warning is not necessary in the case of grass parks let from year to year." Accordingly, we set out on our study of this controversy with the clear knowledge that, as far back as the books take us, the effect of silence on a yearly let of pasture has always been that it comes to an |