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«Anderson, R.G. (2015) Assignation of all sums securities. In: McCarthy, F., Chalmers, J. and Bogle, S. (eds.) Essays in Conveyancing and Property Law ...»

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Anderson, R.G. (2015) Assignation of all sums securities. In: McCarthy, F.,

Chalmers, J. and Bogle, S. (eds.) Essays in Conveyancing and Property Law

in Honour of Professor Robert Rennie. Open Book Publishers: Cambridge,

pp. 73-95. ISBN 9781783741472

Copyright © 2015 The Author

This work is made available under the Creative Commons Attribution 4.0

License (CC BY 4.0)

Version: Published


Deposited on: 26 May 2015

Enlighten – Research publications by members of the University of Glasgow http://eprints.gla.ac.uk

5. Assignations of All Sums Securities Dr Ross G Anderson No appointment was ever more successful and none illustrates more clearly the desirability of having as a professor one who is conversant with the practice of the branch of the law he is called on to teach. To set a man to teach conveyancing who is not engaged in large practice, and who only knows the subject from books or historically, is like making a man professor of surgery who has only read about it and who never performed an operation.1 A. The Chair of Conveyancing (1) Introduction Robert Rennie was appointed the Professor of Conveyancing in 1993.

During a tenure marked by indefatigable industry, Robert’s chair became, in the eyes of the profession, the face of the Glasgow Law School. With Robert’s retirement, there comes the opportunity to reflect not just on Robert’s contributions, but also on the place of the Chair he has held with such distinction in the Scottish legal profession, in legal education and in D Murray, Memories of the Old College of Glasgow (1927) 236, describing the first holder of the Chair of Conveyancing, Professor Anderson Kirkwood.

© Ross G Anderson, CC BY 4.0 http://dx.doi.org/10.11647/OBP.0056.05 74 Acquiring Property legal scholarship. So before addressing the technical topic I have chosen for my contribution, it is first to the history and context of the Chair that I turn.

(2) The first Conveyancing Chairs 2014 saw the Tercentenary of the appointment of the first holder of the Regius Chair in Civil Law in the University of Glasgow, William Forbes in

1714. But it was in the nineteenth century that the Universities of Glasgow and Edinburgh founded chairs of Conveyancing. If the word “conveyancing” is considered to be a word for which Scots lawyers have peculiar affinity, it may be because University Chairs in Conveyancing is a peculiarly Scottish phenomenon (although the basic idea which underlies these Chairs – is modern phenomenon in the United States, where they are Professors of clinical legal education). The creation of the Chair of Conveyancing in the University of Edinburgh marked a significant break with the effective monopoly exercised by the Faculty of Advocates on the chairs in law in the University, since appointment to the Chair of Conveyancing would come from the ranks of the Society of Her Majesty’s Writer’s to the Signet. The notion of the “lower branch” of the legal profession – solicitors – being remotely qualified to found a University Chair was a source of considerable invective from members of the Faculty of Advocates, the politically conservative members of which found the appointment of the leading Whig, and future editor of the Edinburgh Review, Macvey Napier, as the first holder, almost too much to bear.2 One of the most prolific contributors to the contemporary conservative periodical, Blackwoods Edinburgh Magazine, himself an advocate, pointedly observed how, in England, conveyancing was in the hands of the bar:3 the English, he ventured, would “laugh” even to hear even of a lectureship, never mind a Professorship, of conveyancing in “Francisculus Funk,” “The Pluckless School of Politics, No 1” (1823) 14 Edinburgh’s Blackwood Magazine 139-44. Funk was the pseudonym of John Cay, Advocate: see A L Strout, A Bibliography of Articles in Blackwood’s Magazine: volumes I through XVIII, 1817Cay was sheriff at Linlithgow from 1825 to 1865. Cay was one of the oldest friends of John Gibson Lockhart (for whom see n 202 below): D Douglas (ed), The Journal of Sir Walter Scott, from the original manuscript at Abbotsford (1890) (reprinted 2013) I, 22, n 1. For the background to the Edinburgh Conveyancing chair in the WS Society’s lectures, first given by Robert Bell, brother of George Joseph, see my “Introduction” to G Watson (ed), Bell’s Dictionary and Digest of the Law of Scotland, 7th edn (1890) (reprinted

2012) xviii-xxxi.

3 As it remains to this day: see, for instance, the references to “conveyancing counsel” in the English Civil Procedure Rules, r 40.18 and 40.19 and Practice Direction 40D.

Assignations of All Sums Securities 75 a University.4 The “abstruse science” of conveyancing,5 in so far as it related to deeds, according to this disaffected and “nearly fee-less advocate” was insufficiently learned to justify the erection of a University Chair; and esto there was a need for such a chair – as advocates say – only a member of the Faculty of Advocates would be sufficiently respectable to hold it.6 The background to the Glasgow Conveyancing chair is no less without human interest. As in Edinburgh, the local professional association – of which a good proportion of Glasgow’s law graduates have become members – the Faculty of Procurators in Glasgow,7 finding the instruction of the University Professors out of touch with the needs of aspiring writers,8 took matters into its own hands. The Faculty of Procurators appointed, in 1816, one of its own, James Galloway, to give a series of lectures on Conveyancing. Galloway’s lively lectures, though now largely forgotten,9 display considerable learning and a palpable enthusiasm for the subject.10 Eventually, the Faculty of Procurators agreed to endow a chair in the University, on the Edinburgh model, in 1861.11 The first holder was Anderson Kirkwood, of whom David Murray – someone well placed to judge12 – wrote the words which introduce this contribution. The central “C.N.,” “Tail-Piece” (1823) 14 Edinburgh’s Blackwood Magazine 144. “C. N.” = Christopher North, the pseudonym of a number of contributors, often John Wilson, Advocate and Professor of Moral Philosophy in the University of Edinburgh, but in this case Strout (n

200) attributes this tail-piece to John Gibson Lockhart, Advocate, but best known as a satirist and as the biographer of his father-in-law, Sir Walter Scott.

5 Cf G L Gretton, “Sharp Cases make Good Law” 1994 SLT (News) 313-14: “Feudal law is hardly a popular subject. Indeed, together with ‘mediaeval’ and ‘Dickensian’ it is an all purpose term used for condemning the grubby and unwanted survivals of an obscure and barbarous past. Of course, most feudal law has long since been abolished. But some parts remain, perhaps unloved, and perhaps unloveable, but law.” 6 Pluckless, “School of Politics” (n 200) 139 ff.

7 See D Murray, “The Faculty of Procurators in Glasgow” (1897) 13 Scottish Law Review

36. The Faculty received its royal patronage from His Majesty in 1950. For Murray, see n 210 below.

8 Compare the French ‘écrivain’ and David Murray, “The Term ‘Writer’ as used in Scotland,” Glasgow Herald, 15 March 1884.

9 D M Walker, A History of the School of Law: The University of Glasgow (1990) 41.

10 J Galloway, Lectures in Conveyancing (1838).

11 Ordinance of the Scottish Universities Commission, 15 June 1861, signed by John Inglis (then Lord Advocate): Edinburgh Gazette June 18, 1861, 792-93.

12 A remarkable lawyer, scholar (not just in law) and bibliophile, Murray was himself a conveyancer: see e.g. J Rankine, J L Mounsey and D Murray (eds) The Scots Style Book (1902-1905) 7 vols. A founding partner of Maclay Murray & Spens LLP, he was arguably the foremost Scottish legal scholar of the generations his long life spanned. He donated 24,000 items of this 40,000 volume library to the University of Glasgow. To this day, that collection, too little recognised, remains one of Glasgow’s greatest resources.

For Murray, see M S Moss, “Murray, David” Oxford DNB (2004-).

76 Acquiring Property importance to the University of a Professor with the invaluable experience of the law in action, as well as law in the books, is evident in the roles of the first two holders of the Chair, whose efforts were instrumental in organising the practicalities – funding, contractual negotiations and dealing with the small matter of acquiring the site – for Sir George Gilbert Scott’s unmistakable building at Gilmorehill.13 (3) The 1916 election to the Conveyancing Chair The Emeritus Professor of Comparative Law at Oxford, Bernard Rudden, himself a qualified solicitor, once pointed out that academics are, from the nature of their position, risk averse, sometimes unsuited, and often little grounded, in the realities of commercial life.14 And it is difficult to imagine any Professor, insulated from the pressures of daily practice, and whose knowledge of the law was derived only from the books, being able to offer to students Galloway’s lively, if portentous, admonition that:15 One single blunder in a deed, by which it may be rendered invalid and ineffectual – whether this may have arisen from ignorance, or carelessness – might have the effect to subject the unfortunate conveyancer by whom the deed had been framed, in damages, to such a ruinous extent, as might blast all his future prospects, and involve him in penury and misery during the remainder of his life… But practical experience and scholarly achievement are not mutually exclusive: a pointed perhaps never better demonstrated in the 1916 election to the Chair of Conveyancing. The election would mark the first appointment of a professional academic in the modern sense to a law chair at a Scottish university. David Murray, whose words open the present contribution, was a colossus not just in the west of Scotland but of the Scottish legal profession as a whole. A former Dean of the Faculty of Procurators, he was a member of the Council of the Faculty of Procurators that made the appointment to the 1916 Chair. All of the applicants wrote to Murray personally and, characteristically, Murray has meticulously 13 Murray (n 199).

14 B Rudden, “Selecting Minds: An Afterword” (1993) 41 American Journal of Comparative Law 481 at 486.

15 J Galloway, Lectures on Conveyancing (1838) 9. The student or academic reader who considers the warning overblown should reflect on Lonedale Ltd v Scottish Motor Auctions (Holdings) Ltd [2011] CSOH 4.

Assignations of All Sums Securities 77 preserved each application for posterity.16 The other members of Council who would have been eligible to vote were William Gillies (Dean), David Murray (Ex-Dean), James Mackenzie (Ex-Dean), Peter Lindsay Miller, John Mair, William George Black, Thomas Alexander Fyfe, Andrew Mackay, James Graham, Daniel Munro Alexander, and Allan Maclean.17 (4) The candidates In the election there were 13 candidates, all drawn from the local profession.

For present purposes, historical interest immediately focuses on three of those candidates: Hugh Reid Buchanan, John Richard Cunliffe, and William Sharp McKechnie.

John Richard Cunliffe, a local writer with long experience, submitted a modest letter of application focussing on his practical experience and eschewing testimonials. Almost as an afterthought, Cunliffe mentions in passing that, since he was applying for a University Chair, it might be “not irrelevant to mention that I have done a good deal of literary work,” referring to his editorial work on a number of English classics and his New Shakespearean Dictionary (1910). Having been spared the responsibilities of the Conveyancing Chair, Cunliffe would go on to produce Blackie’s Compact Etymological Dictionary (1922) and the standard student text, A Lexicon of the Homeric Dialect (1924). To put the merit of that work in modern context, it was republished in the United States by the University of Oklahoma, in 1963, with paperback editions following in 1977 and, again, as recently as 2012.18 Hugh Reid Buchanan,19 a prize-winning MA philosophy graduate, had proceeded to Germany, to study at Jena and Berlin, where he had spent two years studying philosophy and jurisprudence, before returning to take an LLB with distinction. He had been the University’s lecturer in Roman law before becoming the solicitor to the Caledonian Railway Company and, at the time of his application, a partner with M’Grigor Donald & Co.

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