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The rules of law applicable to these two sorts of party-walls are, in some respects, quite distinct. Let us suppose, in the first place, an ordinary division-wall between two gardens, or other prodia rustica. It may have become the common property of the conterminous landowners, by their having built it at their joint expense, one-half on each estate ; or one of them, having erected it wholly at his own charges, and on his own soil, may have conveyed a right of common property in it to the other; or their common author may have constructed the fence, and thereafter conveyed to each a similar right in giving out both of the adjoining pieces of ground. In these circumstances the rule “melior est conditio prohibentis strictly applies. Each proprietor has an absolute right to preserve the status quo. His neighbour cannot undermine it, or precipitate its decay or fall, by causing the side facing his ground to bear extraordinary weights, or by breaking gaps into it, even ad medium filium. But, on the other hand, there could be no objection, it is supposed, to its being used for sustaining creepers or fruit-trees, from which no injury to the wall could be anticipated. It would seem, further, that “necessary operations in rebuilding, repairing, &c., are not to be stopped by the opposition of any of the joint owners ” (Bell, Pr. 1075).
The law of ordinary division-walls is illustrated by two cases. One of these is the last-mentioned case of Jack v. Begg? There one of the proprietors attempted to convert what was undoubtedly an ordinary mutual division-wall between the back-grounds of adjacent suburban subjects into a gable for a house which he proposed to build. This was decided to be quite illegal. But in respect that the other proprietor had lain by and seen the proposed gable raised to the height of four storeys without effectual objection, and even pending negotiations about obtaining the use of it, it was further held that the Court had an equitable power to let the gable stand, on condition that when the latter came to make use of the gable as such, he should have a right to do so without paying any compensation to the other proprietor. The shape taken by the indemnification for illegal building partly on the objector's soil was justified by the Court, in the circunıstances of the cases, partly on its having been all along offered by the intruder, partly on general equity, and partly on being in accordance with the paramount rule of indemnification.
The other case referred to is Dow & Gordon v. Harvey, 9 Nov. 1869, 8 Macph. 119. A sufficient mutual division-wall between two feus, given out by a common author, was, by the terms of the fen-rights, to be built by the feuars, each of them paying, or relieving the other of, half the expense. It was stipulated that the whole walls should not exceed eight feet in height, except by con
1 Warrers v. Marwick (infra).
? See also Begy v. Jack, 10 Jan. 1874, 1 Ret. 366, and the observations of Lord Deas in Lamont (supra).
sent, and in no case ten feet. One of the fenars built a divisionwall six and a half feet high, furnishing it in the ordinary way with a copestone, and this before the other took his feu. Thereafter the former proceeded to raise the wall to the height of eight feet. It was held by the Second Division that the latter was entitled by the maxim “melior est conditio prohibentis” to prevent any such alteration; since the original wall of six and a half feet was obviously a sufficient wall in the circumstances, and had been plainly intended to remain permanently of that height. Lord Benholme was of opinion that, at the date of the original erection, either party might have prevented the other from raising the wall to eight feet, on proving that six feet and a half were sufficient. Lord Neaves, agreeing with the Sheriff, was of an opposite opinion. The same rule of the civil law was enforced in the only other case which treats of this sort of wall (Warrens v. Marwick, 13th June 1835, 13 Sh. 944), but the decision seems to have been rested, not solely on the absolute right of either party to check alterations, but also on the distinct interest of the objector to stop a heightening which would have the effect of obstructing the light from his cottages situated a few yards off.
(To be continued.)
ADMINISTRATION OF JUSTICE IN SWEDEN.
Of late years many alterations have been made, and more have been proposed, with respect to the administration of justice in Scotland. The general tendency of the various recent Acts affecting legal procedure has been to simplify the law, and to render more speedy the judicial settlement of the numerous disputes, which must always arise, among our enterprising population. None of these changes have, however, gone so far as to reduce litigation to the comparatively humble position which it occupies in Sweden, and which it would not be desirable to imitate, in the interest either of the litigants or of the law. At the same time, a certain amount of interest attaches to a system which assumes that every man is his own lawyer, and which, consequently, is obliged to make provision for the necessary ignorance of those who invoke its aid.
Sweden is divided into one hundred and two Domsagor, or sheriffdoms, in each of which there is a Court of First Instance, presided over in the country districts by a single Judge, or Häradshöfding, who is appointed by the Crown, and who is assisted in his deliberations by twelve assessors chosen by the peasant proprietors from their own number. The only qualifications which these peasant assessors require to possess are the owning of land within the district, and the being above the age of twenty-five. No peasant can refuse to serve unless he be above sixty years of age, or has already served. In the latter case, he is liable to be called on again after all the other peasants have served. An assessor is not allowed to resign until he has served for two years, unless he leaves the locality or becomes unfit to discharge the duties of the.office. A father and his son, a father-in-law and his son-in-law, two brothers or two brothers-in-law, cannot take part in the trial of any cause, unless there be seven assessors present, and in no case are more than two relations allowed to be among the number of the assessors. The assessors have no voice in the determination of any cause, except in the single case of their being unanimously opposed to the view taken by the Judge. In all other cases, the Judge decides the question, and the sole function of the assessors is to suggest points for his consideration, and to take care that the Judge gives proper attention to the claims of the contending parties. In the town districts the Court of First Instance consists similarly of assessors under the presidentship of the burgomaster, who is appointed by the Crown from a list of three chosen by the citizens.
The Courts of First Instance are divided into three groups, over each of which is placed a Court of Appeal, or Hofrätt. Forty-four Domsagor are attached to Svea Hofrätt, which holds its sittings in Stockholm ; forty-three to Göta Hofrätt in Jönkoping; and fifteen to the Hofrätt over Skone and Blekinge, which sits in Christianstad. Each Court of Appeal consists of a President, Judges, and Assessors, the latter of whom are younger Judges with smaller salaries. These Courts are divided into sections for the despatch of business. Thus Göta Hofrätt is divided into five sections, two Judges and three Assessors being assigned to each section. The Appeals are divided equally among the sections, but in some cases of greater importance a larger number of Judges is required. In the ordinary case, however, a section which is in doubt cannot call in the assistance of the other Judges, though the individual members may privately ask the opinion of their brother Judges.
From the determinations of the Courts of Appeal, an appeal lies to the Högsta Domstol, a tribunal which sits in Stockholm, and the proceedings of which are conducted in private. This tribunal consists of twelve members, eight of whom must be present at the decision of important matters, but in cases of less importance, four or five are allowed, if unanimous, to decide the appeal. The king is entitled to be present and take part in the discussion, and, when present, has two votes in the determination of any question. Doubtful points regarding the interpretation of the law may be referred to the Högsta Domstol by any of the inferior Judges, and the royal votes upon such questions may be given by him, without his being personally present in the Court.
Great care is taken to preserve the purity of the administration of justice, and the Judges bear a high character for integrity, which is said, so lately as the end of last and the beginning of this century, not to have been the case. Not merely, however, are Judges who have given unjust judgment from corrupt motives, or in
fluenced by private hatred, liable to deprivation of their office, and to other severe penalties, but where they have given a wrong decision through manifest negligence or ignorance, they are liable to be suspended from their office for a longer or shorter period, or to be fined, and, in addition, are bound to compensate the party who has been injured by their erroneous judgment. Charges against inferior Judges falling under any of the above categories are heard by the Hofrätt, to which the accused is subject, at the instance of Justitie Kangler, who holds his appointment from the Crown, and among other duties is charged with the oversight of the Judges. As a further precaution the Riksdag, the Swedish Parliament, appoints a commissioner, who is invested with extensive powers as a censor morum as regards all public officials, over whose conduct he is expected to keep a strict watch. He is entitled to enter any public office at any time, and to demand any information he may require. He may be present at the sittings of all the Courts, but can take no part in their proceedings. Lastly, the Riksdag every three years appoints a commission to take into consideration the state of the Högsta Domstol, and to report whether any, and if so, what Judges ought to retire. No reasons need be alleged; the retiring Judges become entitled to pensions, and their dismissal is not considered as inferring any stain on their character.
In the country districts assizes are held generally three times a year, and the Häradshöfding is bound to fix the time of holding them at certain specified seasons, and is liable to a fine of 20 kronor, a little more than a guinea, for failure so to do. He must also cause intimation to be made to the public from the pulpits of the various parish churches (the usual place of intimation or advertisement in the country districts of Sweden), and to the Crown officials of the district, and to the Hofrätt. On the opening day of the assizes the Judge must be present at nine o'clock, but if he do not come till twelve, he is liable to a fine of 10 kronor for the benefit of the poor, and if he do not appear at all, to a higher fine, unless he have some lawful excuse. In the town districts the Courts are held every Monday, and in the country extraordinary sittings are held when the state of business requires them.
After attending divine service on the opening day, the Judge proceeds with the business, the order generally followed being (1) the registration of mortgages; (2) Crown and general business ; (3) criminal charges; and lastly, cases which are expected to take some time. The procedure attending the registration of mortgages is particularly interesting to a Scotch lawyer, from its resemblance to the Scotch system of registration in the books of Council and Session. The creditor appears in Court with his bond or other document of debt, which is then read aloud and copied into the protocol appropriate to mortgages. Registration, however, does not take place unless there be a clause by which the debtor has consented to registration, and the bond be duly witnessed. If these two requi
VOL. XX, NO. CCXXXVI. - AUGUST 1876.
sites are fulfilled, the Judge orders registration to be made at once, with the result of establishing a real right over the debtor's lands. If there is no consent, a day is fixed for hearing the debtor, and intimation is appointed to be made to him. If, however, he is present in Court, he is at once called on to state any objections he may have to the registration. If on the appointed day no appearance is made for the debtor, registration is granted on proof of intimation having been duly made. On the other hand, if the debtor establish that the debt has been paid or extinguished, registration is of course refused; if the debtor deny his signature, or state any serious exception against it, the Judge' gives the creditor leave to summon him in an ordinary action, and if the creditor fail so to do within three months in town, or before the next assizes in the country, the petition for registration falls. The same happens if the creditor omits to register within the time named in the warrant allowing registration. After registration has been decreed, the Judge notes the fact on the bond. This registration is only effectual for ten years, before the expiry of which period the creditor must again apply to the Court to have the registration renewed, or lose his priority over subsequent bonds. This provision is found to be very inconvenient, as all debts prescribe in ten years; by failing to register again he may lose all claim under the bond, if he have not otherwise claimed payment from the debtor within that period. When the debt is paid, the debtor appears in Court, proves the payment, and then the Judge orders the registration to be cancelled. It should be added that registration is not competent where the sum of money, or the quantity of goods for which the obligation exists, is not specific.
In ordinary civil actions the procedure is very simple. The pursuer applies to the Judge, who issues a summons, which must state the name of the pursuer, the nature of the claim, the day when the defender must appear, and the place where he must make his answer, under certification that if he do not appear the case will be decided in his absence. The pursuer must give intimation to the defender by delivering to him the summons, or in some cases a copy of it, in the presence of two credible witnesses; one witness is sufficient where the defender gives an acknowledgment that he has received the summons. Personal intimation may be made everywhere except in church. Where, however, a parish is called as a defender, intimation is made from the pulpit of the parish church on some Sunday in the course of the service. Where the defender is resident within the same district, the pursuer must give him intimation within a certain period, varying with the distance of the defender from the Court, and if intimation is not made within the legal time, the summons falls. Where the defender is absent from Sweden, intimation is made by affixing a copy of the summons to the door of the Court-house. On the appointed day, both parties must appear in Court, unless they can allege some