substance, to continue the present system of special pleadings, with the exception of some trifling suggestions. It is obvious that the framers of the Report have not studied the English practice, and should it come under the notice of any of the English barristers, who are members of the Legislature, the suggestions must appear crude, and neither adapted to lessen expenses nor materially to improve the Scots system of pleading, or assimilate it to the English prac tice of special pleading. II. Bill-Chamber. "The Bill-Chamber, and all the clerks connected with it, might be beneficially done away. Applications which at present are made there might, with some slight alterations, be made directly to any one of the permanent Lords Ordinary, by which the lieges would, in effect, have a choice of courts, and the business would go on and be conducted like the other business of the Court."-Observations by Mr Ritchie, S.S.C., in 1818. Since the institution of the College of Justice in 1537, it has been the practice, in the vacations, for each of the thirteen ordinary Judges to perform the duty of the Bill-Chamber weekly in rotation. After this practice had continued for 387 years, the Judges, soon after the appointment of Lord Eldin, issued an order, which is not even entered amongst the Acts of Sederunt, laying the whole duty of the Bill-Chamber upon his Lordship. On this occasion, the practitioners, who, in behalf of their clients and the public, had the chief, or at least some interest in the measure, were not called upon to state their opinions with respect to the expediency of the change of a practice which had existed for so many centuries. But to render this important innovation permanent under the sanction of the Legislature, a clause has been introduced into the new bill, (but without any reference to the order of the Scots Judges already in operation,) "That the junior Lord Ordinary, in the Court of Session, shall officiate as Lord Ordinary on the bills at all times!" Neither the Report of the Commissioners, nor the opinions of any of the learned persons, in the appendix to the Report, recommend this inno vation, nor to delegate power for ever to the Scots Judges to regulate, by Acts of Sederunt, the forms of process of the Supreme and Inferior Courts of Scotland, although one of the reasons urged for passing the bill at the end of last session was, that it corresponded in every particular to the Report of the Commissioners. Now this clause, with respect to the Bill-Chamber, we humbly conceive, with the greatest possible deference, is highly inexpedient, and may be attended with very injurious consequences-while there can be no hardship whatever in requiring each of the thirteen ordinary Judges, during the vacations, to perform a portion of the six months duty of the Bill-Chamber, which portion would be only one fortnight, and thus allowing the junior Judge, as well as all the other Judges, five months and two weeks of relaxation. A more absurd regulation, both as respects the public and the junior Judge, cannot easily be imagined. Indeed, during last spring vacation, complaints were loudly made against the injurious effects of the measure, which were soon felt. The business in the Bill-Chamber became too heavy for one Judge to perform, and without imputing the slightest blame to the learned Judge, upon whom the performance of such heavy duty was in the first instance laid, causes were said to remain frequently too long undecided. From the nature of Bill-Chamber causes, they require generally the most urgent despatch, and should seldom remain at avizandum, that is, under the consideration of the Judge, undecided, above twenty-four hours. It is no answer to the objection to the proposed clause, that the present junior Judge may be willing to undertake the laborious duty. But the public have a material interest, that the Bill-Chamber duty, while the Bill-Chamber exists, shall be performed with the necessary despatch, and that one Judge shall not be over-burdened, nor required to perform the proper duty of other twelve Judges, who, during the same time, are unemployed. By 53 Geo. III., c. 64, § 2, it is enacted, that, "during the spring, autumn, and Christmas vacations, the whole thirteen Ordinary Lords of Session shall continue to officiate as Ordinaries on the Bills, by rotation, each week."-This act is not repealed; but it would appear that an Act of Parliament has been virtually set aside by a mere order of the Scots Judges, which is not even entered amongst the Acts of Sederunt. A stronger instance cannot be selected for inducing the Legislature to rescind for ever the power of the Scots Judges to enact Acts of Sederunt, and thus to set aside even Acts of Parliament. But the new bill is also materially objectionable and defective, in so far as, by several of its clauses, the Bill Chamber, and advocations and suspensions, are proposed to be continued, and not entirely abolished. The establishment of the BillChamber we consider as one of the greatest defects or abuses that exists in the administration of justice in Scotland. It Neither the Scots institutional writers, nor Acts of Parliament, nor Acts of Sederunt, contain any historical information with respect to the origin of the Bill-Chamber. There are numerous Acts of Sederunt, establishing and increasing the fees of the Bill-Chamber, but none declaring its constitution and the extent of its functions and jurisdiction. seems to have arisen in the progress of time from custom. But so little is the practice and powers of the Judges sitting in the Bill-Chamber understood, that the practitioners, clerks, and Judges, are often appealed to in vain for information. For instance, in the case of a bill of suspension or advocation refused with costs, and a second bill presented and passed, the clerks in the Bill-Chamber, who are presumed to know the practice in it from the time of David II., reported that the costs of the first bill must be paid, although the interlocutor awarding them had been submitted to review by a second bill, and the interlocutor itself altered by the passing of the second bill. The late Lord Kinnedder found the practice, as reported, erroneous and absurd upon principle, and it has since been discontinued. In another case, which came lately before Lord Eldin, the present Ordinary in the BillChamber, a charger, (respondent,) who had been successful in opposing a Bill of Suspension, applied for expenses. His Lordship refused to allow such expenses, and found the charger liable in the expenses of opposing the demand. On appeal to the Inner-House, their Lordships (7th July 1824) "Find that the awarding of such expense in the Bill-Chamber was inept, and accordingly in so far alter the interlocutor complained of." If the proper functions of the BillChamber be so little understood, even in Scotland, our friends on the south of the Tweed may have some difficulty to understand, even what is the meaning of the Bill-Chamber, as there is nothing analogous to it in England, except, perhaps, the Com mittee of the House of Lords, which judges of the competency of appeals to that House. For their information we may shortly state, that it is a branch of the Court of Session, having jurisdiction to review the judg ments of all inferior Judges on appeal in the form of a bill of suspension or advocation, to the effect of refusing the bill, or declaring whether it must be allowed to pass for consideration on the merits before the Lord Ordinary and Inner House Judges of the Court of Session. If the bill be passed, it is expede or extracted at full length, letters of suspension or advocation at a heavy expense, in the form of under the signet, in virtue of which the respondent is summoned to appear in the Court of Session as upon a new action. If the bill be refused upon the first appeal, a second bill may be presented in the vacation. If it be passed, the same course of procedure as upon a first passed bill is followed. If a second bill be refus ed, an appeal may be presented to the Inner House, which may remit to the Lord Ordinary to pass the bill; or if the Ordinary's judgment refusing the bill be affirmed, an ap peal is competent against the Inner House interlocutor to the House of Lords. If that House remit to pass the bill-for in this shape this is all that can be done, if the judgment of the Inner House Bill-Chamber be not affirmed-there must be a petition to the Court of Session to apply the reversal, and after all which, the round-about-course must still be followed of getting the bill passed expede the party summoned-and brought before the Lord Ordinary in the Outer House, who is then permitted, for the first time, to decide on the merits, by affirming or altering the judgment of the inferior Judge. An appeal against his judgment is still competent to the Inner House Judges-and after their judgment another appeal to the House of Lords. In this way, a person who raises an action, say for only £.13, in an inferior court, may be involved in two sets of appeals, the first to the Bill-Chamber and House of Lords, and the second to the Court of Session and House of Lords, and an expense incurred of £.100 in the Bill-Chamber, £.100 in the Court of Session, £.250 in the House of Lords, in all £.450 on each side, or on both sides £.900, which, (except the expenses in the House of Lords,) so far as allowed on taxation, the loser may have in the end to pay ! That this statement is not exaggerated, no one versant in the practice will pretend to deny. Nor can it be denied, that the continuance or possibility of such forms and expense in the administration of justice being sanctioned, is a flagrant abuse, and calls loudly for amendment. But this is not all. There are two principal clerks of the bills, whose offices are sinecures, and the appointinent vested in the crown, and two depute clerks and an assistant, who do all the duty. The former Commissioners reported, that the fees of these officers, exacted from the suitors, amount, on an average of three years preceding 1st January 1815, to £.2186, 4s. 11d. per annum. They proposed, by transferring the duties of the clerks of the bills to two of the principal clerks of session, at £.200 each, and two deputes at £.450 each, to reduce the expense of the establishment £.900 per annum. But that Report proceeds on the footing of the Bill-Chamber being continued, and the alterations proposed by it would not sufficiently remove the evil. For it humbly appears to us, that not only the whole expense of the establishment in future may be saved, but that the whole proceedings in the Bill-Chamber, and letters of suspension and advocation, should be altogether abolished as unneces sary. Of course, the present officers would receive compensation from the Exchequer. The remedy is simple and obvious-Instead of appealing to the Court of Session through the circuitous form of the Bill-Chamber, in which the Lord Ordinary, the InnerHouse, and House of Lords, can merely, in the first instance, pass the bill-allow the case to be removed at once into the Court of Session, by a short note or petition, and considered on the merits, first by the Lord Ordinary, and on appeal by the Inner House. It seems doubtful whether any caution should be exacted on presenting such note or petition; at all events, it should only be for future expenses. The depute and assistant clerks might receive this caution, and the bond of caution might form a step of the process, or remain in their custody like a receipt for consigned money till sent to the extractor. But, perhaps, it would be better if the bond of caution were lodged in the Inferior Court. If so, the expense of correspondence as to the sufficiency of cautioners, which is sometimes considerable, would be saved, and the Sheriff-Clerk, from his local knowledge, would be well qualified to judge of the sufficiency of the cautioners offered. Caution being found, the cause, upon a short note, or petition of appeal, as abovementioned, should come before the Lord Ordinary, sitting in the Outer House, in the first instance. If sufficiently prepared before the Inferior Court, by mutual cases or memorials, no farther additions to the pleadings should be permitted; but if those memorials should appear to the Lord Ordinary imperfect, an addition to each, as in the case of an appeal to the House of Lords, might be permitted. The cause should then either be reported to the Inner House, for despatch, or follow the same course as an original action before the Court of Session. This plan is not without some kind of sanction from the analogy in cases of bankruptcy. In these cases, the assistant-clerks receive caution, and act as clerks before the Lord Ordinary sitting in the Bill-Chamber. This sufficiently shews the practicability and simplicity of the proposed plan. It would have this additional recommendation, that the annual fees of upwards of £.2000, exacted from the litigants, would be saved; that about £.100 of expenses on each side of a keenly-litigated case in the Bill-Chamber, and £.250 in the House of Lords, would likewise be prevented; and that the whole procedure in the Bill-Chamber would be no longer necessary. The Lord Ordinary on the bills would be relieved from a heavy load of duty, and might take a share of the general business of the Court of Session, as one of the eight permanent Ordinaries, who would then have sufficient time to call a jury, and preside at the jury trial, where necessary, in any case brought before them. It would also follow that the expensive establishment of a separate Jury Court would be no longer necessary to be defrayed by the public. III. Writs and Special Pleadings. "Let us exert our Scottish wits in maturing the system by special pleading in our ancient court. The science of Scot land in the nineteenth century is surely equal to a task supposed to be performed in England in the thirteenth century. All and sundry will be improved by the effort." Opinion of Mr Forsyth, Advocate. The Report of the Parliamentary Commissioners does not display much knowledge of the existing forms and the course of pleading in the Court of Session. The general view, already noticed, given by one of the Commissioners, in the Appendix No. IV., is very imperfect, and by no means calculated to give those, who are not already acquainted with the Scots practice, an accurate notion of the forms of Scots writs and pleadings. For the due administration of justice in every case, it is necessary, first to ascertain the subject for decision, and then to decide. Each party must state his own case, and the points at issue must be collected from these opposite statements. Thus far the course of every system of judicature is the same. But the practices of different tribunals essentially differ. These preliminary judicial steps are known by the name of WRITS and SPECIAL PLEADINGS. In Scotland, the pursuer of an ac tion generally applies to a country writer, who writes a memorial or letter to the Edinburgh attorney, who prepares the writ or summons, and sends it to the country, to be served on the defender by a Messenger at Arms, qua "Sheriff in that part specially constituted" by the writ. The defender next employs an attorney to prepare defences. He either draws the defence, and gets it revised and signed by Counsel, or writes a memorial to enable Counsel to draw the defence. The action is then enrolled, to be debated viva voce by Counsel before the Lord Ordinary. To enable the Counsel to plead the case at length before the Judge, the Attorney on each side draws a memorial, containing, at full length, statements of the facts, pleas, and arguments, of which a short summary only is given in the summons and defences. Upon hearing this debate, the Lord Ordinary either decides the case in point of law, or, if he think a proof necessary, he orders a condescendence of the facts without argument, which the defender answers, and each of these papers is afterwards exchanged and amended. According to this practice, there may thus be the following writ ten and viva voce pleadings, viz.: 1, Summons. 2, Amendment. 3, Defences. 4, Debate. 5, Condescendence. 6, Answers. 7, Revised Condescendence. 8, Revised Answers; and, 9, Another debate. Finally, the Jury Clerks prepare the issues, which are tried by a Jury. The Counsel and Judges are, in ge neral, little versant with the preliminary writs and special pleadings. Hence they seldom think of improving them. Nor is it the interest of the Attornies to make any sugges tions, or to instruct the Counsel and Judges in this preliminary depart ment. Indeed the Judges are too wise in their own conceit to imagine for a moment that they are ignorant of this branch of professional education, and they are also vain enough to think that they alone are qualified, by knowledge and education, to act On this assumption they enact their as Legislators in this department. rescripts, or Acts of Sederunt, which are so objectionable, and so loudly complained of by every honest prac titioner. But it is no doubt true, and it not unfrequently happens, that actions are rashly brought, and that the summons and defences are prepared with much looseness and want of precision. The Attornies, however, are not altogether to blame for this. They have much difficulty in obtaining accurate information, and the parties often misrepresent the facts to them, which they discover for the first time, from the statement of the opposite party. In England, a suit is usually commenced by a short writ. It directs the Sheriff to summon the defendant to appear on a certain day, to answer to a matter at the instance of the plaintiff. It contains, besides, no special statement, and merely states the general conclusions for payment of a specific sum. The statement on which the action is founded is afterwards filed in the form of a declaration. The answer to this is called a plea, which is either dilatory or peremptory. If the defendant deny the facts in the declaration, it is called a plea in bar of the action. If the facts in the declaration be supposed to be true, but the action be objected to on a plea of law, the defence is called a demurrer to the declaration. The plaintiff, in reply, is then allowed to lodge a joinder in issue. And upon these pleadings issue is joined in fact or in law. But if the plaintiff, instead of joining issue, object to the sufficiency of the demurrer in point of law, he may lodge a replication. In that case, the defendant may duply by a rejoinder, upon which issue in law is usually joined. If, however, before joining issue, there should be any farther altercation necessary, the parties may, until they arrive at an issue, lodge a surrejoinder, rebutter, surrebutter, &c. These special pleadings are prepared, out of Court, not by Attornies, but by special pleaders, without the intervention of orders by a Judge. A rule of Court, corresponding in effect to our avizandum and caption, either obliges a party to lodge his paper, or forecloses him if he improperly delay lodging his pleading. In Scotland, a great deal of the time of the Judges is occupied in issuing orders for the lodging of papers, which is also attended with considerable expense, but which in England is almost unknown. The English system of special pleading, and framing issues of fact and law, have attained great perfection. In Scotland, it is said, that the system of special pleading is several centuries behind that of England. If the English system be the best and cheapest, there appears no good reason why it should not be extended to Scotland, with such improvements as may adapt it to the Scots practice. In Mr Ferguson's pamphlet, which we have perused with much pleasure, he thinks the technical terms and phraseology of English writs and pleadings, and "the very names of the actions, prove that Scotchmen must be in terra cognita whenever they enter any province of the English law. Consequently it is in principle, and in object alone, that these two systems can agree." But we humbly presume to entertain a different opinion. In order to effect an assimilation of the two systems, why should the systems of jurisdiction, forms of proceedings, and technical phraseology, in either country, be an obstacle? Let these be abolished on both sides of the Tweed, and a general assimilation of the jurisdictions, forms of proceedings, and principles of law, introduced. Let names be given to the pleadings which will be equally understood in either country. For instance, the first step is the writ, to bring the party into Court. Let this in every case be called a summons, and let all the different kinds of writs in England, by whatever name known, for merely bringing a party into Court, be abolished. 2. The party being in Court, the next step is a declaration. This term might be adopted in both countries. 3. The third step is the defence, answer, or plea. The word answer would perhaps be the most simple to adopt. 4. The following step is the demurrer, joinder, replication or reply. This pleading should perhaps be called amendment to declaration; and the surrejoinder, rebutter, or duply, might be called the "amendment to the answer," &c. In this way, unnecessary and barbarous terms would give place to more simple and obvious terms, without any violation of the principles of pleadings in England or in Scotland; and an assimilation or |