with feelings of utter amazement, that such a form of statement could be tolerated at the present day by any enlightened legal system. It was characterized by considerable ability in the way of argument and rhetorical innuendo, and one could scarcely read it with any attention without seeing what it was about; but I would defy any one who had not some other knowledge of the case to understand from it what was the material contention between the parties. Now this may be pamphleteering, but it is not pleading, and that there should be found among the legal profession in Scotland any single individual who would be disinclined to put a stop to such mischievous procedure, is to me utterly incredible. The Bill, however, although it takes the right ground on this vitally important subject, does not, in my humble judgment, go far enough; and, if I may be allowed the remark, there appears to me to be a certain degree of timidity and hesitation about these, its pleading clauses, which are merely permissive. A material averment should not only exclude matter of law, matter of evidence, or argumentative and explanatory matter, but it should be made issuably, that is to say, it should be expressed in an issuable form, so that it may be admitted or denied in its own terms; otherwise it falls short of Sir Matthew Hale's great canon of pleading, that "a thing should be so pleaded that it may be tried." But this precision also requires at the hands of the defender a corresponding clearness; and I would venture to recommend that instead of being content with calling on him to deny, the form of denial should be prescribed in the Bill, otherwise we may still have "denied with reference to," "denied as stated" and the other modes of expression allowed under the existing system, by which the issue is not only rendered obscure, but, so far as the pleadings are concerned, impossible. As a general rule, a defender should admit or traverse the case against him in his adversaries' words.

In regard to these and other particulars on this subject, I think the Bill might be considerably improved. It is, however, distinguished by some excellent regulations, and I would particularly notice two, as worthy of especial approbation; first, its extension of the principle of the English demurrer (the Scotch objection to the relevancy) to all the pleadings, instead of being confined as at present to the summons. The second point to which I have referred is a change as sound as it is radical, for, in principle, it really goes to uproot the whole existing system. I allude to the proposed abolition of what are called "pleas in law," a contrivance which I have heard condemned by many experienced lawyers-the late Professor George Joseph Bell among others, -and which, for myself, I confess I have always regarded as a clumsy and inartificial expedient. Now, what are pleas in law?-neither more nor less than the interested opinions of the counsel for the parties as to what is the law, or, rather, what ought to be the law, to be applied to the case, and couched in certain terse legal propositions, which are inserted at the end of the pleading, and, beyond these pleas in law, parties are not allowed to maintain any contentious argument, for we are solemnly told, in books of practice, that these said pleas in law

constitute the "sole ground of action and defence!" A plea in England or Ireland is a fact, or the allegation of a fact, but such a plea as we are considering is an abstract, and too often a very questionable, legal proposition. Does it not stand to reason that all such matter should be reserved, either for the trial or for the subsequent legal argument before the Court, nor should counsel be controlled or limited in the way pointed out. The argument should be free, and suitors should not be allowed in this way to anticipate the law for themselves, but are entitled to have it applied in all its amplitude, and without any reserve or restriction whatever. Most righteously, therefore, does this Bill propose to abolish these pleas in law, and, for doing that alone, it is entitled to the warm support and commendation of the working profession-judges as well as practitioners. Generally, on this important matter of pleading, I think the Bill affords promise of a good measure, and certainly is capable of being made a most valuable reform. It gives the true character to the pleading. Hitherto, what is known as the “record” has been understood to contain materials for the most discursive speculation, and even for the judgment of the Court, whereas the object and purpose of pleading is the discovery of the controversy of the matter in debate, with a view to the trial, whether that trial be of the fact or the law.

For those who may be troubled with the fear that, by the adoption of a more technical pleading in the Court of Session, unnecessary difficulties and embarrassments may be experienced in legal business, I would strongly recommend the Report to which I have referred on the Courts of Law and Equity in England and Ireland, and, in particular, the careful study of the statement in the Appendix, p. 97, by Mr. Gerald Fitzgibbon, one of the Masters of the Court of Chancery in Ireland. This paper is one of the most able, lucid, and instructive legal documents I think I ever read.

There is one other remark on this subject of pleading which occurs to me, of importance, and it is that all the pleadings, from the condescendence to the issue, should be invariably and exclusively prepared by counsel; who, if they perform their duty in this respect, as I doubt not they will, ably and well, will strengthen the hands of the Court in administering the new practice, and, in particular, render the examination of the record by the Lord Ordinary, as provided by the Bill, comparatively easy. It may be questioned, indeed, whether there should be such a revision of the pleadings by the judge. It would, perhaps, be better to leave the whole responsibility to the counsel, who would be found to derive benefit from the intellectual and juridical discipline which would thus be imparted to the discharge of their duties.

I have now detained you so long with this part of the Bill, that I fear to trouble you with the observations which had occurred to me on the other class of actions, and which are to be commenced by bill instead of by summons. The Scotch technical phraseology used on the subject cannot conceal, and, probably, is not intended to conceal, the fact that the changes proposed to be made by this

part of the Bill involve the adoption of a procedure as nearly as possible the same as that which prevails in the Court of Chancery in England, although it does not appear that merely equitable interests and considerations are intended to be dealt with by the regulation proposed. It is simply that the procedure of the Court of Chancery appears to have recommended itself as convenient for the class of actions I have mentioned; and, in one word, the old summons of declarator will be simply turned into a bill or petition, with the conclusions stated in the prayer. Assuming always that it is expedient to make a distinction in the procedure between the two classes of actions, I cannot say that I have seen anything in this part of the Government measure to object to; and undoubtedly, if there is to be such a change, no system of practice could be pointed out having stronger claims to attention than the existing procedure of the English Court of Chancery. That system no doubt has its defects, and I should hope that the bill of complaint to be prepared under this measure would be a better, clearer, and more satisfactory document than the bill in chancery is often known to be. It may, however, be of the less consequence to prepare the bill in England with a greater regard to succinctness than usually characterizes it, seeing that its statements are afterwards turned into interrogatories, by which the defendant, in the way of defence to the suit, is required to answer upon oath. This is a proceeding which, whatever may be said for or against it in other respects, certainly has the effect of searching the conscience, and producing a complete and unreserved disclosure of the truth. There are no regulations exactly corresponding to this procedure in the Bill before us; but the rules prescribed for the preparation of the defendant's answer appear to be well considered, and, if rigidly forced by the Court, would undoubtedly lead to a great improvement on the present practice. I would suggest, however, that a power should be reserved to the Court to order, in its discretion, the parties, and not merely the defendant, to swear to the truth of their statements. I may here add, that as in other points of assimilation referred to, the Lord Advocate's Bill is favoured by the Report of the English and Irish Commissioners before alluded to. It appears from that Report that not only the procedure at law, as already explained, but also the practice in chancery, considerably differs from the same practice in England, but that, after having fully considered the whole matter, the Commissioners unanimously-Irish as well as English-recommend the adoption in Ireland of the English plan.

In conclusion, let me express the hope that, whatever form this Government Bill may have assumed, when it becomes law, its provisions will, in letter and spirit, be strictly and rigidly worked out by the judges, and that, ere long, their enlightened decisions may reduce its enactments into a system of procedure, which, in the words of the great English charter, will secure to the Scottish people the pure and speedy administration of right and justice.

167

A Proposal to abolish Small Debt Actions by Retailers against Consumers for the Price of Necessaries. By FREDERICK HALLARD, Advocate, one of the Sheriff Substitutes of Edinburghshire.

Mr proposal has not the merit, or demerit, of novelty. For a much larger application of the same principle, I have the authority of at least one eminent economist. For its practical application on a limited scale I have the authority of actual legislation. Doubtless there are many to whom the same evil has suggested the same or a similar remedy.

Without farther preface my proposal is this:

Let a statute be passed declaring that for the price of certain articles, to be enumerated in a schedule, no action shall lie. The articles are none other than the necessaries of life; the list is limited to the categories of food, drink, clothing, lighting, cleansing and fuel, with the addition perhaps of medicines and tobacco. Restricted as such a statute would be by the detailed specification in the schedule, it must receive two more limits on its operation in order that the remedy may not be broader than the evil it is intended to remove. It is not to apply when the price of any single furnishing exceeds a certain sum, say twenty shillings, the sum mentioned in the Tippling Act. It is not intended to apply to transactions between dealer and dealer, but only to transactions between retailer and consumer.

My occasional experience as a small-debt judge has suggested to me the propriety of this change. Often, especially in the mining district of Dalkeith, I have had occasion to observe the dangerous facility with which working people obtain credit from those who live by the supply of their wants. Day after day the miner, or the miner's wife, goes to the provision shop and obtains what is needed for the household on the simple and easy terms of putting down certain entries in a book. By degrees the debt swells from a few shillings to a few pounds; I have seen it as high as £8 or £10. An action is brought, the debt is just, the enforcement of it is probably ruin to that small household. I do not wish to exaggerate the misery so produced, nor to give myself as a witness in matters beyond my personal observation. Often have I seen the wretched looks of the defendant in such a prosecution; but after decree is pronounced the parties go out of my sight. I suppose that the humble dwelling is cleared of its poor furniture, and the world has, in a sense, to be begun anew by that ruined family.

Of such cases there are very few in which the heads of the family are entitled to much sympathy, however much you may pity the helpless ones who are dependent on their labour and good conduct. Often there has been extravagance and waste; sometimes there has been utter recklessness, and no honest intention of ever paying the just debt which has been allowed to accumulate. The money which should have paid it as it arose may have been wasted on baneful

luxuries, all the more tempting that their price was in hand. Had it been necessary to spend the money well, the temptation to spend it ill would to that extent have been lessened, the debt incurred for household necessaries would not have become a burden, the constable would have been kept from the door.

As the shopkeeper relies on his legal remedies, so the customer sometimes relies on that reliance to get the goods without paying for them. When a long account has been incurred, when many promises to pay have been made and broken, a summons is at last taken out. Most commonly the defender in a case of this sort does not appear, but sometimes he does. He disputes the debt, objects to various items, states a trumpery defence of which the vanity is not at that moment legally clear, and with all the eloquence of his distressed circumstances speaking loudly for him, prays for inquiry which involves delay. Before next court day he has shifted his quarters and is opening a new account, with the same probable result, in a different place.

Many are the losses which fall upon a shopkeeper who is "honoured" with this kind of "patronage." But there is in political economy, a principle which brings him compensation. Except on the expectation of a certain return for his capital and labour, no one will invest capital in or bestow labour upon any calling. Profits must be made to cover bad debts. The result is that the poor working man who honestly pays his way, pays also for the dishonesty of his neighbours. Thus it often happens that poor people pay for the necessaries of life a higher price, quality being considered, than is paid by the classes who are above them in the social scale.

On the authority, and in the words of Mr. MacCulloch, I state an additional evil of the existing system.

"One of the worst consequences," he says, "of the present system is the sort of thraldom in which it keeps thousands of labourers and other individuals whom the improper facilities for obtaining credit originally led into debt. Such persons dare not leave the shops to which they owe accounts; and they dare neither object to the quality of the goods offered to them nor to the prices charged. Dr. Johnson has truly observed that 'he that owes more than he can pay, is often obliged to bribe his creditor to patience by increasing his debt. Worse and worse commodities at a higher and higher price are forced upon him; he is impoverished by compulsive traffic; and at last overwhelmed in the common receptacles of misery by debts, which without his own consent were accumulated on his head.' By taking away all right of action upon small debts this system of invisible but substantial coercion would be put an end to. The tradesman would take care who got, in the first instance, upon his books; and instead of forcing articles upon his customer would cease to furnish him with any, unless he was found regular in making his payments; while the customer to whom credit was of importance would know that his only chance of obtaining it