that a reversal is probable, as the reviewing judge must form his opinion from the number, not the credibility of the witnesses. Then, the decisions of a well-informed judge being reviewed by a worse informed one, tend to false swearing. This is remarkably shown in actions of filiation, a class of cases by no means rare in some Sheriff Courts. The form of process under the old law allowed the pursuer after" semiplena" to give her oath in supplement, and so end the cause. But now "semiplena" is abolished, and the pursuer is reduced to a common witness, liable to hear her evidence neutralised by that of the defender, who, however strong the proof against him, seldom hesitates to lay perjury to his soul to avoid the liabilities of a putative father.

The legislature, no doubt anticipating such results, enacted that non-resident sheriffs should hold sittings in their respective counties for the trial of causes, but some of them have not leisure for long sittings, and others, to give litigants the benefits of a double judgment, decline on principle to take proofs, and the laborious and unsatisfactory duty devolves on the resideut judge.

Sheriff Watson suggested, as a remedy for these evils, that the judge who tries the cause should finally decide it; or, if an appeal be allowed, that the evidence should be taken down by a short-hand writer, by way of question and answer, from which it would be seen what was true and what was merely suggested.

LEGAL PROCEDURE.

BESIDES the paper by Mr. Robert Stuart, printed at page 157, a Paper under this head, entitled "English and Scotch Pleading and Jury Practice," was read by Mr. John M'Laren, advocate.* The following is a condensation :—

:

Among the chief objects of civil procedure are-first, such an arrangement of the duties of the judge and the jury as to secure the independence of each; secondly, such a system of pleading as gives the parties full notice of the points to be raised at the discussion, without defeating their just rights for mere technical blunders.

In these requisites the procedure of the Court of Session, in jury causes, contrasts unfavourably with that of the English Common Law Courts. Jury trial in Scotland is encumbered with useless and irritating impediments, without accomplishing the object of effecting a separation between the functions of the court and of the jury. Our system is defective in withholding from the judge the power of amending the pleadings, so as to bring the record into conformity with the evidence. While in England the parties may go to a jury at once with their declaration and pleas, reserving all questions of law for after consideration; in Scotland the whole case has first to be argued before the court, and then the trial is limited to certain

This Paper was published at length in the Scotch Journal of Jurisprudence for November, 1863, Vol. VII., No. LXXXIII.

questions stated by the court, and called issues in the cause. Although both judge and jury should be satisfied that the pursuer has a good cause of action, they cannot give him a verdict unless they are in a position to find affirmatively upon the issues previously adjusted.

The real obstacle to the introduction of the English method, lies with our system of pleading, which is inartificial, illogical, and loose. The pleadings are often so diffuse that it is difficult to discover the gist of the case; and not being prepared in a form calculated to raise simple issues of fact, they cannot be laid before a jury because they do not contain in terms the propositions on which the jury is required to find. The practice enjoined by the Judicature Act, of separating what is matter of law from matter of fact, and putting them into different parts of the record, is inconsistent with any rational system. The English method is to state each ground of action or defence in a distinct proposition, in the very terms in which a verdict or judgment is desired. This is never done in our pleading. In an action of damages in the Court of Session, say for real or personal injury, the pursuer would not set forth in his condescendence of pleading, as is done in England, that the defender had at a given time assaulted him, libelled him, robbed him, trespassed on his property, infringed his patent right, or the like, setting out the different acts of aggression' in distinct counts. He would begin with a description of the property or right which the defender had injured. He would then describe the injuries which he had sustained, very much in the manner of newspaper paragraphs on " Accidents and Offences." The condescendence would end with a statement, that "in the circumstances above set forth, the pursuer has sustained and will continue to sustain great loss, injury, and damage; that he has been injured in his person, property, business, character, and reputation; that the defender is accordingly liable in damages, as compensation for the loss the pursuer has sustained, and as a solatium for the injury to his feelings caused by the defender's illegal, unwarrantable, unjustifiable, wrongful, and groundless proceedings;" and a great deal more of this verbiage. Every one of the pursuer's statements must be expressly auswered; that is, must be either admitted or denied by the defender in express terms, and the defender's counter-statements must in like manner be answered by the pursuer. These statements, revised and re-revised, constitute the pleadings upon the matters of fact. In this part of the record, however, there is often no correct legal averment of injury ; the circumstances are detailed, and it is left to the court to draw the necessary inferences of fact and law. The legal grounds of action and defence ought, according to our theory, to be stated in certain propositions called "Pleas in Law," which must be appended to the Condescendence or Statement of Facts. But in practice, these pleas in law are seldom expressed with the precision and directness which we are accustomed to observe in the style of English pleadings.

The next step after the pleadings have been completed, is a discussion before the Lord Ordinary, with a view to the preparation of adjusted issues. The Lord Ordinary, however, has no power of settling issues, unless where the parties agree upon their terms, which they rarely do. The result, in important cases, is an appeal before trial, first to one of the Divisions of the Court, and afterwards (if leave can be obtained) to the House of Lords. The character of the discussion at the settling of issues depends entirely upon the discretion of counsel. It may involve the whole legal merits of the cause, or it may be confined to criticisms upon an adjective. But in no case does it finally determine anything. The whole law of the case may be again discussed upon a Bill of Exceptions after the trial; or the House of Lords, in granting a motion for a new trial, may direct additional issues, and may thus entirely alter the aspect of the case. As to the forms of issues in most frequent use, they are sometimes sufficiently precise to exclude evidence which ought to be admitted, but never so explicit as to supersede the necessity of an exposition of the law by the judge at the trial. Accordingly, it sometimes happens that the question upon which the verdict must depend, is propounded for the first time in the judge's charge. This system is attended with serious disadvantages. Scotland cannot be brought to trial at the sittings immediately following its institution. Great expense is caused by discussions on issues. Opportunity is afforded by debates upon issues of raising discussions upon questions of law, while yet the facts upon which the legal rights of the parties depend have not been ascertained. The tendency of our system of trial upon issues is to reduce all questions to certain empirical formulæ. Forms of issues once fixed, become precedents for cases which are similar, though not identical. In order to bring the question within one of the recognised forms, the finer elementsthe specialties of the case-are sacrificed. The consequence is, that many questions arising upon the evidence, and coming fairly within. the scope of the pleadings, cannot be entertained, being excluded by the terms of the issues.

An action in

But the chief objection to the system is, that it tends to weaken the authority of the judge at the trial, and to confound the distinction between his province and that of the jury. Our system commits to a court of four judges, knowing nothing of the evidence, the determination of the form in which the questions raised by the pleadings are to be laid before the jury. The judges necessarily take a more or less favourable view of a particular side of the case upon their perusal of the pleadings. Something in the pleadings of one of the parties, it may be, strikes the judicial mind as metaphysical, improbable, or unfair. From the forming of an unfavourable opinion to the carrying of it into effect, by refusing an issue upon the obnoxious plea, is but a slight step. Now if actions went to trial upon the pleadings of the parties, uncontrolled by issues, it is probable that in many cases the judge, after hearing the evidence, might alter his opinion; and consequently, that pleas which, when barely stated on

the record, seemed evasive or frivolous, might be found to represent legitimate grounds of action or defence.

Our method of trial is equally wrong in leaving too much to the uninstructed discretion of the jury. Issues have at least the merit of being perfectly intelligible to the jury man. But when simplicity is attained only by ignoring specialties and distinctions which are essential to the determination of the matters in dispute, the advantage is too dearly purchased. Issues are stated to the jury in the form of questions, upon the affirmation or negation of which their verdict depends. In forming an opinion upon the merits, it is the duty of the jury to give effect to the judge's directions in point of law, as well as to the evidence in relation to the matters of fact. Unfortunately, the answers which proceed from the uninstructed intelligence of the juryman may be the very opposite of those which it is his duty to return under the guidance of the judge. In such cases the jury man is perplexed by an apparent conflict of duty between the answer he owes to the issue prepared by the Court, and the question propounded by the judge at the trial. Accordingly, it is not surprising that jurymen should occasionally decide according to their impressions of the evidence, even when these run counter to the judge's express directions in point of law. It is matter of common remark that Scotch juries are more opinionative than English juries, and their verdicts less satisfactory. This, however, is the natural consequence of our mode of trial.

In the Court of Justiciary and the Sheriff's Criminal Court, where a different system of practice prevails, the results of jury trial are much more satisfactory. Criminal cases in Scotland go to the jury upon the indictment,-a document very much more technical in its form and phraseology than the pleadings in a civil action. Not being in a position to trust to their own unaided understanding of the indictment, the jury receive from the lips of the judge the requisite statement of the issues which they are required to try,accompanied, it may be, with illustrations and qualifications which could not be properly introduced into a written issue, but which are not the less essential to a right understanding of the matter in controversy. If the judge is wrong, counsel are at liberty to correct him. If the issues are doubtful, counsel may address the court upon the legal bearings of the case, and ask for a direction in conformity with their views. The absence of all complaint as to the administration of justice in our criminal courts, is a satisfactory proof of the beneficial results that are attainable in Scotland under a system of practice which is identical in principle with the English nisi prius procedure.

At the English Assizes, civil actions of every description have been tried from the earliest times by a jury, on the pleadings of the parties. No inconvenience, but the greatest possible benefit, has been found to result from the power thereby given to the presiding judge. Even at a time when pleading in England was eminently technical, it was never urged as an objection to that system, that

juries could not be made to understand the issues, or that the judges could not be entrusted with the power of explaining them. The familiar procedure of a motion for a new trial has ever furnished an adequate remedy for an erroneous ruling.

That jury trial in civil causes has been less successful with us than it has been in England and Ireland, is a fact generally admitted. It has failed to realise the expectations of its founders, simply because the conditions necessary for its successful administration have been neglected or misunderstood. I have long been of opinion that the way to restore the confidence of the public in jury trial will be found to consist in the adoption of the English jury system as a whole, along with the power of amending records, and other improvements introduced by the English Common Law Procedure Act. As a first step to that result, our articulate condescendences and answers should be replaced by an issuable system of pleading, that is, a system under which the parties will state their pleas in the very words which they desire to have affirmed by a verdict or judgment. In the next place, it is necessary that some single authority-either a judge or one of the Divisions of the Court-should be invested with the power of determining finally, and without appeal, whether a case is or is not to be appropriated to jury trial. If it is so appropriated, the case ought to be sent to a jury at once, without issues, discussions on relevancy, or any other preliminary procedure. The judge might safely be entrusted with the function of informing the jury what the questions are which they are summoned to try.

I trust that the object we have in view, the improvement of civil procedure in our superior courts, may command some share of the attention of professional gentlemen from other parts of the United Kingdom, and that we may have their support in our endeavour to simplify the procedure of the Court of Session. and to establish something like a substantial uniformity of process in the supreme courts of the United Kingdom.

DISCUSSION.

The SOLICITOR-GENERAL for Ireland said, that in that country they had had experience both of the English system of pleading and procedure and of the Scotch, or something very like it. When he was called to the bar the old English system was in full force. In 1853, however, it was abandoned for an entirely new one, apparently based on that of Scotland. It abolished the distinction between declarations and bills, and introduced instead a summons and plaint. This ought to be, as was directed, a succinct articulate statement of the plaintiff's case; but in practice it came to be a voluminous narration of all the grievances he could rake up. The defences were of the same description; they ought and were required to be explicit answers to the plaintiff's statement; but in reality they were nothing more than a rambling and inartificial recriminatory argument. The subsequent procedure was quite as objectionable: the parties might agree upon an issue if they could; but if they could not, then the judge had to adjust one for them, and that with nothing but the written pleadings to guide him. The consequence was that in many cases gross injustice was done, as issues were often directed which were utterly unfit to try the real facts in dispute. The old English system had been abandoned, and the existing one adopted, with the view

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