the facts averred is not permitted, but, without infringing on that rule, much may be done by judicious arrangement, by the full statement of material facts, the less elaborate statement of less material facts, the suppression of irrelevant matter, and care and discrimination in the selection of words and phrases. The second object to be kept in view, is the laying a sound and sufficiently broad foundation for the proof which is to follow-stating the whole facts requiring to be established, but at the same time abstaining from inserting any useless detail; stating, in short, the facts themselves, not the evidence by which they are to be proved. The third and last object to be kept in view, is the framing the statements in such a way as to force explicit admissions or denials from the opposite party. The record having been closed, the cause is enrolled for debate before the Sheriff-Substitute. This debate generally results in a final decision, or in the allowance of a proof to one or other, or both of the parties, of the averments which they have put upon record. At this stage, or even earlier when practicable, it is the duty of the procurator, either personally or through a properly qualified clerk, to precognosce the witnesses whom he proposes to adduce, and also in many cases the witnesses who, he conceives, are likely to be examined by the opposite party. In precognoscing either class of witnesses, beware of adopting the ostrich-like course of ascertaining and noting down only what they can say in favour of your client's case. It is important in all cases to know the bias of the witness, his personal character both as regards honesty and as regards firmness and nerve, the extent of his intelligence, his temper, and even his mode of expressing himself. Information on these points you will find in all cases useful, in many invaluable. It will assist you in framing your questions in such a way as to elicit the evidence desired, and enable you to avoid many shoals on which you might make shipwreck of your case. It is, of course, impossible to furnish you with a set of definite rules for your guidance in the examination and cross-examination of witnesses. Proficiency in that art can only be attained by practice. Always, however, keep before you the leading object you have in view. Never put a question at random. In examining a witness in chief, your object is to prove your own case, or to traverse that of your opponent. You will therefore put your questions as clearly and briefly as possible, taking care to frame them so as to be easily intelligible to the witness, and to prevent his getting confused or losing his presence of mind. The object of cross-examination is twofold:1. To discredit the evidence of your opponent's witness; to show that he is under the influence of prejudice, that his statements are contradictory, that his means of information were insufficient, that his memory is defective, or that for other reasons his testimony is not to be relied on. 2. To draw from your opponent's witness evidence of facts calculated directly to support your own, or to negative your opponent's case. Where you have reason to believe that an adverse witness is honest, and where his statement is clear and consistent, it is better to waive the right of cross-examination, for cross-examination in such a case, in place of weakening the evidence, generally strengthens and confirms it. Though you are never to put a question in cross-examination without some definite object, it by no means follows that you are to put none but material and pertinent questions. In dealing with a dishonest witness it is often necessary to put a considerable number of trifling or unimportant questions, in order to throw him off his guard, before putting some question on the answer to which may depend the credence to be given to his testimony. When the cross-examination has closed, the party adducing the witness has the right of re-examining him, so as to reconcile, if possible, any discrepancies which may exist betwixt his cross-examination and examination in chief, and clear away so far as may be any suspicion which the cross-examination may have thrown on the credibility of his testimony. The proof being Court Act. Still, however, in labouring to be brief, in compliance with the injunctions of the statute, you must take care to omit nothing that is really essential. The summons must contain all that is necessary to make it relevant, though it should contain nothing more. Remember that an irrelevant summons cannot be amended by a relevant condescendence. On or before the sixth day from the date of the service of the summons the defender, if he means to defend the action, enters appearance by lodging with the clerk of Court what is called a notice of appearance-a short statutory form, sel by himself or his procurator. On this being done the cause is called in Court on the next Court day, and it is provided by the Sheriff Court Act that the Sheriff shall then "hear the parties in explanation of the grounds of action and the nature of the defence to be stated thereto, and if satisfied that no further written pleadings are necessary, he shall cause a minute in the form of schedule (D) annexed to this Act to be written on the summons, setting forth concisely the ground of defeae, which minute shall be subscribed by the parties or their procurators, and the Sheriff shall thereupon close the record," &c. I have quoted these words because they alar to throw upon the Sheriff the duty of hearing ares fully at this stage of the case, and dictating the ters of the minute of defence which, it must be observed, is not in theory at least a pleading for the defenr, but a minute of the Court-in fact, the Judge's stract or abridgement of the defender's explanation of the grounds of his defence. In practice, however, the tes of defence are, in the Sheriff Court of this y, prepared by the defender and submitted to the fcurator for the pursuer and the Sheriff, and on being ved by them, are adopted and signed as the minutes art. The terms of the provision which we have ed from the statute sufficiently show what the ne of defence should be-an abstract or concise stament of the grounds of defence, corresponding to statement of the grounds of action, as stated in the . It should disclose distinctly what the defence but nothing more. It has been found in practice this short form of record is suitable for, and can be y employed only in cases of a comparatively simple acter-such as actions on open accounts where the face is payment, prescription, or overcharge; actions where the defence is payment, no value, or foractions of aliment for illegitimate children, where -defence is a denial of the paternity, and the like. In a of a more complicated character, and particularly tions which are met by a separate case, or confession dance, it has been found that the most satisfac7 and, in the end, the cheapest and most expeditious se is to make up a full record by condescendence and The Sheriff Court Act of 1853 provides that Sheriff shall be satisfied that the record cannot perly be made up without condescendence and de4. he shall order that to be done. The condeweace and defences, as you are all doubtless aware, atten pleadings in which the pursuer and defen*t forth, in an articulate form, the averments in of fact, and pleas in law, on which they respectively and in which each side meets, by admissions or , the averments made by the other. The rules for ag these papers, so far as regularity of form is conyou will find clearly and fully explained in Mr ashan's book on Sheriff Court practice, Mr Sheriff ay's edition of which I would earnestly recommend r careful perusal and study. As to the matter of pleadings you should ever keep before you in framem the three great ends which you have, or ought save, in view. The first is, to lay before the Court, a distinct and intelligible form the whole averments in of fact on which you put your case, and to put your an of the facts in as plausible a form and in as farable a light as veracity will permit. Argument on closed, the cause is ripe for debate on the merits and final decision; and having brought our imaginary action to this stage, my task is ended. Before closing, however, there are two or three suggestions which I would desire to make for the consideration of the senior members of the Society and the profession at large, with a view to the further improvement and reform of the procedure in the Sheriff Courts. (1) As to the examination of witnesses. All proofs are, I believe, from the deficiency of court-house accommodation, at present conducted in the chambers of the Sheriffs. Now, it has long appeared to me to be of very great importance that the examination of the witnesses should take place publicly in open Court. With many witnesses the mere physical circumstances under which they are examined are of no consequence; they are too honest to depart from truth, or too depraved to be influenced by any considerations but those of interest or passion. But I feel assured that the great majority of witnesses are influenced more or less by the formality and solemnity of procedure, that many a witness who would not hesitate to prevaricate, or even to lie, when comfortably seated in the Sheriff's Chambers, would hesitate to do so when standing in a witness-box in a public hall. (2) When the record is closed, and before a proof is allowed, a diligence should in all cases be granted to both parties to recover all documents on which they respectively mean to found. This would in most cases tend to abbreviate materially the subsequent procedure, and in many cases save the necessity of proof altogether. (3) It is worthy of consideration whether some arrangement could not be made for the improvement of the appellate jurisdiction of the Sheriff. An appeal from one single judge to another is not satisfactory in the event of a reversal. It is certainly infinitely better than abolishing the office of Sheriff altogether, as some have proposed. But may not some means be found, such as were suggested by a member of our Faculty at the meeting of the Social Science Association held here a year or two ago, of instituting a Court of Appeal, consisting of the Sheriff as president, and two or more of his Substitutes sitting along with him. The only objection which I have heard stated to this scheme was stated by a member of the Faculty of Advocates, who objected that however suitable for Glasgow, yet Glasgow was not Scotland, and that the scheme could not be carried out in other counties where there was only one Sheriff and one Sheriff-Substitute. This objection seems perfectly trivial, as the necessary Court could be obtained by grouping together several of the smaller counties, so as to constitute one Appeal Court for two or three counties. That this is not impracticable, we have sufficient evidence in the existence of the Registration Appeal Courts. ADVOCATIONS AND APPEALS, 1861-2. IN the last published volume of the Scottish Jurist (Vol. xxxiv.) for the session 1861-62, there are reported seventeen advocations from Sheriff Courts. Of these judgments given by Substitutes, adhered to by Sheriffs, were affirmed in seven cases, and in four cases there were reversals; in four cases, where the judgments of Substitutes were reversed by Sheriffs, the Court returned to those of the Substitutes; in one case, where the advocation was direct from the judgment of the Substitute, it was affirmed; and in one case the judgment of the Substitute was reversed by the Sheriff, returned to by the Lord Ordinary, and reversed by the Court. In the same volume there are six cases reported, as decided in the House of Lords on appeal, on the merits, in which the judgment of the Court of Session was affirmed in two, and reversed in four cases. Reviews. TREATISE ON THE LAW OF SCOTLAND ON THE SUBJECT OF TEINDS OR TITHES. BY WILLIAM BUCHANAN, He Esq., Advocate, Solicitor of Tithes in Scotland, and also her Majesty's Advocate and Solicitor in the Cour of Teinds. Edinburgh: Bell & Bradfute. WE have heard a learned professor declare from his chai that he always looked forward to that part of his cours which treated of Teinds with the strongest aversion, wen through it with apathy bordering on disgust, and was relieved and delighted when he had finished. That w opine is not an incorrect description of the varying feel ings which most lawyers undergo when their attentice has for any time been directed in the course of practic to a question in the law of Teinds, although every on may not be so candid as the professor. It would be difficult, were this the place, to offer a plausib explanation for this singular feeling towards this pa ticular branch of law. The name of Selden is i dissolubly associated with the subject of Teinds; b who reads him? a great many less, we dare say, th those who speak of his work and praise it. more for the church antiquary, however, than lawyer. Forbes is better known in Scotland and a proaches nearer to a work of practical utility; but even him the church antiquary predominates too much. John Connell was procurator to the Church, and avo edly his book was a minister's book in origin, and useful in its day. But two editions in fifty years o not say much either for the branch of law to which relates, or the extent of the practice in that branch. Buchanan's book now before us professes to be a pract book for lawyers, with just so much of church history to make his subject intelligible. In a short introd tory chapter, which might be made shorter with adv tage, he gives a resumé of the history of tithes in S land to the latest enactments on the subject. He t proceeds to treat of the nature and distinction of Tei of tacks, of valuations and sales, augmentations, loc ties, stipend, warandice, and prescripion, and a chapte jurisdiction, and the forms of action and proceeding the Teind Court. An appendix of documents conne with the notable submissions to Charles I. concludes work. The rolls of the Teind Court for the last years show a great increase of business, chiefly in a mentations of stipend, and the need for a brief prac work on Teinds must have been felt. We think Buchanan has supplied this want; and titulars, m ters, and lawyers, will find every practical point bro up and discussed, with the authorities and deci cited-these last being brought down to the latest We can recommend the work therefore to all whose go bad fortune may bring them before the Lords Com sioners for the Plantation of Kirks, and valuation of Te STYLES OF DEEDS AND INSTRUMENTS IN ACCORDA WITH THE TITLES TO LAND ACTS, HERITA SECURITIES ACTS, AND THE REGISTRATIONS LEASES; with Notes on the Completion of Titles, an Appendix of Statutes. By JOHN HENDRY, Edinburgh: Bell & Bradfute. Now that we have attained, as many think, the last 1 of simplification and improvement in our land rights well that we should have in one view, and in a volur a moderate size, all the Acts since 1847 relating t Titles to Land. We have not had before all Statutes brought together, and the want of such a vo as Mr Hendry's must have been felt by conveyancers addition to a collection of Forms, the conformity of to the models appended to the various Acts, may once tested by turning to the Appendix, Mr H has added Notes on the Completion of Titles in 1 situations where notes will be found to be exceed useful and suggestive. Mr Hendry's volume, ther combines what is usually sought for in a style book, much of the substance of Mr Bell's volume on Con ing Titles, and this, we think, is saying enough to mend it to the profession. THE law regarding Queen's Evidence in Scotland is not so well defined in many particulars as is desirable, but we shall endeavour to lay before our readers what appear to be the main results of the somewhat lax dicta et scripta upon the subject. Doubtless the boose views, sometimes apparently adopted regarding the subject by Scottish lawyers, are attributable to their considering primarily how the admissibility of the excius criminis should be maintained consistently with the objections of interest and infamy urged by the panel. Now that these objections have been rendered of no avail to the exclusion of any witness, the doctrine of Queen's Evidence is relieved of many tical difficulties which formerly encumbered it, dis left to depend upon its ultimate principles. In pursuance of our subject, we note (1), That the wvidence of a socius criminis is procured upon a comact between the officers of the Crown and him. A eri criminis is an accomplice or associate in the mission of a crime. He may be either a principal of an accessory in the perpetration of the offence. In cases where he is admitted as Queen's Evidence, the State, in consideration of obtaining the benefit of his formation regarding the crime, by its appointed offiabandons all claim against him for punishment. Ic ether words, the socius criminis consents to waive ais privilege of protecting himself by silence, upon the assurance that the community will protect him from the penal consequences of his disclosures. That Fach a bargain is made-whether in express terms or every case in which a socius criminis is adbased as a witness, is implied in the language of the at recent authorities (Dickson, 1694-5; Bell's Dict. **King's Evidence"); but it is nowhere more disly shown than in the suspension by the murderer of the criminal proceedings instituted against by the relatives of one of his victims (Syme, p. The Lord-Advocate, in that case, stated that, ing it of great importance that a conviction Ad be insured, and, still more, that the whole matter should be probed to the bottom, an overture had been made to Hare, by authority of his Lordship, to become a witness--that Hare accepted the proposal, and received an assurance from his Lordship, through the Procurator-Fiscal, that if he would disclose the facts relative to the case of Docherty, and to such other crimes of a similar nature committed by Burke, of which he was cognisant, he should not be brought to trial on account of his accession to any of those crimes. In this leading case there can thus be no doubt that the Lord-Advocate made a distinct bargain with Hare. It is to be observed, indeed, that, in deciding in favour of Hare's immunity, "the Court does not seem to have been moved by the PRIVATE ENGAGEMENT of the LordAdvocate, nor by the disclosures made out of their presence in consideration of that engagement by Hare" (Bell's Notes, p. 261), but still the instructive argument of the suspender's counsel (M'Neil) is based throughout on the principle of a compact, and the Judges all refer to that as the ground of their decision. "What is the course," asked Lord Pitmilly, "invariably pursued? The public prosecutor, who is the dominus letis, and alone has a right, asks the socius, whom he thinks it necessary to select as a witness, if he will give evidence under an assurance of indemnity. When he is produced as a witness the Court explains to him the situation in which he stands. They thus become witnesses to the compact which has been made, and cannot sanction any future criminal proceedings against him as to the crimes which he has revealed on the faith of that promise." In truth, upon due consideration of the relative rights of the State and the socius, it will at once be seen that the evidence of the latter can be procured by no other means than a compact for his security. As regards the form of this compact, the opinion of Lord Pitmilly, taken in conjunction with Bell's remark above quoted, indicates that it is NOT sufficiently constituted by a merely extra-judicial arrange B ment with the officers of the Crown, but that it (3). The compact between the accomplice and th requires for its validity to all intents, the production by the Crown in open Court of the quâ socius criminis witness, such production appears at least to be necessary, in order to protect the accomplice against private prosecution (Bell's Notes, 261). The compact to which we have referred is thus "of the nature of a judicial contract, by which the prosecutor, on the one hand, is bound not to prosecute, and the witness, on the other hand, to answer" (Per Lord Mackenzie in Hare's Cuse, supra). Crown may be inferred from circumstances-rebu ipsis et factis. This proposition rests upon the genera legal principle which forms the basis of all quas contracts-that where res non sunt integra, when pa ties act in a manner attributable only to a speci understanding between them, the Court will inf the existence of the compact attested by their act When the Crown adduces a witness who, accordi to his own statements, is implicated in the cri remitted to the Assize, the witness clearly reli quishes the valuable privilege of silence in regard self-criminating statements. It is therefore jus inferred that he must have been promised an equi It follows plainly from the principles upon which immunity is secured to the socius criminis, that (2) the compact under which he appears can only be entered into by the proper officers of State. Very properly, the committing magistrate and inferior lent, which can be nothing less than his personal criminal officers generally have not the power of mak-munity for the particular crime to which he testi ing any such bargain with an accomplice. The This is simply an application of the principle n power of doing so is reserved strictly to the public præsumitur donare. The Crown, too, is bound prosecutor as acting on behalf of the State. One of produce the best evidence in its power, and there the rules issued in 1834, for the guidance of Procura- it may fairly be presumed to have rendered suc tors-Fiscal in the preparation of cases for the Circuit witness as free from objection as it can, by remov Courts, is-" When a delinquent is disposed to con- the peculiarly strong interest which he has, if un fess, apparently in expectation of being admitted as doned, to intensify the guilt of his associate. T King's Evidence, it must be kept in view that neither again, is no more than an application of the ma the Magistrate nor the Procurator-Fiscal has autho- of common law, quod fieri debet facilè præsum rity to give assurances which may fetter the Crown That such is a correct view of the circumsta Counsel in afterwards determining whether it be under which a compact for immunity will be proper to bring such person to trial." A private sumed, is fully proved by the case of Hare, to w prosecutor has no such power, and an accomplice we have already. so frequently referred. It is n called in exculpation, even in a prosecution at the sary to bear distinctly in mind the state of instance of the Crown, has no protection in con- which infers the existence of a compact with sideration of the disclosures which he may make. accomplice, because the language of some of On the other hand, a socius criminis called for the authorities is by no means explicit on the sul panel can refuse to give any information which may Thus the Solicitor-General is reported as having incriminate himself (Bell's Notes, p. 261; Alison Pract. in the case of Dreghorn, 16th February, 455; Dickson, 1695). The power thus vested ex- (Burnet, App. 21), "that a man examined as a clusively in the public prosecutors is one which ness cannot be tried for an offence as to whi obviously requires to be jealously guarded from abuse gives evidence." If this means that, by m on the part of these functionaries. In England, the being examined as a witness, a man is protected immunity of an accomplice is founded, as we have prosecution for any crime referred to in his de seen, upon a pardon actually obtained, or, at least, tion, the maxim nemo tenetur jurare in suam claimable from the Crown, in the exercise of its pre- tudinem must be deleted from our criminal co rogative of mercy. With us, the public prosecutor entirely useless. Again, Sheriff Barclay (Dig can virtually exercise this prerogative in regard to "King's Evidence") says, "The prosecutor, by på socii criminis, without the intervention of the Crown. the party into the witness-box, liberates him Hare's immunity, for example, did not rest on a prosecution, without ANY farther act or declarat royal pardon obtained or hoped for, but simply on All such passages we must interpret as me the judicial contract between the Lord-Advocate and simply, that by the examination of a party, w him. admittedly a socius criminis according to the state made by himself in the witness-box, the Crown, e discharges all right to prosecute him for the pa lar crime on which the accused is indicted. case of Dreghorn above referred to is in tru itself sufficient authority for this proposition. scuffle among some soldiers a man had been and Dreghorn was charged with his murder. Now, a fundamental principle of our constitution is, that all powers entrusted to public officers shall be subject to appropriate checks. That the extra-judicial compact of the public prosecutor with a socius criminis should require some judicial recognition following upon it, in order to its full validity, is surely the least check consistent with just constitutional principles. 1 Solicitor-General proposed to adduce as King's Evi- the Parliament House, where our Sheriffs Substitute boards find their fee-book showing £1,200 at the end of chiefly come from. How many of those who pace these the year? We fear not many. We repeat the topographical position of Scotland, its irregularly distributed population, and the great difference in the general amount of business and wealth, make any comparison with England a not very trustworthy basis on which to found a legislative change. The second request of the Memorial we think a just one. We never heard any good reason, or any reason at all, why Sheriffs or Sheriffs-Substitute who are otherwise qualified, should never have been promoted-say Substitutes to Sheriffships, or both to the Supreme Bench. But it so happens that when a man has accepted the office of a Sheriff-Substitute, he is shelved for life. One and one only, is noted as having been promoted from a Substitute to be a Sheriff. That we believe happened in a northern Sheriffdom; but then the lucky man was closely allied to the Lord-Advocate, and, above all, held certain views on Church politics, which are understood to be potential in the Parliament House. The third point in the Memorial is one which is of much greater importance to the public and the profession than any of the other two. To take the appoint ment of the Substitute out of the hands of the Sheriffs means a great deal more than meets the eye. It would probably please the aesthetic taste of some if they held their appointments from the Crown-and we would have no objections to the change if that were all. But no one can doubt that if the Substituteships were Crown appointments-though the security and dignity of the office would thereby not be one whit changed the next step might be-some think would be-an effort to do away with the Sheriffs. We believe the public are not quite prepared for that change; and we are pretty certain that, speaking for the profession, they are still less prepared for it. We need not tell our readers that the abolition of the office of Sheriff implies the taking away of the right of appeal. We are not here going to enter into the argument for the retention of that essential right. Every practitioner in the Sheriff Courts knows its value, and he needs no argument in its favour; and we say it with the deepest respect for the learning and ability of our local Judges, that it is the corner-stone of our Sheriff Courts; and the influence which it exercises, and the satisfaction which litigants find in judgments pronounced, arises from this, that whether exercised or not, they know they have the right of appeal to the judgment and opinion of another Judge. SHERIFFS-SUBSTITUTE MEMORIAL. Isimportant document, which we print in full in the umber, has three objects in view-(1) an in> of salary; (2) promotion in the profession, which ay mean promotion to Sheriffships, or a seat in the Court; and (3) taking the appointment of Sebstitute from the Sheriffs and vesting it in Crown; in other words, placing it in the hands of Lari-Advocate for the time. In a certain sense e are objects personal to the Memorialists, but if led, there can be no doubt that the status of our and the character of our local Courts, would be y changed. The Memorial therefore raises most ant public questions upon which it is the duty of le prossion and the public to form and to express an We need feel no delicacy in offering one or servations on the first object of the Memorialists, dament has been printed and circulated in ty in Scotland, and sent to every Member Parlament, and was lately discussed by the Glasgow kay, to whom it was sent. Many will be taken by by this proposal of the Sheriffs-Substitute, bewas imagined that the Act of 1853 had settled cn of salary for a considerable time. But it again raised, mainly grounded as it appears to the disparity between the salaries of the English 3 Court Judges and the Scottish Sheriffs. We admit that the comparison is much to the point. #l surely be preposterous to pay a Judge, say in Hebrides, who passes through his hands proa dozen processes in a year, with even the mini- MEMORIAL FOR THE SHERIFFS-SUBSTITUTE Mary of an English County Court Judge; while that it is not just that a Sheriff-Substitute in For Glasgow should only receive their present The principle which the Act of 1853 sancmale a precedent is, we think, the only one aakely to meet the approval of Parliament and try, and that is, that a Judge should be paid i proportion to the work he performs. The however, makes no distinction, and would desire that all our Sheriffs-Substitute should be e-at least that none should have less than er annum. Besides the test of work, look into We understand it is contemplated to to have a measure brought into Parliament next session, embodying the suggestions of the Memorial, and steps have been taken to interest the Government and both Houses of Parliament in the measure. We hope, however, time will be given to the country to consider and discuss the measure, and that no undue haste will be shown in carrying it through in the coming session. OF SCOTLAND. THE Sheriffs-Substitute of Scotland desire respectfully to bring under the notice of Her Majesty's Government the following facts: First, The Sheriffs-Substitute are the resident Judges Ordinary of the Scottish Counties. They are generally members of the Bar, and have, in every instance, received a thorough legal education. They are invested with very extensive jurisdiction, both Civil and Criminal. Their jurisdiction in all questions of Debt, and in all questions relating to personal or moveable estate, is unlimited. They have a junction. They are judges in Insolvency and Bankruptcy, and not large Equity jurisdiction, including all questions of Interdict or Inonly award Sequestration, but dispose of all questions competent to a Court of Bankruptcy. They adjudicate in questions of filiation, in |