"In the case of Stevenson v. Hamilton, 7th December 1838 (1 D. p. 200), Lord Gillies and Lord Moncreiff give it as their opinion that the Court of Session as a Court of Equity had power to make a reasonable provision for a married woman, as against a husband and his creditors, out of property to which she succeeded. Perhaps this might have been ultimately established by the decisions. of the Court. But the opportunity occurred for putting the law upon a preciseand distinct footing when the 'Conjugal Rights Act of 1861' was under consideration. It was then thought by some members of the Bar that it would be a right thing to establish as law in Scotland what was known in England as'The wife's equity to a settlement' (see White and Tudor's Leading Cases on Equity, vol. i. pp. 348, 356). An attempt was made to define the grounds upon which such provision should be granted; but it was found to be impossible to specify all the particular cases that might arise, and therefore the Committee of that day abandoned the attempt, and in very general language left everything to the discretion and wisdom of the Court.

"The 16th section confers a great power upon the Court, and the Committee are unanimously of opinion that it ought to be exercised only by a Division of the Court of Session.

"As illustrations of the difficulty of administering equity law under this section, the Committee refer to the following decisions.

"The Statute provides, in section 16, that no claim for 'a provision shall be competent to the wife if before it shall be made by her the husband or his assignee or disponee shall have obtained complete and lawful possession of the property.'

Now, what is complete and lawful possession? Lord Mackenzie, in the case of Miller v. Learmonth, 21st December 1871 (2 Macph. 107), seems to be of opinion that a trustee in a sequestration had got complete and lawful possession simply by the interlocutor declaring the husband to be a bankrupt. Lord' Barcaple, in an unreported case, decided exactly the reverse; and the Second Division, in the case of Somner v. Somner's Trustee, 2d March 1871 (9 Macph. 594), held that a trust-disposition for behoof of creditors (intimated) did not operate as complete and lawful possession.

"Again, opinions were given in the above case of Somner v. Somner's Trustee, to the effect that the Court, in settling the amount of the reasonable provision for the wife, could not take into consideration the fact that she was burdened, with the children. But in the subsequent case of Taylor v. Taylor, 28th. October 1872 (10 Macph. p. 23), the same Court, upon being asked to rehear the point, did so, and came to a different conclusion.

"It is quite evident that until the Supreme Court shall have interpreted this section of the Act of 1861, and fixed rules for the settlement of questions as between wives and their husbands' creditors, it would be unwise to confer any jurisdiction under this section on inferior courts."

We do not approve of the proposed extension of the Sheriffs" jurisdiction to cases under the 16th section of the Act of 1861. But we do not quite see the force of the argument against it stated in the Faculty's Report. The argument is a dilatory plea. If, as seems to be assumed, it is proper that the Sheriffs' jurisdiction in such cases should be extended at some time, the sooner it is done the better. If this extension is an improvement, it would be a pity that its date should depend on the accident of some litigant presenting a reclaiming note which would give the Court an opportunity of determining the principles on which such questions are to be disposed of. Indeed, if the jurisdiction were extended to the Sheriffs, these principles would be settled much earlier than under the present system, because it is certain that there would be many

more appeals against the decisions of the Sheriffs than there have been reclaiming notes against the decisions of the Outer House Judges. Our reasons for objecting to this part of the proposed alteration are different. First, the reason for allowing the Sheriff to grant orders for the protection of property which deserted women have acquired by their own industry, viz., the poverty of the parties, does not apply. Secondly, the duty of determining what is a reasonable provision is a delicate one, is a duty of discretion, and cannot be adequately discharged by referring to a fixed rule, as you might refer to a ready-reckoner; and we think that the exercise of all these delicate discretionary duties is the peculiar function of the Supreme Court.

The Council of the Society of Solicitors to the Supreme Court recommend that a clause should be inserted in the Bill, making it competent to examine as witnesses the parties in consistorial cases. We do not approve of this suggestion. If this important alteration in our law is to be made at all, it ought to be made with deliberation, and after full discussion. And an alteration in the law of evidence ought to be made in a separate bill, and not in a bill relating to the jurisdiction of the Sheriff Courts.

The Betting-Houses Bill.-The Bill introduced by Mr. Anderson (the member for Glasgow) to extend the Betting-House Act to Scotland is within sight of land. It has passed through both Houses of Parliament, and only waits the royal assent before becoming law. It is of course too late now to criticise the manner in which the Bill has been framed, with any hope of improving it. There are one or two objections which occur to one on the most cursory perusal of its clauses. The Bill extends the Act 16 & 17 Vict. c. 119 to Scotland. By that Act betting-houses are declared to be common gaming-houses within the meaning of the Act 8 & 9 Vict. c. 109, an Act which does not apply to Scotland, and the provisions of which are framed solely with a view to English procedure. If it were intended that the provisions of this last-mentioned Act should apply to Scotland, that should have been said explicitly, and some alteration or adaptation of them should have been made so as to make it possible to apply them. Again, when the English Act was being extended and altered, it might have been well to have given an explanation of what is meant by a "place." It is an offence to use a house, room, office, or place for receiving deposits for betting purposes. In the well-known case of Doggett v. Cattern (34 L. J., C. P. 159), the Exchequer Chamber, reversing the decision of the Common Pleas, held that a betting man who habitually resorted to a particular tree in Hyde Park was not liable under the Act. Baron Bramwell said "the preamble of the Act shows that it was intended for the purpose of putting down the use of certain fixed, ascertained betting-houses or offices. Here the mischief could be obviated by the police making the men move on." But only a week or two ago the Common Pleas held that a man who stood on

a wooden stool and held an umbrella over his head occupied a place" within the meaning of the Act. We have not seen a full report of the case, consequently we do not as yet know whether it was the stool or the umbrella which constituted the "place." It could scarcely have been the umbrella, for it would be absurd to hold that a place was a place on a wet day, and not a place on a dry one. And if Baron Bramwell's view is right, one hardly sees how the stool should constitute a place. The police could compel a man standing on a wooden stool to move on as easily as a man standing under a tree. And what if a betting-man on a damp day should use not a stool but pattens,—would he be using a place within the meaning of the Act? The two decisions are not easily reconcilable. A tree is surely a good deal more "fixed," to use Baron Bramwell's language, than either a stool or an umbrella, or both combined. It is to be regretted that the present opportunity has been missed of giving a legislative decision on these questions which have so much puzzled the courts.

Lord Cairns's Judicature Bill.-The Bill which Lord Cairns has introduced proposes to transfer the Appellate Jurisdiction of the House of Lords in Scotch and Irish cases to the new Court of Appeal established by the Act of last year, and it also makes considerable alterations on the constitution of that Court itself. It is rather curious to notice the feeling in favour of the retention of the House of Lords' Appellate Jurisdiction which has arisen at the last moment. For many years bitter complaints were made against the House by Judges, by counsel,-in newspapers, in pamphlets, in reports of the Faculty of Advocates and other learned bodies. Now the Judges of the Court of Session unanimously express their preference for the existing system. So, too, do the Irish Bar. Even in England something like a disposition to recall the step of last year is becoming apparent; the most notable illustration of which is the letter in the Times by Lord Penzance, who last year gave no opposition to the Lord Chancellor's proposal.

To us it seems an exceedingly regrettable circumstance that the question of the Appellate Jurisdiction of the House was not considered as a whole. There were reasons for altering the English system of intermediate appeals. The Exchequer Chamber, composed of Judges of no higher standing than those whose judgments they were reviewing, and who were only Appeal Judges for the nonce, was about as bad an appellate tribunal as could be conceived. But no such objection could be taken to our Courts of Intermediate Appeal. It certainly looks hard that our system of ultimate appeal should be altered because there was a necessity for altering the English system of intermediate appeal. If the question as to the transference of Scotch and Irish appeals had been considered at the same time as the question as to the transference of English appeals, the matter would have been determined by the balance of advantages; and certainly the case for the House of

Lords would have been much stronger. The question ought to have been considered from an Imperial point of view; and it has not. It may be said that it is not too late yet to consider the whole question of appeals. The Act of last year may be repealed. But the maxim that political parties are now acting upon is that what is done cannot be undone. It would have been an easier task to prevent last year's Bill from passing then than it is to repeal it now. It will scarcely do to pass a Bill one year and repeal it the next. By this piecemeal legislation Scotland and Ireland have been placed in an unfair position. Most Scotch and Irish lawyers would prefer the House of Lords to the new Court of Appeal. But the grounds of preference are not nearly so strong when the House ceases to be an Imperial tribunal, and when it is deprived of part of its working strength by the transference of eminent lawyers to the new English Court.

What is the reason of the dissatisfaction expressed for so many years with the Appeal to the House of Lords? and what is the reason of the chorus of praise which is being raised now? The reason seems to be this: our Scotch law did at one time receive benefit by being brought into contact, so to speak, with general jurisprudence, as expounded by lawyers of great cultivation, and of large and luminous mind. It gave breadth, culture, and the liberality of experience to a system which, like every other system of law, was apt to become narrow, technical, and have the note of provinciality about it. Perhaps it may not be too much to say that any benefit in that direction has already been secured, and that the English law might be improved by a similar expedient. The evil was that men trained in the practice and in the constant contemplation of the English law, however able, however broad-minded they might be, could not fail, as Lord Eldon has forcibly pointed out, to be tempted to regard a case from the point of view of a mere English lawyer. So far as the Appeal to the House of Lords was of advantage, it was because that tribunal was an anomaly; it was in so far as it exercised judicial legislation. So far as it was of disadvantage, it was so in respect of its inevitable tendency to become. a Court, and of course an English Court. We fear that this evil would be increased if the appeals were transferred to the new Court; and we suspect that it is the dread of this which is making. so many Scottish lawyers cast a longing, lingering look behind towards the House of Lords. The new Court will be more of a court than the House of Lords was, but it will necessarily tend to be an English Court, dealing mainly with English cases, and contemplating English principles, practice, and procedure.

The question remains, What is to be done? We fear that it is too late to strive for the retention of the English appeals. The practical question really is, should we retain the House of Lords as the tribunal for Scotch and Irish appeals, or should we improve Lord Cairns's proposed Imperial Court? Would the House of Lords remain

strong enough? We do not see why it should not. We have all the Ex-Chancellors to constitute a tribunal. If, however, it is fated that the appellate jurisdiction of the House shall be abolished in toto, Lord Cairns's Bill will require amendment. In one respect, it degenerates from Lord Selborne's proposal of last year. The tendency of the proposed Court is, as we have said, to become an English Court. The only way to prevent that is to infuse a little Scotch blood into it. Lord Cairns does not (as Lord Selborne did) propose to have as a matter of course a Scotch lawyer as a member of the Imperial Court; his reason being that there might happen to be no Scotch lawyer qualified for the position. Yet the Bill provides that there shall be five English judges who take their seats, ex officio, in the new Court. If it is absolutely certain, as is assumed, that there will always be five English lawyers qualified for the position, it may also be taken for granted that there will always be one Scotch lawyer qualified for it too.

It is proposed that the Scotch and Irish appeals shall go to the First Division of the Court, consisting of nine members-five a quorum. We think that the Bill should provide that this First Division should only be a Court of Final Appeal,-should not be, if we may use the expression, a Court of Appeal of the first instance. Otherwise we shall have it becoming merely an English Court,—the evil which we dread and wish to prevent. The Bill provides that except where a question of status is concerned appeals shall not be competent unless the sum claimed amounts to £500. It is quite right that there should be some limit; but this is fixed too high. Lastly, if the Bill is to pass, care should be taken that Scotch counsel can plead in the Appeal Court in any case, whether from Scotland or not, just as they may in the House of Lords now.

Felony by Carriers' Servants.-It is obviously important that bailors whose goods are lost whilst in the custody and care of carriers should know what their remedies are, and how the loss is to be brought home to the carrier. Carriers have been properly protected by Act of Parliament against liability for the loss of goods above £10 in value, unless such value is declared at the time of the consignment, but by the 8th section of the Carriers' Act it is provided that nothing in the Act shall be deemed to protect any mail contractor, stage coach proprietor, or other common carrier for hire, from liability to answer for loss or injury to any goods or articles whatsoever arising from the felonious acts of any coachman, guard, bookkeeper, porter, or other servants in his or their employ. On this section a case, which is instructive, was recently decided and reported by us last week (Vaughton and another v. The London and North-Western Railway Company, 30 L. T. Rep. N. S. 119). There the question was one of evidence-Was it necessary, in order that the plaintiff might recover, that he should prove affirmatively a felony by some particular servant or servants of the company?