New Books.

Digest of Cases decided in the Supreme Courts of Scotland, and Appeal to the House of Lords, 1852-1862; containing also the Cases decided in the House of Lords from 1726 to 1821, in con tinuation of the Digest by Patrick Shaw, Esq., Advocate. B NORMAN MACPHERSON, ANDREW B. BELL, and WILLIAM LAMOND, Esqs., Advocates. Edinburgh : T. and T. Clark.

A GREAT poet of our century has reproduced in his autobiograpa a dream-picture, in which he has imagined the extinction of the entire body of ancient literature, save two volumes which a traveller escaping from the catastrophe, has managed to carry away with him on the back of a dromedary. The works which the illustrious author has selected as the embodiment of what is most valuable in the treasury of past thought, are of course the sacred writings, the first place, and Euclid's Elements, in the second. It would be interesting to learn, in view of a similar calamity overtaking the accumulations of legal erudition which in our time form a literature of themselves, what kind of selection would be made by those whose avocations in our country necessitate the use of a law library. Some, no doubt, recognising the primary utility of works of principle, would unhesitatingly seize upon the Roman Digest; but we suspect that the average professional artist would give the preference to the Digest of Mr Shaw. Perhaps, on the score of present utility, the choice might be successfully defended; for certainly no three volumes in the Scotch lawyer's library are more frequently consulted, nor could any be less conveniently spared, for purposes of daily use. To these volumes, the gentlemen whose names are prefixed to this notice are in the course of adding a fourth. The first two parts of the new volume have already appeared, and we understand that the rest may be expected about the end of the year.

It is unnecessary that we should say anything in recommendation of a work which is so well known, and so much esteemed by the practising members of the profession. It is due, however, to the compilers of the new volume, that we should express our opinion with respect to the manner in which they have executed their task,an irksome one, doubtless, but one from which some professional

advantage may be reaped by those engaged upon it, in the shape of increased familiarity with the sources of modern law.

The value of such a work as the Digest is not to be measured by the mere saving of mechanical labour in consulting one index of decisions in place of ten. That in itself is of course a saving of time, and may make the difference between gaining and losing a debate Then time is limited. But over and above this, it is to be observed hat the indices to the individual volumes of the reports are necessarily imperfect, and are not always prepared upon one and the same principle. Such imperfections, and the want of uniformity, are a source of great perplexity in consulting the reports; and accordingly the chief duty of the Digester consists in classifying the cases. We are glad to say, so far as we can judge from the portion. row before us, that the classification of rubrics in the present volume as been most intelligently and successfully accomplished. The compilers have in some respects improved upon the former volumes; as an instance of which, we may mention the abolition of an unmeaning and absurd title, yclept 'Clause,' and the distribution of the cases under their appropriate categories: e.g., Entail, Husband and Wife, Obligation, Statute, Succession, Testament, and Trust. For similar reasons, cases which would formerly have been entered under the title Coal,' are relegated to the several categories of Lease, Minerals, Superior and Vassal. So also the cases formerly classified under Conditional Contract' and 'Conditional Bequest,' re placed respectively under Obligation and Trust, cross references being always given in place of the digested entries. We believe that the system of combining synonymous and cognate titles would have been carried out even to a greater extent, but for the necessity of adhering in the main to the order of classification marked out in the previous volumes. We trust that when, on the elapse of another decade, it becomes necessary, as it will be, to combine four separate indices into one, an effort will then be made to classify the cases upon a more philosophical and comprehensive system than that originally adopted by Mr Shaw from Morrison's Dictionary, and which is recommended mainly by the consideration that use has made us familiar with it.

Reforms in the Court of Session; with special reference to the proposed Court of Session Act. By an ADVOCATE. Edinburgh: Edmonston and Douglas.

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THE author of this pamphlet has rendered an important service to the profession by its opportune publication at the present juncture. We have now passed the stage for complaint with reference to Court of Session procedure, and have arrived at the period of action. The opponents of reform have hitherto professed to join in lamenting over the expense and delay' of the system; though they would have nothing to say to any measure bearing the impress of English ideas. Of course they knew of a more excellent way;' and many mysterious gestures and enigmatical phrases were palmed upon the unwary, to induce the belief that, albeit capable of certain im provements, the existing system of practice was to be regarded as a sacred legacy of the 'wisdom of our ancestors,' and as near as possible to 'the perfection of human reason.' That it did not work well, was a mere accident, a wheel or so wrong in the gearing of the machine which any one of the 'perfectionist school' was prepared to rectify at a moment's notice. It would seem now, if we may judge from certain recent indications, that the admission of imperfections is to be retracted; and that a policy of dogged resistance to change is to succeed one of vacillation and indecision. We do not regret the attitude assumed by these parties. It is well that the public should understand the principle upon which the opposition to the assimilation of civil procedure is rested-the principle of resistance to reform because reform is 'innovation.' Let this be but thoroughly understood, and we venture to predict that the public will care very little for professional opposition. The public are not given to criticise codes of procedure, but they can compare two systems by their results; and we are not sure that in fastening upon the proposed Court of Session Act the reproach of English origin, the opposi tion are not unconsciously making use of an argument which will be its strongest recommendation to popular favour.

The friends of Court of Session reform desire nothing more earnestly than that the profession should judge, from personal study and inquiry, of the expediency of the changes proposed. As for those who have not leisure or inclination for personal inquiry, we would especially urge upon them the duty of hearing what can be said in favour of the proposed reforms by others who have impartially

studied the subject. The author of the very able pamphlet before us is no mere partisan: there is not the shadow of a pretext for the supposition that his pages are officially 'inspired.' His main propositions were announced last spring in a series of articles which appeared in an Edinburgh newspaper, and which, as he tells us, 'were begun some time before it was known that a bill for reform of our legal procedure was in contemplation.' The author, therefore, stands on independent ground in regard to this question; and no one who has perused his pamphlet can fail to see that he has made himself thoroughly conversant with all the details of the question, and that he is very highly qualified to grapple with its difficulties. He points out with clearness and force the faults of the present system-or rather want of system-which we have so often had occasion to lament: the prolixity of our pleadings, and the delay in bringing the record to a conclusion; the uncertainty attending the further progress of the action; the uselessness of issues; the impossibility of amending records under the existing system, without doing violence to the most elementary conditions of its existence. He considers the possibility of ameliorating the present code of practice without aiming at a radical alteration; and he arrives at the conclusion that very large changes are requisite to adapt our procedure to the necessities of the times. Without pledging himself to a strict support of the Lord Advocate's bill, the author gives a frank and cordial adhesion to its principles and leading provisions. While disavowing any prejudice either for or against the English method of practice, he shows, by statistical reasoning, by a comparison of the different systems upon their merits, and by an appeal to past experience, that the profession have nothing to fear, but much to hope, from an extension of the policy of the legislation of the present century, the tendency of which has been to bring the practice of the courts in different parts of the kingdom into closer proximity. As a specimen of the style in which these and similar questions are treated, we conclude our notice of Mr Lancaster's very useful and interesting argument by extracting the following observations upon issues:

'How great soever may be esteemed the uses of issues, there cannot surely be two opinions as to the means by which we arrive at them. Never was any system so perfectly contrived "how not to do it ;" the circumlocution office itself is thrown into the shade. The meetings before the Lord Ordinary, at which nobody can be forced to do anything, and at which, therefore, it is seldom VOL. VII. NO. LXXXIII.-NOVEMBER 1863. 4 B

that anything is done, are ingenious devices for wasting valuable time and giving counsel unnecessary fees. It is absurd to allow discussions before a judge who has no power of determining the matter in dispute. Counsel, though sometimes rational, are not always reasonable, animals; and a combination of reasonable counsel, reasonable agents, and reasonable litigants can be a frequent phenomenon only in the millennium. Consequently the debates before the Lord Ordinary are for the most part altogether thrown away. In any view this should be changed. But, manage it as we will, so long as we retain issues at all, we shall have that greatest of all evils-discussion before proof-wasting time, spending money, disgusting litigants, and every day increasing their tendency meekly to bear injustice rather than encounter a jury trial.

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What, then, do we gain as a recompense for this? what is the use of issues? It is said, in the first place, that they explain and make clear to the jury what it is that they have to try. We think this very doubtful. They are a sort of condensed essence of the condescendence and the pleas; and in order that the condensation may be sufficient, it is often requisite to employ technical language, which must be Hebrew to a jury. They never can state the thing more clearly than it is, or at least should be, stated in the plain language of the record; and if the language of our records is often prolix, that is a very good reason for striving to shorten our pleadings, but is surely no reason at all for making them still longer and more complex, by tagging on to them an addition at best superfluous, commonly a new element of discord. Let counsel tell the jury what is the point to be tried: if they differ, there is the record to refer to; if they disagree in their interpretation of the record, there is the judge to decide between them. Why should he not decide at the trial as well as before it?

'And this brings us to the second argument for issues, i.e., that they settle definitely and finally the point in dispute, and so prevent this being gone back upon after the expense of a trial has been incurred. The answer is short and clear-they don't do this, and it would not be desirable that they should. They were intended to do so; but the intention has been frustrated by the House of Lords. The Supreme Court of appeal has held that an appeal from an interlocutor settling issues is competent at any time, "in fine cause" as well as before trial; and, therefore, issues do not now determine anything at all. The finality which our procedure so longs for is not, in this instance, secured. But the attempt after it is not harmless. The object indeed is missed, but a good deal of incidental mischief is accomplished notwithstanding. The exactness required in issues, and the finality which does attach to them during the trial, involves serious risk of miscarriage. Parties are tied down in the strictest way-no latitude is allowed-amendment is impossible; and consequently the smallest discrepancy between the case laid and the proof is fatal. In short, we have ingeniously so managed matters as to secure for ourselves all the evils of finality, and to lose all its supposed advantages.'-(P. 37.)

English Cases.

POOR-RATE.-By arrangement between the N. L. and B. Railway Companies, the passengers were booked through and carried from stations on the N. L. line along and to stations on the B. line, the N. L. Company paying over out of the whole fare charged a fixed sum to the B. Company for every passenger so carried, such sum being a reasonable one. It was held, that in ascertaining for the poor-rate the rateable value of a part of the N. L. line in a particular parish, the aggregate of the sums so paid over to the B. Company was to be thrown