attempt is made to classify actions by dividing them into two classes, according to the nature of the conclusions or remedy prayed for. Under this arrangement, the new form of record, based on the system of pleading observed in the courts of Westminster Hall, is made applicable to all actions brought for the recovery of money only; and in this class of cases the proceedings are to be commenced by a summons or writ containing no conclusions, but stating only the amount of the claim, and the cause of action, in the form of an indorsement. In actions in which any remedy is claimed other than or in addition to pecuniary compensation, it is proposed that the remedy should be stated in the form of a bill or prayer, addressed to the Court, to be served upon the defender along with the writ; and that the record in such cases is to consist of the pursuer's statement of facts and the defender's answers, either of which may, if necessary, be amended before closing.

It is necessary to restate, as we have done with the utmost brevity, the essential points of the new form of process, which the bill proposes to legalize, in order that our readers may the more easily follow the modifications which have been suggested with reference to this part of the project. The proposed division of actions. into two classes has been thought by many to be objectionable upon two grounds. One of these-viz., that parties would not know in which form to institute an action-is scarcely deserving of a serious answer. Every one knows what a petitory action is. If he is suing for money only, he adopts the form in Part I.; if otherwise, he adopts the alternative form. No classification could be more clearly marked, and no difficulty need be anticipated in applying it.

The other objection to which we have referred is more serious. It is, that the classification is not sufficiently accurate for the purposes contemplated. The Lord Advocate's design is, that actions appropriate to jury trial should be instituted in the manner provided by Part I. Such actions, accordingly, are to be brought into Court by a formal summons without conclusions; and the pleadings must be issuable; that is, they must be so framed as to raise simple issues of fact by the affirmance of a ground of action or defence on the one side, and a general denial on the other. But, it is said, a classification which has reference merely to the remedy,-e.g., a division into petitory actions, and actions not petitory,-does not in

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its two divisions correspond to a classification of actions suited for jury trial, and those not suited for that mode of investigation. It must be admitted that the proposed division would exclude from the first class many actions which are usually referred to a jury,e.g., reductions,-while it would have the effect of including in that division many cases which might be more conveniently investigated by a different form of trial,-e. g., disputed accounts, and the more complex cases upon the contract of sale.

The objection just stated may be obviated either by exceptional clauses, or by adopting a classification upon a different principle. For example, it might be provided that where the judge was satisfied that the case was truly one of accounting, he should have power to remit to an accountant for the purpose of inquiry, instead of sending the case to a jury, Under the provisions of the present bill, the Lord Ordinary is empowered, in all cases other than simple petitory actions, to determine in what way the proof shall be taken. There is therefore no exclusion of jury trial in any class of cases any more than there is under the existing practice.

It has been suggested, however, that a classification of actions, according to the grounds of action, would accomplish better the object in view, that is, the introduction of a new form of pleading adapted to jury cases. If the classification is to be made to depend upon the grounds of action, it is desirable that the distinction should not be taken until the parties have come into court, so that it should not be in the power of the litigant to object to the writ, or to diligence used on the dependence, on the plea that the action should have been commenced by bill instead of summons, or by summons instead of bill. To meet this difficulty it would be necessary either to retain the existing summons, with conclusions, or to provide that in all cases the summons should be without conclusions, and that the indorsement should contain, in addition to the statement of the sum or subject claimed, a note of any order ad factum præstandum, or other extraordinary remedy which the party might desire.

We suspect, however, that a classification according to the grounds of action would be extremely difficult to work in practice; while the proposed classification according to the remedy, although imperfect in theory, would at least have the advantage of bringing within the scope of an 'issuable' system of pleading a very large proportion of the cases which are most frequently remitted to a jury. Whether the classification should be marked by a distinction in the form of

the initiatory writ or not, is a question of secondary importance; but if there is to be a distinction in the form of pleading, it is essential that, in one way or other, it should be clearly marked, and that parties should not come into court without the means of knowing with reasonable certainty the form in which these averments are to be put upon record.

Without attempting to anticipate the verdict of the profession on the bill as a whole, we have thought it desirable to direct the attention of those engaged in studying its provisions to one of the most important features of the proposed system, and to point out the difficulty attending a classification upon any other basis than that which is proposed. We purposely reserve our detailed criticism upon the measure, and the proposed amendments upon it, until the reports of the professional committees have been made public.

Correspondence.

DUBIOUS EXPRESSIONS IN RECENT ACTS OF PARLIAMENT.

(To the Editor of the Journal of Jurisprudence.)

SIR,-The thirteen Judges of the Court of Session have been recently engaged in deciding whether the Act relating to the resignation of gratuitous trustees is retrospective or not, it being till now considered doubtful, on account of the dubiety in which the Act is expressed, and which a single sentence would have placed beyond doubt.

Is it not probable that a similar question may arise out of the Titles Act, 1858, which enacts, from and after the first day of October 1858, it shall not be necessary to expede and record an instrument of sasine on any conveyance'?

Is this Act retrospective or only prospective? The date infers the latter, and the word any supports the former. Or more direct, Is a conveyance executed, but not completed by sasine before 1st October 1858, now, properly completed by merely recording the conveyance with a warrant thereon?

The word any is comprehensive enough to include conveyances executed, but on which sasine had not been expede when the Act came into force; but the presence of a date in the same clause seems to limit the operation of the Act to conveyances granted after that date.-Yours respectfully,

A. B.

Digest of Decisions.

COURT OF SESSION.

FIRST DIVISION.

MURCHIE v. FREEBAIRN AND OTHERS.-May 22.

Small Debt Act-Reduction.

This is a reduction of a small debt decree pronounced in the Sheriff Court of Ayr, on the ground of an alleged alteration and vitiation of decree as entered on the book of causes and in the extract. This alteration is alleged to have been made by the Sheriff-Clerk Depute after the extract had been issued. The defender pleaded that the action of reduction was incompetent in the Court of Session by and in terms of the 30th section of 1 Vict., c. 41. This and the following section of that Act exclude review of decrees pronounced in actions in the Small Debt Court, except in certain specified cases, and in these only by appeal to the Circuit Court or High Court of Justiciary. The Lord Ordinary (Jerviswoode) sustained the defender's plea, and in respect thereof dismissed the action.

The pursuer having reclaimed, the Court recalled the Lord Ordinary's interlocutor. The majority held that the 30th and 31st sections of the Act founded on were not applicable to the present case, inasmuch as the object of the action as set forth by the pursuer was not to reduce or review a decree pronounced by the Sheriff, but to set aside an alteration incompetently made in the decree by the Sheriff-Clerk Depute after it had been pronounced.

arms.

CHEYNE v. M'DONALD.-May 29.

Obligation-Personal Diligence.

On 22d May 1860, the pursuer obtained a decree in absence in this Court against Donald M'Donald, the defender's brother, for L.500, with interest till payment, and L.7, 5s. as the expenses of process and dues of extract. A charge was given on this decree, and after the expiry of the charge a warrant to imprison the debtor was procured on 25th July 1860. On 9th October following, Donald M'Donald was apprehended on this warrant at Falkirk Tryst by Andrew Webster, messenger-atThe defender, who is the brother of Donald M'Donald, granted a bond or letter of presentation, dated 9th October 1860, addressed to Andrew Webster, proceeding on the narrative of Donald M'Donald being in custody for non-payment of the sums in the decree, and that the messenger had agreed to delay putting in force the warrant of imprisonment in the meantime, on condition of the defender granting the letter of presentation; and the defender accordingly became bound to present the person of Donald M'Donald in Edinburgh on the 14th of November 1860, at twelve o'clock noon, either to Webster or any other messenger

holding the warrant of imprisonment, in order that the same might be enforced, and that without any such suspension or other legal impediment to prevent the same being put in force.' Failing his so presenting his brother, the defender became bound to pay the whole sums and interest contained in said decree, and all other reasonable expenses.' On this bond being granted, Donald M'Donald was liberated. On the 16th of November 1860 he appeared in Edinburgh, at the place and hour mentioned in the bond; but in the interval between its date and his so appearing, he had brought a note of suspension of the decree held by the pursuer, which was passed and intimated, and consequently defeated the pursuer's diligence. Under these circumstances the present action was brought against the defender, the granter of the bond of presentation, for payment of the sum in the decree.

The Lord Ordinary (Mackenzie) repelled the defences, holding that though the bond of presentation was addressed to the messenger, it was taken for the pursuer's behoof, and therefore enforcible by her, and that the defender's contention as to sisting this process was clearly untenable, as the pursuer never agreed to liberate Donald M'Donald upon any such terms, and to give effect to this plea would be defeating the plain meaning and intention of the bond. The Court to-day unanimously adhered.

MACKINNON OR M'DONALD v. M'DONALD.-June 2.

Marriage-Constitution by Writ.

This is an action of declarator of marriage at the instance of Margaret Mackinnon or M'Donald, presently residing at Govan, near Glasgow, against Patrick M'Donald of Ardmore, Duirinish, in the Isle of Skye. The principal facts brought out on the proof are the following:-In 1857 the pursuer went as a servant to Ardmore, the residence of the defender and his mother, and remained there till December 1858. In the spring of 1859 the pursuer and defender went to Glasgow, and thence to Liverpool, on their way to America. In Glasgow the defender expressed his intention to be married to the pursuer, and in Liverpool he delivered to her a document in the following terms:- Liverpool, 4th March 1859. -I this day acknowledge, before these two witnesses, John Williams and Alexander M'Arthur, that Margaret Mackinnon is my wife. (Signed) Patrick M'Donald.' The parties thereafter sailed to America, from which they returned in the month of May 1859, first to Liverpool and afterwards to Edinburgh. Both parties admit that they cohabited while in America, and after their return to this country. The next aspect of the case is the interposition of some friends of the defender to procure a discharge from the pursuer of the promise of marriage on payment of a sum of money. In the month of November 1859, the parties again began to correspond. In a letter of the 26th November, the defender asked the pursuer to meet him at Sligican on a particular day, and adds, 'The Captain (the defender's brother) spoke to me about you the other day. He believes we are married; and I told him I had given you a paper in Liverpool, before we left for America, promising to marry you. I wish I had married you before I came back, as it would have shut people's mouths.' On 1st December 1859, the defender again wrote to the pursuer as follows:- My dear Margaret,-I wrote you Saturday last to say that I will meet you at Sligican on the 7th, which will be Wednes