Court to a matter that calls for some improvement. In the quasi civil business of the Justiciary Court, we are still under the good old forms of bills of advocation and bills of suspension, for which no printed style exists, so far as we are aware, in any of the modern style books. Very little inconvenience is felt from this, as these writs are now (with the exception of the formal preamble and formal prayer at the conclusion) thrown into the familiar shape of a statement of facts, and numbered and ticketed in usual form. There is, however, one part of the old rules of the Justiciary Court that is not so easily to be borne,―before mentioning which, let us refer to the class of cases which form the ordinary subject of suspension and liberation. They are cases where, generally, a poor man has been imprisoned, after some most irregular and oppressive proceedings, practised towards him by his master; cases where law has been administered with a heavy hand by the country magistrate, or rather by the magistrate's clerk; cases where some of the safeguards thrown around a person accused, for his defence, have been either wilfully or negligently set aside, and where, consequently, the sentence of imprisonment is illegal. It is obvious, that the Court which reviews such proceedings ought to be one easy of access, and such as can be approached upon the means of the poorest person, in regard to whose cases alone, it is ever called upon to adjudicate. Yet, will it be believed, that this Court is the most severe in its exactions of Court fees of all the Courts in this kingdom. Thus, upon presenting a bill of suspension and liberation at the Justiciary office, the fees payable are about L.2, 2s., varying according to the length of the Bill. At the Bill Chamber, the fees would be 7s. 6d., including the certified copy given by the Bill Chamber clerk. Whenever any paper is borrowed, a fee of 2s. is paid; whenever it is returned, 1s. No other office exacts these fees. They are totally unknown in the Court of Session. For every calling of the cause, although nothing may be done, and although it may be of a formal character, lasting one minute, the clerk's dues are one guinea, and macer's dues half a guinea; and, what is the most remarkable of all, both parties have to pay these fees on account of clerk and macer; that is to say, in order to get audience of the judge, L.3, 3s. must be paid to the officers of Court.

The peculiar grievance in the matter is, that part of these most exorbitant and unusual charges do not go into the pockets of the officers in whose name they are exacted, and who obtain all the unpopularity of the exaction. The clerks' fees go into the Exchequer. We respectfully submit to the Commissioners of Justiciary, that this matter should at once be put right by an Act of adjournal. The fees should be entirely abolished; and the macers compensated by Exchequer.

On the assembling of Parliament, we may expect the judgment of the House of Lords on the appeal from Scotland on the important question as to the liability of a master for the injury or death of one

of his workmen, caused by the negligence of a fellow-workman. In Scotland, the Courts, with unvarying consistency, have enforced the rule that the master is liable for the negligence of his workman. In England, on the other hand, a distinction is taken between the case of injury by one workman to another, and injury by a workman to one of the public. In the former case, the master is not liable. The doctrine is thus put by Chief-Baron Pollock, in the case of Wigmore v. Jay (14 Law Times, 231):-"Take the case of a careless cook at a tavern, who, regardless of her fellow-servants, upsets hot water and violently scalds them. Can it be said that they can bring an action against the landlord for the negligent conduct of his servant, and allege the negligence to be that of the master himself? I am of opinion that he cannot. So on a railway, if an accident happens to a passenger by the careless driving or conduct of the engineer, he may recover from the company; but the stoker, who is standing by the side of the engineer, and sees him do the act which leads to an accident, cannot, in my opinion, sue the company for damages arising out of the negligence of his fellow-servant. Under these circumstances, therefore, I lay it down in point of law, that the liability in law alleged in the declaration is not made out in point of fact; that there is no evidence by which the neglect, which will entail responsibility on the part of the defendant to the deceased or the plaintiff, has been brought home to the defendant. I am of opinion, that when servants are employed for a common purpose, their master is not responsible to one for the negligence of another. In order to make him responsible, he must be affected by negligence direct and personal to himself."

This doctrine has been enforced in other cases in England, and is the established law there. The Scotch judges have refused to adopt it, holding, that whether the injury be done by a servant of the master to a fellow-servant, or to one of the public, the responsibility must rest upon him as the employer, and as the party who originates the undertaking, in the accomplishment of which the wrong-doer is engaged. While the case is pending in the House of Lords, Lord Ardmillan is called upon to pronounce a judgment upon the point, and has issued an elaborate note, which, except for the pleasure that is always derived from reading pointed and forcible reasoning, was a labour thrown away. The case can neither affect the law one way or other; that must be determined by the House of Lords in the pending decision. We confess to considerable apprehension as to the result, anticipating that in this case, as in every other, the ancient law of Scotland will be made to bend to the law. with which an English Chancellor is familiar. Hereafter, the widows and children of the unfortunate workmen, killed in quarries and coal pits, will be thrown for support upon the parish, instead of being maintained by the master (who had enjoyed the services of the thews and sinews of the departed father and husband) through the medium of the jury's verdict.

The year has closed with some important changes in the English legal world. The "Cushion of the Common Pleas" is now occupied by Sir A. Cockburn, in room of the late Sir J. Jervis. Sir R. Bethell is one step nearer the highest dignity, of which only his genius is worthy, by being made Attorney-General. Mr Wortley has been made in his room Solicitor-General, and an "ill-used man." Mr Watson has been made a Baron of Exchequer, in room of Baron Platt. The minor promotions-in the way of recorderships and the like-which have followed in rapid succession, indicate sufficiently the splendid field that our brethren in England have at their command. Certainly, the prizes which fall to their lot are a magnificent contrast to those with which the "perspective" of a Scotch advocate is generally bounded, and whose ambition may perhaps be culminated by a sheriff'ship at Uist or Barra. This makes us feel all the more, the injustice which the Scotch bar has for many years suffered, in the matter of Colonial Appointments. An advocate is entitled, equally with an English barrister, to practise at every Colonial bar, and it seems to us to be a fair carrying out of the equality, that if the English lawyers obtain the monopoly of the purely English colonies, we in Scotland should be preferred to those, where the law administered is based on the civil law--a system of jurisprudence, of which confessedly they know nothing, but which in this country it is of necessity our first business to acquire information. The colonies where civil law is more or less administered are all those not originally settled by Great Britain, but acquired by conquest or treaty. Such are the Dutch and French West Indies, the Cape, the Mauritius, Ceylon, and one or two others. Now, how rarely is it that a single appointment to any of these places comes to Edinburgh. Everything of any value is sacrificed to the importunities of an English or Irish member. One honourable exception was made, indeed, last autumn, in our favour. We allude to the appointment of Mr Gillespie Dickson as Procureur-General of the Mauritius—a selection which, in our opinion, did the Colonial Minister infinite credit; for the gentleman was an able and hard-working lawyer, whose Treatise on Evidence, has been a professional acquisition of the most valuable kind, and who will do credit to the bar of which he is a member, in any position in which he may be placed. We trust that this case will not be suffered to remain an isolated exception, to a usage which has too long prevailed, but that it is the commencement of a system, that will not soon be again discontinued. We are reminded of the subject, by seeing it announced, that Stephenson Villiers Surtees, Esq., of the Inner Temple, has been made Chief Judge, and J. E. Remono, Esq., First Puisne Judge, of the island of Mauritius.

THE MERCANTILE LAW AMENDMENT ACT.1

THE NEW LAW OF SALE.

WITH a view of remedying "the inconvenience felt by persons engaged in trade, by reason of the Laws of Scotland being, in some particulars, different from those of England and Ireland in matters of common occurrence in the course of such trade;" two Acts of Parliament were passed last session. The one relative to England and Ireland adopted several rules from the Law of Scotland, which were considered preferable to the English Law on the same subjects; and the other relating to Scotland, has introduced into our Law corresponding changes of the greatest possible importance. This is not now the time, were it the place, to question the policy of the measure; but aware as we are of the danger of violently engrafting a rule, the growth of another law, on a system foreign to it in principle and practice, we shall certainly watch its operation with some degree of anxiety. The result of a rather careful examination has satisfied us that it is likely to occasion, in its application, questions of considerable difficulty, in which our judges will have to solve the novel problem of reconciling principles flowing from one source with others from a directly opposite. With regard, especially, to the abolition of the rights of creditors of a seller to attach goods sold but not delivered, we entertain very serious apprehensions-more particularly as the change is introduced in terms so unguarded, and without any of the checks which a proper system of registration might have afforded. Such considerations. are, however, now quite out of place. At present, our only purpose is to devote a few articles to the examination of the new Statute in detail, and as chief in interest, as well as importance, we begin with what may be called the New Law of Sale.

The principle of the Law of Scotland, with regard to the transference of every kind of property, is that of the civil law; that while the obligations of the contract are completed by consent validly expressed, the seller, till delivery, remains undivested of the subject sold. In other words, there can be no property acquired by purchase without possession-a rule which seems to have been considered necessary as a security against latent real rights.-(Soe L. P. Blair, in Broughton v. Aitchison, Nov. 15, 1809.) The principle of the Scotch Law, says the L. J. C. in a well known case (Boak v. Megget, Feb. 13, 1844), is, "in my opinion, recommended by both practical justice and expediency, for, if bankruptcy occurs, I think it better that the loss should be sustained by the party who did not protect himself as he might have done, and chose to trust the seller without any precautions, than by the general body of creditors who were entitled to hold their debtor

(19 and 20 Vict., c. 20-An Act to amend the Laws of Scotland affecting Trade and Commerce).

to be proprietor of the goods, of which he was the ostensible owner." Consequently, he says, the security of parties dealing onerously with the ostensible owner was one of the great benefits of the law. On the other hand, it may be urged, with some apparent force, that in the absence of any lien or security for the debt, the creditor trusts only to the personal credit of his debtor, and not to any particular parcel of goods being appropriated to his payment. Nay, the debtor is left at full liberty in the exercise of the ownership of the goods in his custody to sell them at his pleasure. It follows, that, if he does so, it is an injustice to the purchaser, to deny to him, in competition with the creditors of the seller, the right to demand the delivery of the goods he has bought and paid for, simply because he has not acquired that right of property in them, which can only be constituted by possession.-(See Merc. Law Amt. Report.) These views have already been adopted in France (Code civile, liv. 3, tit. 6, c. 21, art. 1585-1587), and Holland, where the old civil law maxim has given place to the principle, always observed in England and America, that, from the moment the bargain is struck, if the subject is specific, the property, risk, and all, at once pass to the purchaser. The creditors of the vendor have then no control over the goods ready for delivery, other than the right of retaining them in security of the purchase money, and the same is now made the rule in the Law of Scotland.

The substance of the first four sections of the new Statute' relating to sale, are,

1 Sec. 1 enacts,-" I. From and after the passing of this Act, where goods have been sold, but the same have not been delivered to the purchaser, and have been allowed to remain in the custody of the seller, it shall not be competent for any creditor of such seller, after the date of such sale, to attach such goods as belonging to the seller by any diligence or process of law, including sequestration, to the effect of preventing the purchaser, or others in his right, from enforcing delivery of the same; and the right of the purchaser to demand delivery of such goods shall, from and after the date of such sale, be attachable by or transferable to the creditors of the purchaser.

II. Where a purchaser of goods who has not obtained delivery thereof, shall, after the passing of this Act, sell the same, the purchaser from him, or any other subsequent purchaser, shall be entitled to demand that delivery of the said goods shall be made to him, and not to the original purchaser. And the seller, on intimation being made to him of such subsequent sale, shall be bound to make such delivery on payment of the price of such goods, or performance of the obligations or conditions of the contract of sale, and shall not be entitled, in any question with a subsequent purchaser, or others in his right, to retain the said goods for any separate debt or obligation alleged to be due to such seller by the original purchaser: Provided always, that nothing in this Act contained shall prejudice or affect the right of retention of the seller for payment of the purchase price of the goods sold, or such portion thereof as may remain unpaid, or for performance of the obligations or conditions of the contract of sale, or any right of retention competent to the seller, except as between him and such subsequent purchaser, or any such right of retention arising from express contract with the original purchaser. III. Any seller of goods may attach the same, while in his own hands or possession, by arrestment or poinding at any time prior to the date when the sale of such goods to a subsequent purchaser shall have been intimated to such seller,