FORMS OF PROCEDURE.

"This is a subject attended with many difficulties. Under the Judicature Act 1825, it was competent to the Lords Ordinary to order minutes of debate to aid themselves in forming a judgment, or with a view to reporting the cause to the Inner House. By the Act of 1850 (framed by the late Lord Rutherfurd), written argumentative pleadings were virtually abolished. The Inner House has still the power of ordering causes to be argued in minutes or cases; but since the passing of the Act of 1850, it has not been exercised. In cases of grave difficulty, a hearing before both Divisions, or the whole Court, is substituted in room of the former more satisfactory practice.

"It may be true that the rule of the Act 1825 was sometimes applied to cases in which, when carefully examined, there was no real difficulty; but after seven years' experience, the Council are convinced that such a mode of pleading was better adapted to more than one important class of causes than oral pleading-such as declarators of freedom from entails, questions of succession and vesting, and questions of mercantile law, depending as much upon English authorities as upon the judgments of the Court of Session. Prior to 1850, such causes were almost invariably disposed of upon minutes or cases; and these pleadings form a permanent source of legal knowledge of the greatest value.

"In many cases, the Council would deem it unnecessary to have any written argument; but instead of attempting to define or classify the cases, they recommend-1. That the party reclaiming against a Lord Ordinary's interlocutor should be permitted, after obtaining the leave of the Lord Ordinary to that effect, to annex to his reclaiming note, or box separately, in the form of reasons, a concise statement of the grounds on which he seeks an alteration of the interlocutor; and, in like manner, the respondent should be permitted to box to the Court his reasons in support of the interlocutor. In all cases which turn upon conflicting authorities, the form suggested would, it is humbly thought, aid the Court, and tend to strengthen the confidence of the parties in the judgment finally pronounced. Such a form of taking causes to review would be attended with these advantages-that the judges would be preinformed of the precise questions to be argued before them-the present lengthened statements from the bar could be greatly curtailed-and in many cases it would be sufficient to hear one counsel on each side. This is a proposal, however, attended with difficulty, and as to which a difference of opinion exists in the Council. 2. That, without removing the discretion out of the hands of the Court, causes in which nice questions of law arise, be disposed of upon written argument rather than upon viva voce hearing before the two Divisions, or the whole Court-a course which, besides being by no means so satisfactory as the one proposed, consumes much time, and is a serious interruption to all other business.

DISTRIBUTION OF THE BUSINESS OF THE COURT.

"The Council see no reason for making any alteration upon the rule giving the selection of the Lord Ordinary and Division to the leading party in the cause; upon the whole, it appears to have worked beneficially. The evidence of this is to be found in the fact, that notwithstanding the accumulation of business before one of the Divisions of the Court, that Division still continues to draw into it the largest proportion of new business. The effect of the rule may be modified or restrained, if necessary, for the public interest, but the rule itself should standentire.

"In England, the three Courts at Westminster Hall possess co-ordinate jurisdiction in all civil suits between subject and subject, and a plaintiff may bring his action in any one of the three Courts. In the Court of Chancery, bills may be filed and proceeded in before the Lord Chancellor, the Master of the Rolls, or any of the three Vice-Chancellors, in the option of the party. When an undue accumulation of business depends before any one of those judges, the Lord Chancellor, with the sanction of the Master of the Rolls, has power (5 Vict., c. 5) to transfer a portion thereof to another. Such a power, so vested, is a mode of

restraining, to a certain extent, the effect of the right of selection belonging to litigants, which cannot be complained of. The analogy, however, goes no farther than the Lord President of the Court of Session interposing to equalize the debate rolls of the Outer House. But a similar power, with reference to the business of the Outer and Inner Houses of the Court of Session, might be vested in hands where the public would have confidence it would be justly exercised. But wherever such a power may be placed, it ought not to be exercised until the statutory provisions now to be referred to shall have been put fairly into operation.

"The Act 2 and 3 Victoria, cap. 36 (1839), empowered the Court, in case of arrears of business, to direct the extension of the Winter and Summer Sessions of the whole Court of either of the Divisions thereof, or of all or any of the Lords Ordinary, provided such extension shall not be more than two calendar months in the course of the year. By the same Act, Her Majesty, with consent of her Privy Council, is empowered from time to time, to order and direct the extension of the duration of the sittings of the said Court, or either of the Divisions thereof, or of all or any of the Lords Ordinary,' for the same period.

"The extended sittings of the First Division of the Court, which have been held under the authority of Acts of Sederunt passed by the Court in terms of the Act, are—1853, From 12th March to 1st April, inclusive of Mondays, 17 days; from 1st to 11th November, 9 days; 1855, from 12th to 17th March, 6 days; 1856, from 4th to 8th November, 5 days-total, 37 days. And in November 1855, the whole Court heard a Second Division cause; and in March 1856, the whole Court heard three First Division causes. These were also extra sittings. The power conferred upon the Queen and Privy Council has never been exercised.

"Notwithstanding the extra sittings which have been held by the First Division of the Court, the number of causes which stood in the Long Roll of that Division at the commencement of the present Winter Session was 195. If the sittings of the First Division had been extended during the last two years for the space of six weeks each year, and if two causes only had been disposed of each day, the presumption is, there would have been no accumulation of causes in the roll calling for notice.

"If the sittings were to be extended during the present year for the period of two months, being the limit allowed by the Act, the existing arrear might be nearly cleared off. The Council see no reason why this course should not be adopted. It is the remedy obviously intended by the Legislature. Nor does it appear to be a good objection to say, that the pressure of business upon the First Division would be thereby encouraged, and the extension of the sittings would become a permanent necessity. The Act of Parliament referred to affords the answer to this objection; and those who urge that the present state of matters is temporary, and that an expedient should be resorted to by way of temporary remedy, cannot urge such an objection.

"In conclusion, the Council have humbly to state their conviction, that if the present arrears of business were disposed of during extended sittings, and the changes recommended in this report adopted, the business of the Court would thenceforth be conducted and disposed of more satisfactorily to the public and to the profession; and it is improbable that any undue accumulation of business would thereafter arise."

English Cases.

CORRUPT PRACTICES PREVENTION ACT 1854.-Intimidating a Voter.-The 17 and 18 Vict., c. 102 (the Corrupt Practices Prevention Act 1854), by sect. 5, enacts that, "Every person who shall directly or indirectly by himself make use of, or threaten to make use of, any force or threaten the infliction by himself, or by or through any other person, of any injury, damage, harm, or loss, or in any other manner practise intimidation upon or against any person, in order to induce or compel such person to vote or refrain from voting shall be deemed to have committed the offence of undue influence, and shall be guilty of a misdemeanour." In this case, a Mr Trehearne and his father were bakers, carrying on their business within the borough of Denbigh (namely, at Ruthin), for which they had a right of voting for a Parliamentary representative. The Rev. E. L. Barnwell was the master of an endowed school in the same place, which establishment the Trehearnes supplied with bread. They also supplied bread to two extensive charities, but were appointed to do so by the churchwardens for the time being. At the last election, there were two candidates, a Mr Mainwaring and a Mr Morice. The Rev. E. L. Barnwell was chairman of one of the committees of Mr Mainwaring, and applied on the morning of the polling to Mr Trehearne for his vote for that gentlemen, and on his declining to vote for him, and expressing his intention to vote for Mr Morice, he threatened him with the loss of his custom, and also told him that if he did not vote for Mr Mainwaring, he, Mr Barnwell, would be churchwarden next year, and he would then prevent his supplying the charities with bread. He has since withdrawn his own custom. The Court held, that a threat to take away custom, during an election, was within the statute, but, after the election was over, every person was at liberty to employ whom he liked as his tradesman. -(Reg. v. Barnwell, 29 L. T. Rep. 107.)

FIRE ASSURANCE.-A corndealer and seedsman effected an assurance against fire on his "stock-in-trade, consisting of corn, seed, hay, straw, fixtures, and utensils in business." It was held, that he could not recover for loss of hops or matting, although the jury found that these usually formed part of the stock-intrade of a corndealer and seedsman, in the place where the seedsman carried on his business. "If," said Lord Campbell, C. J., "the policy had been upon stock-in-trade simply, hops would have been included; but then there are the words 'consisting of,' and the effect of these words is to exclude all things that are not specified in the category which follows. It is not argued that hops are included under any of the particular terms of description afterwards used."— (Joel v. Harvey, 29 L. T. Rep. 75.)

INSURANCE.-Marine.-A marine policy in goods contained this clause: "with liberty to load, reload, exchange, sell, or barter all or either goods or property on the coast of Africa and African islands, and with any vessel, boats, factories, and canoes, and to transfer interest from the vessel to any other vessel, or from any other vessel to this vessel, in port and at sea, and at any ports and places she may call at or proceed to, without being deemed a deviation." The vessel, with a cargo, proceeded to the river Benin, on the coast of Africa, where the goods were exchanged for palm-oil, to be shipped on board the same vessel and brought home, but, whilst they were in the factory waiting for the ship, they were burnt. The underwriter was held not to be liable for the loss.—(Harrison r. Ellis, 29 L. T. Rep. 76.)

LEGACY.-Condition.-A legacy was bequeathed with forfeiture if the legatee should "attempt or agree to assign, mortgage, or otherwise anticipate" the same. It was held not to be broken by any act which would not otherwise have operated as an effectual assignment, and consequently not by a conveyance, which was invalid.-(Graham v. Lee, 29 L. T. Rep. 46.)

LIBEL.-Privilege.-Where a party, having an interest in the affairs of another, applies for information to a third party, who gives it bona fide, the party giving such information, in compliance with such request, is clearly privileged. The law leaves open to such party one of two courses-either not to answer, or to answer to the best of his judgment; and if he so answer, he is privileged.—(Per Monahan, C. J., in Onens v. Roberts, 29 L. T. Rep. 39-Irish C. B.) So a party who had induced another to become surety for plaintiff, being under a moral duty to acquaint the former with the solvency of the latter, was held to be privileged.

MORTGAGE OF RAILWAY SHARES.-B., one of two joint secretaries to a railway company, and holder of shares in it, borrowed money, and gave as security his bond and the certificates of his shares, with a memorandum of the deposits. No transfer was made of the shares, nor was any notice given to the directors. On the mortgager becoming bankrupt, the question was raised, whether these shares were not still in his order and disposition, as not having been legally transferred; and this involved the further question, whether a valid equitable mortgage of railway shares can be made, seeing that actual transfer by deed is necessary to convey the interest in them, and to relieve the transferor from liability. The Court of Appeal would not decide this point, which is one of great general importance, but they held that, even if it could be made, all the other essentials to a transfer must be complied with, and notice given to the company; and as that had not been done, the transaction was invalid. It was held, also, that the fact of the mortgager being also secretary to the company did not amount to such notice.-(Ex parte Boulton, 29 L. T. Řep. 71.)

MASTER AND SERVANT.-Liability for Accident-Servant Contributing to the Accident. This was an action tried before the judge of the Passage Court at Liverpool. The action was brought by the widow and administratrix of Matthew Dinning, for damages resulting to her from the death of her husband, occasioned by an accident whilst in the service of the defendant. The defendant pleaded not guilty. At the trial the judge directed a nonsuit, but gave the plaintiff leave to move this court; and a statement of the facts had been drawn up, which the judge had certified as containing a correct account of the case. It appeared that the defendant was a sugar refiner, and that the deceased Matthew Dinning was a labourer employed by him at weekly wages. In the course of deceased's duties, it was necessary to hoist up sugar moulds to a higher floor of the warehouse, and this was usually done by inclosing them in a rope net; but the defendant had introduced into his warehouse the use of clips or iron bands to go round the sugar moulds, which it was suggested were somewhat more economical than the net. The deceased had himself adjusted the clip, but in the course of being hoisted up it gave way, and the sugar mould fell upon the deceased, and caused his death. And it further appeared that the defendant had since returned to the use of the net for hoisting up the moulds. Blackburn now moved to set aside the nonsuit, and for a new trial, pursuant to leave reserved. This declaration was framed upon the case of Paterson v. Wallace, 1 Macqueen's H. of L. Rep. 748; but the learned judge at the trial expressed his willingness to amend the declaration in any way necessary to meet the facts of the case, if it were found requisite. In the case referred to, the deceased lost his life by reason of his masters, through their agents, having carelessly left a very large stone in the roof of a mine in so dangerous a position, that it fell on him whilst engaged in digging out the

coal, and killed him. The deceased and other workmen had called the attention of the manager of the mine to the dangerous condition of the roof, and especially to this stone, and he had replied in a way to show that he felt convinced there was no danger, but he ultimately agreed that the stone should be removed. In the meantime the deceased, without waiting for the removal of the stone, passed underneath it, when it fell and killed him. In that case the L. C. said, "When a master employs a servant in a work of a dangerous character, he is bound to take all reasonable precautions for the safety of that workman." "It is the master's duty to be careful that the servant is not induced to work under a notion that tackle or machinery is staunch and secure, when in fact the master knows, or ought to know, that it is not so. And if, from any negligence in this respect, damage arise, the master is responsible." His Lordship further said, that the questions which ought to have been left to the jury in that case, were, first, was there negligence on the part of the defendants? and, secondly, was the accident the result of that negligence, and not of rashness on the part of the deceased? It is true that that case is not binding upon this court, because it is a Scotch appeal, but it is still of great weight. [Martin, B.-That is scarcely in accordance with the law laid down in Priestley v. Fowler, 3 M. and W. 1, and other cases.] It is contended that it is a case for the jury, and they might find for the defendant; but it is not a case for a nonsuit. [Pollock, C. B.-It is not a question for the jury; it is a question of law. In all cases, no doubt, it might be suggested that there would be a way of making things safer. It might be said that stairs with balustrades were safer than a ladder; but it is not, therefore, necessary for builders to use them. If a man hires himself as a bricklayer's or carpenter's labourer, he is supposed to know of the danger, and if he choose to incur it, he does it in his own wrong. Here the man was expressly employed on this work of hoisting up the sugar moulds, and further, he puts on this clip himself; it is a clear matter of law.] Bramwell, B.-The labourer has an opportunity of knowing all the facts as well as the master, except that perhaps he is a duller person; but that would not give him a cause of action. I think there should be no rule. I desire not to differ from Lord Cranworth. What he meant, I think, was this: the deceased man was lawfully in the place when the accident occurred, and the stone dropped from the fixed property of the defendant, and killed him; and he says, "I should have thought that the man was accessory by his own negligence. It is clear to me that in that case the man was contributory to the accident, and I think it seems to show that the present action was not maintainable. Channell, B.-I am of the same opinion. If I speculated on the matter, I should be inclined to think that the accident arose from the carelessness of the deceased in putting on the clips; but, without that, I think it may be gathered that the deceased so contributed to this accident as to preclude the maintaining of this action; therefore, I think there should be no rule.—(Dinning v. Leitch, 29 L. T. Rep. 81.)

REPARATION.-Personal Injury-Trespass.-The 7 and 8 Geo. IV., c. 18, s. 1, enacts, that if any person should set any spring-gun, man-trap, or other engine calculated to destroy human life, or inflict grievous bodily harm, with intent, etc., he should be guilty of a misdemeanour. In a case tried at Leicester, before Wightman, J., the facts were, that the plaintiff, having lost a bantam fowl, and believing it to be in the defendant's garden, put up a ladder, and got over the wall without permission, and began to search for it among some bushes. His hands and head came in contact with a wire, and immediately a very loud report was heard, some explosive substance was discharged, and the plaintiff knocked down, and he received some slight injury in the eyes. Upon this it was objected by the defendant's counsel, that there was no evidence of any engine or other instrument within the meaning of the statute, and Wightman, J., being of this opinion, the plaintiff was nonsuited. Lord Campbell, C. J.-The learned judge at the trial was right in directing a nonsuit. There was no cause of action at common law, and on the count upon the statute the plaintiff did not show that