List of New Publications.

Commentaries on the Law of Suretyship, and the Rights and Obligations of the Parties thereto, and herein of Obligations in Solido, under the Laws of England, Scotland, and other States of Europe, the British Colonies, and United States of America, and on the Conflict of those Laws. By William Burge, of the Inner Temple, Esq., one of Her Majesty's Counsel, &c. In 8vo. price 18s. boards.

A Treatise on the Law of Fixtures and other Property partaking both of a Real and Personal Nature; comprising the Law relating to Annexations to the Freehold in general, as also Emblements, Charters, Heir Looms, &c.; with an Appendix, containing Practical Rules and Directions respecting the Removal, Purchase, Valuation, &c. of Fixtures between Landlord and Tenant, and between Outgoing and Incoming Tenants, by A. Amos, Esq. and J. Ferard, Esq., Barristers at Law. The Second Edition, by Joseph Ferard, Esq., Barrister at Law. In royal 8vo. price 16s boards.

A Treatise on the Jurisdiction of the High Court of Admiralty of England. By Edwin Edwards, Esq., of Doctors Commons. In 8vo. price 10s. boards.

The Law of Domicil. By Robert Phillimore, Advocate in Doctors Commons and Barrister at Law. In 8vo. price 9s. boards.

Bills of Costs between Attorney and Agent, in the Courts of Queen's Bench, Common Pleas, Exchequer of Pleas, and Crown Office; shewing at one view Sets of Costs complete in themselves: also in Bankruptcy, Insolvency, Chancery, Conveyancing, Privy Council, Replevin, Sci. Fa., &c., with other Miscellaneous Bills, and a Copious Index. By E. W. Gilbert. Third Edition, considerably enlarged. In 8vo. price 16s. cloth boards.

The Law and Practice of Elections and Election Petitions, with all the Statutes and Forms. Third Edition. By Charles Wordsworth, Esq., of the Inner Temple, Barrister at Law. In 8vo. price 17. boards.

The Law of Costs, as affected by the Small Debts Act, and other Statutes, requiring a Judge's Certificate where the Damages are under a limited Amount, with various Cases, showing in what Instances a Plaintiff may still sue in the Superior Courts. By Thomas Howard Fellows, of the Inner Temple. In 12mo. price 4s. boards.

Familiar Exercises between an Attorney and his Articled Clerk, on the General Principles of the Laws of Real Property, &c. By F. Hobler, Jun., Attorney at Law. Third Edition. In 12mo. price 6s. cloth boards.

Aids for Students of Conveyancing. By F. T. Sergeant, of Lincoln's Inn, Esq., Barrister at Law. In 8vo. price 5s. boards.

The Acts for Building and promoting the Building of Additional Churches in Populous Parishes, arranged and harmonized with a Preamble, Appendix and Index. By James Thomas Law, A.M., late Special Commissary of the Diocese of Bath and Wells. In 8vo. price 6s. boards.

A Treatise on the Law of Landlord and Tenant, with an Appendix of Statutes and Copious Index. By Charles B. Claydon, Esq, of Lincoln's Inn, Barrister at Law. In 12mo. price 10s. boards.

The Law of Qualification and Registration of Parliamentary Electors in England and Wales as settled by the Court of Common Pleas since the passing of the Statute 6 Vict. cap. 18, to the present Time. By David Power, Esq., of Lincoln's Inn, Barrister at Law. In 12mo. price 5s. boards

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The Statutes and Orders relating to Practice and Pleading in the High Court of Chancery from 1813 to Easter Term, 1847, classified according to the respective Proceedings in a Suit; with a Time Table and Notes. By Samuel Simpson Toulmin, Esq., of Gray's Inn, Barrister at Law. In 8vo. price 14s. cloth.

A Treatise on the Law of Leases, with Forms and Precedents. By Thomas Platt, Esq., of Lincoln's Inn, Barrister at Law. In 2 vols, royal 8vo. price 21. 10s. boards.

The Practice of the High Court of Chancery as regulated by the General Orders of the 8th May, 1845. Edited by John Rogerson, a Solicitor of the Court. In 8vo. price 12s. 6d. boards.

The Law concerning Horses, Racing, Wagers and Gaming, with an Appendix containing recent Cases, Statutes, &c. By George Henry Hewit Oliphant, B.A., Esq., of the Inner Temple, Barrister at Law. In 12mo. price 7s. 6d. cloth.

Digest of the Laws relating to Bribery and Treating at Elections of Members to serve in Parliament and for the better Discovery thereof, illustrated by the Cases decided in the Committees of the House of Commons and Courts of Law, with an Appendix containing the Statutes. By James Cook Evans, Esq., of Lincoln's Inn, Barrister at Law. In 12mo. price 3s. boards.

A Treatise on the Law of the New County Courts, compiled from the Statute of the 9 & 10 Vict. c. 95, and the Common Law applicable thereto. By Joseph Moseley, Esq., Barrister at Law. Part 2. In 8vo. price 12s. boards.

LAW MAGAZINE;

OR,

QUARTERLY REVIEW

ОР

Jurisprudence.

ART. I.-SPECIAL PLEADING IN ENGLAND AND

MUC

SCOTLAND.

UCH interest has of late been excited on the subject of pleading, not only in this country, but in Scotland, where a system, different in design and form from our English one, prevails; and a spirit of inquiry has been called forth, which, concerning itself more with the reason of the law than with its existing sanctions, may, it is hoped, in the end effect some great improvement in our system of judicature. We have already had occasion to remark on the views contained in Mr. Phillimore's recent publications; and while we could not go the length he does in the way of reform, we have admitted many defects, and undoubtedly there is much in the present state of things in our courts that is worthy of the serious attention of jurists and legislators. Viewed in every light, not only as it respects the well being and efficiency of the legal profession, but in relation to the many rights and interests of the various classes of our social community, the subject is of the last importance, and we ought to be circumspect and thoughtfully advised in attempting to deal with or innovate upon it. When we consider the antiquity of our English special pleading-the appeal which in its conception and design it makes to the justice of the country-and the constant unceasing application of its leading rules, and that too under a varying and extending law, we hardly feel invited to the work of change. Consuetudo sermonis est consensus eruditorum; but forms originally good and referable to sound principle may at length become the instruments of injustice and may corrupt the law; their continued utility may be disproved by experience, and the complicated relations of an enlarged and increasing society, creating

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at every social turn and movement new rights-explicating, in their multiform aspects, interests the assertion and vindication of which was not and could not have been originally contemplated, much less provided for-seem at least to require the aids of a judicious analysis, such as experience affords, whereby we may extend the boundaries of established juridical science, so that the law itself may be better, that is, more certainly known, and more correctly, because more fully and comprehensively, applied. The idea of law pleading as a means of bringing litigants to a plain and simple issue, on which they are understood to ask the judgment of the court or the verdict of the jury, cannot be too much admired, but the present forms will, on examination, be found incommensurate with our jurisprudence, and therefore inadequate for the ends of justice. The law may be said to have outgrown its administration.

We know of no country where special pleading has been treated so much as a system of scientific allegation as in England. Other countries, especially such as, like Scotland, recognize the fundamental principles of the Roman law, may have finer systems of jurisprudence, but among us it may be allowed that the language of averment is better understood than it is elsewhere. And in any improvements or reforms in our method of pleading we would not touch the general design. So long as confidence can be placed in juries, nothing can be more admirable. It will stand every ethical test, and must commend itself to the serious thinker who desiderates the logical investigation of truth. Objections, however, have been taken to the manner of its working, and we must allow that in several important particulars the system must now be pronounced at fault. The body of the law has been added to, but with an advancing jurisprudence the rules of pleading have not kept pace. Old forms have been pertinaciously adhered to and made applicable to the case of the present day by the device of an assumed fiction. A degree of nicety and excessive precision, leading to an extreme and impracticable technicality, have been the consequence, to such a degree as virtually to give the rule to, instead of receiving the rule from, the law. But let us not be misunderstood. We do not depreciate precision of language or accuracy of style; we think juridical statements cannot be too clear, too severely precise, or too rigidly accurate; but we do object to such an absolute devotion to antiquated forms as would forget or supersede legal principle.

On the other hand the Scotch pleaders have, it is thought, gone to the other extreme, and have allowed to be introduced into their records a freedom of statement scarcely compatible with well digested practical law. Their forms of pleading are

nevertheless capable of giving a good trial, and are in some respects better and more complete than our own. But while there is much in their system which the jurist must admit to be improvements on the English method, it cannot, we think, be disputed that the formal design of the latter is the more scientific. The directions or rules which the Scotch judges have at different periods given by their Acts of Sederunt, as they are called, for the preparation of pleadings, illustrated as these have been by several excellent compilations on practice, particularly the useful work by the late Mr. Darling, are very admirable; and since the introduction of jury trial in civil causes into the judicature of Scotland, there has been given to the pleadings of that country a more distinct form than they formerly possessed. A new test has been applied, the general characteristics of the Scottish system have been more clearly developed, and it has now ascertained principles by which, as the late Lord Chief Commissioner Adam called it, the special pleading of Scotland in jury causes may be distinguished. But special pleading in the strict sense, or the science of juridical allegation, has never been treated in Scotland as in itself a separate branch of legal learning, with its own appropriate rules, principles and forms, nor have the Scotch studied exact verbal statement as a pure forensic art so much as we have. Their law works have chiefly been devoted to the elucidation of legal principle, and in this course of study they must be allowed to have succeeded. Perhaps the entire body of Scotch law now presents the most philosophical system of jurisprudence in existence. Its genius is seen to great advantage in what are called the Session Papers, or preserved records. Some of the argumentative pleadings (for there are such in certain cases according to the Scottish practice) in this valuable collection of legal writings are remarkable for the elegance and power of their composition. The old session papers are particularly distinguished in this respect; their argumentative contents, the productions of the Scottish lawyers of a former age, being in numerous instances perfect models of legal disputation. Founded upon the principles of the Jus Civile, the matured conclusions of the erudition of Rome, the Scotch law may be said to be the most interesting study in which the legal student could engage. The common law of Scotland is in principle more extensive than our own, and this is owing to the foresight and perspicacity peculiar to the sources whence the legal customs and judicial habitudes of the country have proceeded. The beneficial effect of this is seen in the comparatively few statutes that are passed for Scotland, the courts of which country are glad not to be embarrassed by the