unceasing legislation with which the English courts are visited. The Scotch lawyer would rather work out a legal principle than interpret a modern act of parliament, and generally the system that prevails in the North encourages more a free examination of the law and its reasons, than a rigid adherence to the unbending technicality of prescribed form. The Scotch courts accordingly exhibit a procedure more intellectual than technically formal; and if at times the English lawyer in the House of Lords is unable to appreciate a result to which the peculiar channel of his legal inquiries do not lead, the presumed error of the Scotch judge ought to be attributed rather to a disconformity with the requisites of a judicature different from the Scottish, and it may be better, than to a want of anxiety in the application of his learning, or unfaithfulness in the judicial administration of his own jurisprudence. Let any of our

readers visit the courts of the two countries, and he will be struck with the distinctive characteristics to which we refer. In the English court he will hear a skilful dissection of a statute, with a ready citation of cases and precedents; or, it may be, a motion on some point of procedure, supported by a well arranged statement, in which some nice question of pleading will be clearly and logically put to the judges. But in the Scottish forum he will find more deliberation and purpose, and possibly he will discover his mind to be interested there by a purer form of argument. But while he will recognize in the argument of the Scottish advocate more of the spirit and principle of the jurist, than in the terse reasoning of the English barrister, he will miss the exactness, the precision, and the strict forensic method of the latter. This cannot but be ascribed to the different systems of pleading under which the English and Scottish lawyers are respectively educated. Pleading is the discipline by which the training of the professional mind, and so the professional character, is governed; and according as that pleading is true and accurate will be the success of the practitioners' labours, and the certainty and justice of the law, which it is the office of pleading practically to develope. When we consider what a fine system of jurisprudence the Scotch is, we must desire to see it aided by a sound, a strict, a philologically precise style of formal allegation, a form of averment that would exclude all popular and general idioms, rejecting all periphrasis, and enforcing, by stringent rule, that plain unambiguous and direct statement by which law most effectively announces itself. It should, however, be kept in view that in Scotland jurisdiction is not divided into law and equity, and that therefore the practice of the law there is not capable of such distinctive conciseness as our common law. In England

the tendency of late reforms in the law has, however, rather been to bring the two jurisdictions nearer each other. These reforms may, for the most part, be referred to equitable considerations, and there is much in the spirit of our legal practice to encourage this legislation. Jurisdiction divided into that in equity and in law has not been, nay, cannot be, carried out with exclusive strictness. The English common law jurisdiction, including trial by jury, is not a pure one, in some respects it is anomalous. The pleadings are strictly of a law character, and as they mark out undeviatingly the field of inquiry, they countervail the equitable leaning of the common law. But the trial itself is an equitable proceeding. The jury are so many judges in equity; the speeches of counsel before them are simply appeals to that equity; and the verdict is their equitable finding, a striking of the averages, a balancing of the case with their reason and sense of justice, to which it is felt to be impolitic and unwise to oppose limits of legal art. The province of juries is now a large one; they do not decide mere isolated matters of fact, but they are held to be cognizant of the law, and try and determine important rights. There has been many a just verdict against previously decided law. Yet it is by such means that our common law grows, by such means that inflexible law merges in equity. Still to this jurisprudence the general plan of our law pleading may be preserved, although it may be futile to apply to it all the conceits of bygone times.

But Scotch pleadings are not moulded conformably with this plan they are not drawn according to the issuable design by which our English common law pleading is distinguished. They do not necessarily and intrinsically tender issue, which we think they ought in form to do. They are not, however, made at large in the loose sense, as Mr. Stephen seems to imagine, but after a form which is intended to have the effect of bringing out everything of importance to be known before coming to trial, which is had upon an issue extracted from the pleadings. Thus the inconvenience of any defect in design, if not compensated for, is at least greatly obviated, by the comprehensive and circumstantial manner in which the facts of a case are set out in a Scotch record. A brief sketch of Scotch pleading, as it is, will here not be uninteresting to our readers, and will enable them better to understand our views on the general subject. A judicial record in Scotland is framed under the regulations of the statute 6 Geo. IV. c. 120, called the Judicature Act. It begins with a summons, a pleading analogous to the English declaration, and drawn in the syllogistic form, or, to speak more correctly, its logical structure is the enthymeme; for, like most

other legal instruments, its major premiss is suppressed.1 It differs from the other pleadings in not being signed, or in general prepared, by counsel, but passes under her majesty's signet, and in its formal terms proceeds in the sovereign's name. But if not actually drawn, it is usually revised by counsel, a precaution which Lord Chief Commissioner Adam was of opinion should in all cases be taken; and certainly, when we reflect how important it is that actions should be well laid at the commencement, the expediency, we would say the necessity, of having recourse to the best legal advice in the preparation of the opening pleading, seems apparent. The summons sets forth the demand, the right or the wrong founded on, finishing with appropriate conclusions in law; and, according to the authoritative and learned testimony of Chief Commissioner Adam, himself an English lawyer of great experience and for many years the presiding judge in the Jury Court in Scotland, "is systematic in point of form, and if drawn with care and skill (if it were more technical in expression) there cannot be a more correct and better pleading.' This summons is met by defences, which contain the defendant's (or defender's, as the Scottish nomenclature has it,) ground of opposition in fact, with legal reasons assigned after a set form. The defences may either deny the facts alleged in the summons, with, if necessary, a plea inter alia on the relevancy; or they may admit the facts founded on, and plead new or collateral matter in defence, that is, as we would say, confess and avoid. This pleading must contain all pleas, dilatory and peremptory; for in Scotland pleadings in fact and law are combined, although the fact and the law are arranged after a distinct order. The dilatory pleas are first taken, and if these are disallowed judgment is given to plead over on the merits. The defences are not formally replied to, a proceeding rendered unnecessary by the other pleadings not being essentially issuable in their structure.

The defences and every subsequent pleading are drawn and signed by counsel. In Scotland there is no distinct body of pleaders, as with us,-the duty of "making up the record" devolving on the junior counsel. If the summons and defences are deemed sufficient to plead the subject of the suit, an issue, if it be an issue in fact, is adjusted before the proper officer, or "issue

The only pleading of which the writer of this article is aware as prepared after the plan of a pure syllogism is the Scotch criminal indictment. That instrument declares on the face of it the major proposition, or general ground in law on which the criminal charge is laid. It is the ex officio information of the Lord Advocate as public prosecutor.

2 Adam on Jury Trial in Scotland, p. 15.

We believe a rule of the same kind prevails at the Irish bar.

clerk," as he is called, the record is "closed," and the trial takes place at the first sittings or on circuit, unless cause be shown for deferring it. But if it be thought expedient to have a fuller record (and this is the general case) an order or rule of court is taken for a condescendence and answers. These are separate pleadings, the condescendence being the plaintiff's (Scotticè pursuer's) paper, and the answers the defendant's; and by them respectively all the facts of the case are averred and answered in an articulate manner. They are pleadings of pure averment, without argumentative matter or matter of evidence. The condescendence and answers are exchanged and "revised" by the respective pleaders, and thus amplified the whole is submitted to the issue clerk, who (under review of the court on cause shown) settles the issue or issues which are to try the action. This completes the record. The counsel and agents on both sides attend the issue clerk at the framing of the issue, which is usually the general issue, prefaced with an admission or admissions; but if suitable to the action a special or specific issue or issues on particular points of the case may be taken. It may be gathered from what we have said, that the meaning given in Scotland to the term general issue is different from that which is understood by it in England. With us the general issue is a plea pleaded by the defendant by way of traverse to the whole declaration, whereas in Scotland it is just what its name imports, a substantive issue or proposition on the whole case, and expressed in general terms. Mr. Macfarlane, of the Scotch bar, in his excellent treatise on issues in jury causes, says, "The distinguishing and peculiar feature of the principle now observed in the adjustment of issues is, that while the real and leading point on which the litigation turns is fairly brought out and indicated, this is done in as general and comprehensive a manner as possible."" But although the issue be thus general in its form, parties cannot by evidence travel out of the record, of which the general issue is the embodiment, and with reference to which it must be read. There is another issue peculiar to the Scottish system, called a counter issue. Where the defences admit, colourably or expressly, the plaintiff's facts and their relevancy, and plead new matter, the defendant usually takes a counter issue, that is, an issue concentrating in its terms the new matter pleaded by way of avoidance. The pleas proper to this form of issue are pleas in justification and excuse, and pleas in discharge; and generally the principles which regulate the use of the counter issue are the same as those on which our doctrine of confession and avoidance is founded. An issue in law, corresponding in sub1 Macfarlane on Issues in Jury Causes, part i. p. 8.

stance to the English general demurrer, may be brought out in a preliminary defence in the shape of a question of relevancy; or as resulting from admitted or proved facts; or as arising out of a special verdict, or reserved question of law. There is, however, this difference between the Scotch issue in law arising on a point of relevancy and our general demurrer, that if the judgment be for the plaintiff, that is, if the demurrer, so to speak, is disallowed, the defendant may then plead over, and in his defence always does, to the fact; for the legal objection in Scotland does not hold the party pleading it as admitting absolutely the fact or facts on which it is raised. Our doctrine on this head is not understood by our northern friends, and indeed it is difficult to defend it, except on the ground of convenient dispatch for the court. In any other view the rule is at least of doubtful propriety. Here the rule of English pleading as to the singleness of the issue (to which we shall presently more particularly refer) operates unjustly. In such a case, costs, irrespective of the ultimate decision of the suit, would be the only advantage we would give a plaintiff. But in comparing our system with the Scotch in this respect, it should be kept in view that a general demurrer to the declaration is a plea on the merits, and not a dilatory plea; if it were we would, in accordance with our principles, plead over. The Scotch plea on the relevancy, again, while it is substantially a plea on the merits, is preliminary, and in form of a dilatory quality, but in meaning and intention it corresponds exactly to our general demurrer ; it goes to the legal essence of the case, for it is an objection to the sufficiency in substance of the plaintiff's demand. Sometimes the question of relevancy is reserved till the pleadings are closed, a procecding somewhat analogous in principle, with reference to the plea maintained, to our rule of aider by verdict, or the parties consent to take judgment on the record as adjusted, when they are heard on the whole cause.

From this short description the difference in form and effect between English and Scotch judicial allegation may be seen. That difference resides in the design of the manner of statement and in the mode of deriving the issue. The Scotch issue, if it be an issue in fact, is extracted from the pleadings; if one in law, it is not in the same way literally extracted from the pleadings, but is held to be sufficiently presented by their terms. But in neither case is the issue, as with us, necessarily and intrinsically tendered by the pleadings. We must say we prefer our mode of joining issue in point of form. It may, however, be a question whether it be substantially a better one than the Scotch. It is to be observed, that the matter which, according