have no particular judge or judges assigned to them. At first there was a specially nominated commercial judge; but, as the institution developed, this arrangement was not found convenient or practicable. For the reasons discussed above, and in Chapter III, we do not think it would be found to be advisable in the Court of Session.

The first specialty of procedure we suggest applies to maritime collision cases only. It has already been referred to, and consists in the adoption from English practice of the Preliminary Act. We think the first and indispensable step in al maritime collision cases-apart from the service of the summons-should consist in the lodging by the pursuer and defender respectively of a Preliminary Act-that is to say, an official schedule (see Appendix No. VIII) in which specific information upon a series of important points (selected as being those upon which most collision cases turn) is asked, and which each party has to fill up before lodging. The Summons should be unaccompanied by any Condescendence or Pleas-in-Law, but should refer to the fact of the collision and to the statements made, or to be made, in the pursuer's Preliminary Act, when lodged. The defender's Preliminary Act should be lodged thereafter instead of the usual Defences, but unaccompanied by any formal pleadings. As lodged, both Preliminary Acts should be enclosed in sealed enclosures so that neither party can have access to the other's Act. After both Acts have been lodged, the enclosures should be allowed to be opened, and their contents made available to both parties. We think it would be found in many instances-as it is found in English practice that the points in controversy between the parties become immediately and sufficiently apparent; in which case the action is ready for proof, without any further formalities, as soon as the parties can produce their witnesses. In less simple cases, pleadings would no doubt be required; but these should neither be ordered nor allowed by the judge until after the Preliminary Acts have been opened and exchanged between the parties. Whether such pleadings are put in or not, the statements of the parties, as contained in their respective Acts, should be binding upon them and not capable of being subsequently repudiated. If pleadings are ordered or allowed, they should take the form of a Condescendence and Defences and relative Pleas-in-Law, but should be peremptorily confined to matters not covered by the statements in the Acts. These provisions are essential for achieving the effect described by Dr Lushington (The Vortigern, 1859, Swabey, p. 518)—namely, to obtain from the parties statements of the circumstances of the collision recenti facto, and to check the tendency of the opposing ships' companies to distort those circumstances in pleadings subsequently adjusted between the parties, or to disavow or modify them by prepared evidence.

The remaining specialties we propose in the procedure of Commercial and Admiralty cases apply to all causes whatsoever on the List.

In the first place, while, primarily, all the rules of procedure

applicable to ordinary actions should apply, we think the judge in the Outer House should have unlimited control of the procedure, with power to dispense with exact observance of any of the ordinary rules and to order such special procedure as may, in the circumstances presented to him, best conduce to simplicity and despatch. An example of these powers is provided in the suggestions made above for the introduction of the Preliminary Act, according to which it would be competent for the judge to dispense with anything in the shape of formal pleadings beyond the parties' Acts. It is thought that wide powers of the kind indicated above might be advantageously used to assist in the rapid presentation of cases for trial. It should, for example, be competent for the judge at any stage to order particulars, and to make the minute containing them part of the Record without formal amendment; and he should have power to require a party to admit or deny important statements of fact by his opponent, and to penalise an unwarranted denial with any expenses incurred by the opposite party in consequence of it. He should also be free at any stage to order production of documents in the hands of either of the parties (and, if he thought it necessary, to require an affidavit by the solicitor or solicitors that the production is complete), instead of proceeding by way of formal Commission and Diligence for their recovery. He should also have power to dispense with the induciæ of service, if the defender has lodged his Defences within them, and to close the Record at once: in this way, a case which turned on the simple construction of a mercantile document might be ready for debate within a few days of acceptance of service. It will be seen that the idea is not to prescribe a new code of procedure for Commercial and Admiralty cases, but to enable both the judge and the parties before him to co-operate in the rapid and inexpensive disposal of business, by whatever methods the judge approves, and without being rigidly tied to the formal steps of ordinary judicial procedure. The responsibility thus placed on the judge would be a heavy one, but we think the wide forensic experience gained by men who attain to the Bench of the Supreme Court should enable them to discharge it successfully. The amount of advantage which litigants would gain by these innovations must, however, largely depend on their willingness to avail themselves of the facilities which would thus be placed within their reach. Except within narrow limits, it would be neither possible nor expedient to compel parties to depart from the ordinary rules of procedure in favour of a course the reasonableness of which, in the circumstances, might commend itself never so highly to the judge. What is possible as the result of giving the Court the wide powers suggested above-is to make room for, and to encourage, a spirit of accommodation in the conduct of mercantile litigation. As the witness already referred to told us: "It is this 'spirit of accommodation, rather than any written rules or "regulations, which has ensured the great success of the Court; "and the judges, advocates, and solicitors have co-operated in that "spirit."

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In the second place, we think it should be made competent for the judge to dispense with the technical rules of evidence. This is a delicate matter; and, however experienced the judge, the power should be incapable of exercise except by consent of both parties. As in the department of procedure, so in the department of evidence the ordinary rules would, primarily, bind the judge and the parties in a case on the proposed Commercial and Admiralty List, as in any other case. All we propose is that it should be possible, provided that both parties agree in that course, to prove a fact by evidence which the judge thinks might in the circumstances be fairly used for that purpose, although it be strictly inadmissible in an ordinary Court of Law. For instance, the oral examination of witnesses whose attendance can only be secured from abroad at great expense is a fruitful source of delay and cost in Commercial and Admiralty cases. But, if the facts to the proof of which such oral examinations would be directed appear in correspondence or in contemporaneous documents, it should, we think, be possible for the parties to agree to accept such secondary adminicles, and for the judge to dispense with the primary evidence. This course appears to be freely adopted in the English Commercial Court and to work well. We do not propose that proof by affidavit should be made competent in any circumstances. The remarks made at the close of the immediately preceding paragraph apply with even greater force to the recommendation just made.

We think it would greatly facilitate the spirit of accommodation we have in view if it were made the practice for Junior Counsel on each side, before any part of a proof is led, to make a speech outlining the facts of the case and the main contentions of his client. It might then be seen to be unnecessary to prove many points (upon which parties were agreed) and the proof would be limited to elucidation of the essential matters in dispute between the parties. We repeat this suggestion in Chapter VI with reference to ordinary actions, but we think it is specially applicable to Commercial and Admiralty cases.

In the third place, we think that, in any case on the Commercial and Admiralty List, the judge should have power, if he thinks fit, to call in an expert Assessor to sit with him, and should be bound to call in such an Assessor if both parties concur in so moving. This is already the rule in Maritime cases (57 and 58 Vic. c. 40, s. 2). It is also the rule in Patent cases (7 Edw. VII c. 29, s. 31 (1) and Schedule to 9 and 10 Geo. V c. 80); but we do not propose that Patent Cases should be placed on the Commercial and Admiralty List. The general provisions of the Acts referred to with regard to the calling in of Assessors, their functions, and remuneration, should be made to apply. It is likely that resort to the assistance of an expert Assessor would not be frequent in Commercial cases; but we think that in some of them-particularly in those in which questions of commercial usage occupy a prominent place-the power to call in an Assessor would be of advantage in restricting the length of the proof;

Lastly, we think it should be competent for the parties to agree by joint minute, at any time before proof, or if the case can be disposed of without proof-before hearing, that the decision of the Outer House judge shall be final.

Admiralty cases may be said to define themselves. All of them should be placed on the proposed List, as soon as the Summons is lodged, by the Keeper of the Rolls. Commercial cases, on the other hand, form a class which is incapable of precise definition. Generally, it may be described as including all cases arising out of the ordinary transactions of merchants and traders-amongst others those relating to the sale of goods, the hire of moveables, liens, mercantile agency and mercantile usages, the export or import of merchandise, affreightment and marine insurance, and the construction of mercantile documents. All cases coming within any of these categories should, in the same way as Admiralty cases, be automatically put on the proposed List and published in that position in the Rolls of Court, subject to the right of either or both of the parties within a short period after publication to apply by motion in the Outer House for transfer to the Ordinary List. In like manner it should be competent to either or both of the parties to a case which has not been put on the proposed List, but which is thought properly to belong to the class of Commercial Cases as above described, to apply for transfer to the Commercial List.

Unless the parties agree to accept the Outer House judge's decision as final, appeal to the Inner House should lie in the same way as in ordinary cases; and in the Inner House the procedure in such appeals would follow the usual course.

We recommend :

(1) THAT A SEPARATE LIST AS DESCRIBED ABOVE FOR COMMERCIAL AND ADMIRALTY CASES SHOULD BE ESTABLISHED.

(2) THAT THE PRELIMINARY ACT SHOULD BE INTRODUCED

AS A COMPULSORY STEP OF PROCEDURE IN ALL MARITIME COLLISION CASES;

(3) THAT IN ALL CASES ON THE PROPOSED LIST THE JUDGE

AND THE PARTIES RESPECTIVELY SHOULD HAVE THE POWERS AND FACILITIES ABOVE DESCRIBED;

(4) THAT IN ALL CASES ON THE PROPOSED LIST THE PROOF SHOULD BE PRECEDED BY SPEECHES OF JUNIOR COUNSEL ON BOTH SIDES WITH A VIEW TO INFORMING THE COURT OF THE LIMITS WITHIN WHICH THE EVIDENCE TO BE LED COULD BE CONFINED.

CHAPTER VI.

ORDINARY FORMS OF PROCESS AND PROCEDURE IN THE OUTER HOUSE.

1. Procedure in Actions-Form of Summons-Its Essentials-Proposed Simplified Form (see App. No. IX)--Warrants for Diligence on the Dependence and for Arrestments to found Jurisdiction-Signing and Signeting of Summons-Edictal Citation-The Induciæ, Calling, Entry of Appearance, Time for Defences-The Open Record-Adjustment The Closed Record -Counter-claims-The Motion Roll-Incidental Motions should be made in Writing on a Motion Sheet, and if uncontested could be disposed of in Chambers-Recovery of Documents by Commission and Diligence-Procedure Roll-Proofs-Fixed Diets and their abuse-Opening Speech by Counsel suggested-Separation of Proof on merits from Proof of amount.

2. Procedure in Petitions-Form of Petition-Motions-Remits, some of which might be made to Clerks of Court.

In dealing with the forms of process and the details of procedure in the Outer House, it will be convenient to consider in the first place those proceedings which are initiated by way of Summons, and in the second place those which are initiated by way of Petition. The distinction between these two classes has already been explained in Chapter III, and is fundamental to the recommendations therein made for the rearrangement of the business of the Court.

1. PROCEEDINGS INITIATED BY SUMMONS.

Form of Summons.-The present form of Summons is regulated by 13 and 14 Vic. c. 36; and by relative Acts of Sederunt, now consolidated by C.A.S., C. i. 1; C. iv. 4 (a); C. i. 3 and 4. The power of the Court to modify, by Act of Sederunt, the styles set forth in Schedule A to that statute has all along been, and still is, severely limited by the provisions of section 1, in accordance with which any modification must have regard to the prescribed forms. The forms now in use are lengthy and redundant without being easily intelligible to any but a trained practitioner ; and involve fruitless expense in making the necessary copies, whatever form of reproduction may be employed. They begin with an "address" in the name of the Sovereign to Messengersat-arms, by whom in former times the service of the summons was uniformly made. Nowadays service is frequently effected by registered letter through the Post Office (34 and 35 Vic. c. 42, extended by 45 and 46 Vic. c. 77). Next comes the "instance,' which recites that A, the pursuer, has presented to the Sovereign a grievance against B, the defender, in terms of an articulate Condescendence (or summary of the facts of the dispute) and a Note of Pleas-in-Law (or summary of legal grounds for remedy) annexed to the Summons itself. Next comes the "conclusion," in which the decree thought appropriate to follow as a remedy