instance, was matter of progressive evolution. The now thoroughly established distinction in function between the two Houses cannot be made logically perfect; but the requirements of simplification of procedure demand that it should be carried out more completely than has yet been done.

Moreover, although the unification of the Court as the commune forum of Scotland has steadily proceeded during the last two hundred years (the Commission of Teinds having been incorporated with it in 1707, the Admiralty Court, and the Consistorial Court -so far as regards questions of status-in 1830, the Jury Court in the same year, and the Court of Exchequer in 1856), there still survives, under the same roof as the Court of Session, the separate jurisdiction of the Bill Chamber. This separate jurisdiction cuts across the distinction between the Inner and Outer. Houses, and the judges in either Division sit as Court of Session judges or as judges of the Bill Chamber, according to the nature of the case before them. The Bill Chamber was originally designed for the purpose of giving leave, by Bill, to take out what were called "privileged " Summonses in the Court of Session. These were Summonses of an unusual character, or in which the Crown had an interest, or which (in respect of their urgency) required a dispensation from the usual requisites of citation and the like. The Bill Chamber was also employed for the purpose of giving leave to use certain forms of diligence, and to bring advocations and suspensions of the decrees of Inferior Courts in the Court of Session. Traces of these functions still remain in the procedure before it; and the necessity of applying in the first instance to the Bill Chamber for interdicts and suspensions-the case being passed to the Court of Session for trial after interim interdict or suspension has been granted or refused-still remains (anachronism though it be) almost in full vigour. In recent times other powers have been given to the Bill Chamber which will be subsequently referred to; but the usefulness of the Bill Chamber as a Court separate from the Court of Session no longer exists.

While the main principle of distribution of business as between the Inner and Outer Houses is necessarily a functional one, the arrangement of business in the Outer House should, it is thought, follow the distinctions in procedure which are characteristic of and appropriate to the different kinds of proceedings before it.

The jurisdiction of the Court of Session, in cases which originate in it, arises, substantially, in one of two ways either by way of Summons or by way of Petition. The procedure which ensues upon a Summons is very different from that which takes place upon a Petition. The object of a Summons is to enforce a pursuer's legal right against a defender who resists it, or to protect a legal right which the defender is infringing; the object of a Petition, on the other hand, is to obtain from the administrative jurisdiction of the Court power to do something or to require something to be done, which it is just and proper should be done, but which the petitioner has no legal right to do or to require, apart from judicial authority. The contentious character of the proceedings which

D

follow a Summons necessitates a higher degree of formality than is appropriate to an ex parte application such as a Petition, even though opposed; hence the distinction between the "solemn " procedure in an action and the "summary" procedure in a petition.

It seems natural, accordingly, to make a first sub-division of the work of the Outer House between cases originated by Summons and those originated by Petition. No one would think of assigning different judges for these two departments; but a definite division of the Outer House clerical staff between them is plainly pointed to.

Notwithstanding the distinction between the Inner and Outer Houses, as Courts of appeal and first instance respectively, there still remain a few actions which, though initially presented in the Outer House, are passed into the Inner House for disposal there without any judgment by the Lord Ordinary. These are the action of Division of Commonty, and the practically obsolete actions of Division of Runrig Lands, Ranking and Sale and Cognition and Sale. Moreover, all petitions of every kind continued to be presented to the Inner House until 1857 (20 and 21 Vic. c. 56, s. 4) when some of the largest and most important classes of petitions, both under Statute and at Common Law (including Entail petitions, Railways Clauses, and Lands Clauses petitions, and petitions under local Acts, petitions for appointment of factors and curators, and petitions under the Pupils' Protection Acts), were transferred to the Outer House to be disposed of by the Junior Lord Ordinary. Since 1889 (52 and 53 Vic. c. 54. s. 3) these petitions have been dealt with in the Bill Chamber. But, curiously enough, they are still deemed to be Inner House processes; and accordingly they still require to be boxed to all the judges, which involves the expense of printing. By later Statutes, petitions under the Conjugal Rights Amendment Act, 1861, the large class of petitions under the Trusts Acts, 1867-1921, petitions under section 91 of the Court of Session Act, 1868 (see s. 2 of the Act), and under the Married Women's Property Act, 1886 (s. 5), are brought before any Lord Ordinary. There is a further undefined class of petitions which are usually presented to the Outer House-e.g. for the appointment of a Judicial Factor under the Bankruptcy (Scotland) Act, 1913, and for the recal of factorial appointments generally. But all other petitions—and their name is legion (see Mackay's Manual of the Practice of the Court of Session, pp. 528-30)-including the large and important class of petitions under the Companies Act, 1908 are presented to the Inner House.

The result is (1) that, while the vast majority of actions initiated by Summons are appropriated in the first instance to the Outer House, a few still belong to the Inner House, (2) that Petitions are presented partly to the Outer House and partly to the Inner House, (3) that of the Petitions presented to the Outer House some go to the Junior Lord Ordinary in the Bill Chamber and some to any Lord Ordinary in the Court of Session, and (4) that some kinds of actions have to begin in the Bill Chamber and can only reach the Court of Session by passing through it.

We think that a considerable gain in simplicity and economy

would ensue from the following changes. First, we think the specialties at present affecting actions of Division of Commonty, and the other-practically obsolete actions above named, should be done away with; and that the procedure in them should be the same as in any other action initiated by Summons in the Outer House. Second, we think that-with the exceptions hereinafter mentioned--all proceedings should be initiated either by way of Summons in the abbreviated form recommended in Chapter VI of this Report, or by way of Petition. Even as regards the numerous forms of Letters still in use (Arrestment, Inhibition, etc.-see Juridical Styles, Vol. III., pp. 269-394), we think a simple form of Petition might be advantageously substituted for the older styles. Third, we think that the Bill Chamber should be abolished, all Summonses and Petitions being brought before the Outer House. Suspensions (whether original, or brought for purposes of review), Suspensions and Interdicts, and Suspensions and Liberations are in the nature of actions rather than of petitions, and should no longer proceed on Notes (presented as at present in the form of Bills to the Bill Chamber), but on the proposed abbreviated form of Summons. Any interim orders required could be obtained just as easily on presentation of the Summons to the Court of Session as on presentation of the Bill to the Bill Chamber. In all cases in which, under law or statute (e.g. 31 and 32 Vic. c. 54; 31 and 32 Vic. c. 101), application is directed to be made to the Lord Ordinary on the Bills, it would be necessary to substitute "any Lord Ordinary" for "the Lord Ordinary on the Bills," and all applications at present disposed of by the Clerk of the Bills would require to be transferred to the proposed Petition Department (see Chapter VI) of the office of the Court of Session.

The result of giving effect to these changes would be to transfer the whole original jurisdiction of the Court to the Outer House, with as few exceptions as possible; and to leave the Inner House free to devote itself, as exclusively as possible, to its proper work as a Court of Appeal from the Outer House and all Inferior Courts and Authorities.

First among the exceptions referred to are Special Cases" under section 63 of the Court of Session Act, 1868, which must of necessity be initiated in the Inner House, inasmuch as their utility depends in large measure on immediate access to the Inner House. Secondly, there is the class of applications known as Petitions and Complaints in respect of breach of interdict, contempt of Court, official default, and the like. Some of them are statutory (see, e.g., 8 and 9 Vic. c. 83, s. 87; 60 and 61 Vic. c. 38, s. 147; 9 Edw. VII c. 44, ss. 53 and 67). These stand in a highly special position, and some of them are both historically and actually the means by which the criminal or quasi-criminal jurisdiction of the Court of Session is exercised. It is thought that this function of the Supreme Court can be appropriately performed by the Inner House alone. Thirdly, there is a group of petitions respecting law-agents and notaries-public-partly for admission to office and

partly for deprivation of it--which for similar reasons should, in our opinion, remain in the Inner House. They arise for the most part under 36 and 37 Vic. c. 63, ss. 1, 14, 18, and 22; 59 and 60 Vic. c. 49. Fourthly, there are petitions such as those connected with Appeals to the House of Lords-which arise incidentally to a process already in the Inner House: these should obviously be presented in, and disposed of by, the Inner House as at present. Fifthly, there are petitions presented to the Inner House under 22 and 23 Vic. c. 63, and also petitions under 6 and 7 Vic. c. 82, 19 and 20 Vic. c. 113, and 22 Vic. c. 20, all of which are in the nature of applications by the Courts of other countries for assistance from the supreme jurisdiction of the Court of Session, which should, we think, remain Inner House processes. Lastly, there is a class of petitions which specially involve resort to the "nobile officium" of the Supreme Court. The jurisdiction of this kind exercised at present by the Inner House with regard to (1) Charitable Trusts and similar Endowments on the principle of approximation (or cy près), (2) with regard to Educational Endowments under the Endowed Schools Commission, (3) with regard to casus improvisi occurring in trusts and under statutes, and (4) with regard to interim appointments of indispensable officials, could not, we think, be expediently committed to any one of a plurality of single judges. Questions of this kind not infrequently occur incidentally to petitions that are otherwise appropriate to the Outer House, with the result that inconvenience is experienced in disposing of them either piecemeal or wholly in the Inner House (see, e.g., Prime Gilt Box Society, 1920, S.C. 534; Anderson's Trustees, 1921, S.C. 315). In such cases we think that, while the Lord Ordinary should make any enquiry he thinks necessary by remit or otherwise in the first place, he should be directed to report the petition thereafter (verbally or in writing) to the Inner House in either Division, and that the Division should then either dispose of it or give instructions to the Lord Ordinary with reference to it. Procedure by report is a familiar feature of Court of Session practice in suitable cases, and involves but little extra expense. In all other kinds of petitions, even though implying a resort to the nobile officium (e.g. a petition for removal of a trustee), we think the procedure should be that which is ordinarily followed in Outer House petitions.

The next point is as to the distribution of work (1) between the two Divisions, and (2) among the Lords Ordinary in the Outer House.

As matters stand, separate rolls are kept by separate rollkeepers and there are also separate clerical staffs-for each Division, for each Lord Ordinary, and for the Bill Chamber. There are thus eight distinct rolls and staffs altogether.

The pursuer of an action originating in the Court of Session has at present the right to "mark" his case to any of the Lords Ordinary and to either of the Divisions he chooses to select. He does this by means of the partibus on the Summons, a copy of which has to be lodged at calling. The pursuer's right depends (so far as statute

is concerned) on 48 Geo. III c. 151, s. 9; and 1 and 2 Vic. c. 118, ss. 1-4. Again, an appellant to the Court of Session from an Inferior Court has in like manner the choice of which Division is to hear his appeal (31 and 32 Vic. c. 100, s. 66). In suspensions, it is the respondent who (under 13 and 14 Vic. c. 36, s. 33) has the right (subject to certain exceptions) to fix both the Lord Ordinary and the Division before whom the case will come, on being passed into the Court of Session from the Bill Chamber; but, if he fails to use this right, it is transferred to the Complainer (31 and 32 Vic. c. 100, s. 90). These various statutory provisions are reflected in the corresponding parts of the Codifying Act of Sederunt.

This system of “marking "—as it is called-probably arose out of the gradual changes by which separate Divisions and separate Lords Ordinary came into being. When it came about that cases were no longer presented to the Court of Session as an undivided whole, it may have appeared to be reasonable to leave to the party presenting a case his choice of Division and Lord Ordinary. Another reason for it—particularly in the case of suspensions may have been to facilitate selection of that Court which (from the state of business before it) would be likely to afford most despatch. But it is not altogether easy to justify, on merits, the giving to one of the parties-to the exclusion of the other -the right to select a particular Division or a particular Lord Ordinary. Some judges naturally have greater familiarity and experience of certain kinds of work than others, and it is right that this fact should weigh in the distribution of work among them. But the selection of a particular judge or judges on this ground should be a matter for the internal administration of the Court itself, instead of being left to the casual operation of choice by one of two parties equally concerned.

The defects of the system do not end with the multiplication of staffing and roll-keeping. What is even more important is that control over the distribution of judicial business is lost, and the distribution itself is rendered irregular. Congestion or broken time occurs in one Court or another and avoidable delay and waste of judicial power are the results. One Division may have cases undisposed of which were presented to it twelve months ago, the other may be nearly abreast of its work one Lord Ordinary may have a swollen Procedure Roll which he cannot overtake, and may be fixing proofs six or nine months ahead, while another has earlier vacant dates which cannot under present conditions be used to relieve this pressure. As a remedy for this state of things, the existing powers of transfer conferred by Act of Parliament upon the Lord President are exercised as freely as circumstances permit. But they provide no more than a palliative for the mischief, which springs from the work of the Court being broken up among so many rolls and separate offices. Until control over the whole business of the Court is administratively unified in one office, under one or two office heads-the work being sent out to whichever Division and to whichever Lord Ordinary is available for the time being to take it the conditions necessary for the proper organisation of