proper concern for its own interests. It is not surprising that this should be so in a small profession; and probably its tendency to suppress itself has increased in late years with the growth of the illegitimate practice of getting business through the friendship and patronage of successful advocates. This is a matter which can be corrected, if at all, only by a restoration of certain old etiquettes, -unless indeed the prevailing but suppressed disapprobation of the practice may be removed by the entire abolition of the prohibition of canvassing for business. But apart from this question the Junior Bar, if it could be defined as a body by such arrangements as exist in England and Ireland, would probably acquire such courage and quasi-organization as to make its rights more respected and its interests more regarded than they are at present. We print in full for its edification the following report of a description which occurred lately in the Court of Queen's Bench in Ireland: where, as in England, it is a rule of old standing that in arguments in banco there should be a Junior on each side:"Mr. A. J. Nicolls, addressing the court, said-I deem it right, my Lords, to interpose at this stage, upon a point touching the privileges and rights of the Junior Bar. The matter before your Lordships is brought into court by a case stated for your opinion under the 20 & 21 Vict. c. 43. One member of the Senior Bar has addressed you, my Lords, on behalf of the respondent, and my friend, Mr. Monahan, Q.C., now seeks to follow on the same side. This is irregular. The proceedings are in the nature of a law argument, and this being so there should be a junior employed upon each side. The matter seems to be concluded by authority, and by a decision of the late distinguished Lord Chief Justice of this court. The decision I refer to was in the case of Reg. v. Brophy (9 Ir. C. L. Rep.), and it seems to be completely in point. The Lord Chief JusticeWhat does that case say, Mr. Nicolls? Mr. Nicolls-It was a case stated under the 20 & 21 Vict. c. 43, s. 2, and upon an objection similar to mine being made, Lord Chief Justice Lefroy is reported to have said that the proper course to follow is that adopted in law arguments. There must be a junior counsel on each side, but the order in which the counsel speak is a matter to be arranged by themselves. The Lord Chief Justice-This is an important point of practice, and has been very properly brought before us by Mr. Nicolls. I am always anxious to maintain the rights of the Bar, and glad to have the assistance of juniors, because they generally argue law points carefully and well. Why did you not make the objection earlier? Mr. Nicolls-I have not been in court long, my Lord; and besides I did not wish to interpose until a second Queen's counsel was about to address the court for the respondent. Mr. Justice Barry-The practice in England goes to show that the objection is well founded. The Lord Chief Justice-Very well, Mr. Nicolls, we shall consider the matter, but we will not refuse to hear Mr. Monahan now. Mr. Nicolls-Your Lordships will have

to decide the point, and lay down a rule for other cases; that is the value of the objection. The Lord Chief Justice-We will look into the law as established by custom, and I shall consult my brother O'Brien before we decide."

The Solicitors in the Supreme Courts on Outer House Business.— We have before us three reports of this learned, public-spirited, and active society, which only the presence of other matters prevents us from noticing with the fulness they deserve. Keeping two of these documents (on the Law Courts Commission Reports and on the Law Agents Bill) for fuller notice hereafter, we observe that the Report on the late Act of Sederunt objects to the penalties imposed on clients for the failure of counsel to attend at the calling of cases in the Outer House. It is certainly a hardship that clients should suffer for the culpable greed of the counsel whom they choose to employ, and who chooses to accept employment in cases to which it is certain that he cannot attend at the proper time. It may be said that clients however, or their agents, have themselves to blame if they employ men who will not undertake to be present where duty calls them; and none know the true cause of the evil better than the Solicitors. We believe indeed that the real cause of the monopoly enjoyed by a few men is rather in the ignorant eagerness of some country practitioners to have certain counsel in their cases than in any similar eagerness in Edinburgh agents. Be that however as it may, we agree with the Solicitors that the only effectual remedy has not yet been applied. That remedy is the system of peremptory calling of a few cases put out in each day's roll, which was recommended by the Faculty of Advocates in their recent report, but for some unknown reason has been as yet disregarded by the Court. The Solicitors regard the regulations of the late Act as so unjust that they believe, and we fear with some reason, that the Judges in the Outer House will be slow to act on them; and they go on to say

"It is impossible to blame litigants for selecting the counsel considered by them most capable of conducting their causes, and the real source of the evil is that counsel habitually accept fees for the discharge of duties which they are unable to perform; and the regulations under which the business of the Court has hitherto been conducted are so framed as directly to conduce to this result. So long as counsel are in the habit of accepting fees which may bind them to attendance at six different Bars at the same time, the business in the Outer House cannot be conducted as it ought to be. What the Council therefore recommend is, that the Society should approach the Court with the view of suggesting that something should be done to put a stop to this anomaly. There could be little difficulty in so arranging the Outer House business as to prevent a few leading counsel engrossing nearly the whole of the practice. While that system continues, the greatest dissatisfaction must constantly arise, and no remedy will suffice that permits of the continuance of this evil. The suggestion is not a new one, that the Outer House Judges should put out a limited number of debates on specific days, and that counsel should be obliged to go on when the case is called. If this were done, then counsel could only take fees for such cases as they might reasonably expect to attend to when called."

These are views on which we have often had occasion to insist,

and it is to be hoped that some way will be found of pressing them once more on the Court.

The Solicitors concur with the general feeling of the Faculty of Advocates in regard to the present defective arrangments as to proofs. They say—

"The other matter above referred to, which the Act of Sederunt does not touch, is the mode in which those cases are dealt with, in which Proof is taken before the Lords Ordinary. The change from the old mode of taking Proofs by Commission has been a most beneficial one, and it will be unfortunate if the new system is so wrought as to afford any grounds for recurring to the old system. When a Lord Ordinary devotes three or four days a week to taking Proofs and hearing discussions upon them, the effect is to give these cases a preference over the cases standing in the Debate and Procedure Rolls. It is most desirable to facilitate the despatch of business; but the Lords Ordinary have two blank days in each week, and the Council would respectfully suggest that those days, along with a sufficient number of days periodically in each month, might be devoted to taking Proofs. Any arrears could be wiped off during the Christmas Recess, -the blank week in February,—and by a few extra sittings at the close of each Session."


ARCHIBALD SMITH, Esq., F.R.S., of Jordanhill, Renfrewshire, and of Lincoln's-Inn, barrister-at-law, died at his residence, Riverbank, Putney, December 26th, in the sixtieth year of his age. He was the eldest son of the late James Smith, Esq., of Jordanhill (who died in 1867), by Mary, daughter of Alexander Wilson, Esq. He was born in 1814, and after studying for some time at Glasgow University, he entered Trinity College, Cambridge, in 1832. He graduated B.A. in 1836, as senior wrangler and first Smith's prizeman, and was afterwards elected a Fellow of his College, and took the degree of M.A. About this time Mr. Smith was an unsuccessful candidate for the chair of Astronomy at Glasgow. After declining an offer of employment at the Observatory at Greenwich, he was called to the Bar at Lincoln's-Inn in 1841. He practised for many years as an equity draughtsman, and became an eminent Real Property lawyer. He devoted his leisure, however, to mathematical studies, and his contributions to science were of great practical value. Upon the recommendation of a joint committee of the Royal Society he was employed by the Government to execute a magnetic survey of the Antarctic regions; and in connexion with these inquiries he made a series of researches relative to compass deviations, which were published about ten years ago, under the title of "Admiralty Manual for the Deviation of the Compass," which was subsequently republished and translated into various languages. As a recognition of his scientific labours he received from the Royal Society one of its royal medals, and from the Emperor of Russia a compass set VOL. XVII. NO. CXCIV.-FEB. 1873.


with diamonds. Her Majesty's Government, still more recently, requested his acceptance of a gift of £2000, not as a reward, but as a mark of their appreciation of the value of his researches. In 1859, when a vacancy occurred in the representation of the University of Glasgow, by Mr. Moncreiff's appointment to the office of Lord JusticeClerk, Mr. Smith offered himself as the Liberal candidate, but was defeated by Mr. Gordon, Q.C. Mr. Smith married in 1853 Susan Emma, daughter of the late Vice-Chancellor Sir James Parker, of Rothly Temple, Leicestershire, who survives him. He has left a family of six sons and two daughters.

R. J. WILSON, Esq., Joint Procurator-Fiscal, Airdrie, died at Greenvale Cottage, Airdrie, January 5th, aged 47.

JAMES CARMICHAEL, Esq., Solicitor, Hawick, died at Bridge House, Hawick, January 6th.

JOHN KEMP, Esq., Solicitor, died at Maxwelton Villa, Kinnoull, Perth, January 17th. Mr. Kemp had extensive practice as a solicitor, and he took an active part in burgh affairs. He was for many years a member of the Town Council, and successively appointed treasurer and bailie, and from November 1864 to November 1867 filled the office of Lord Provost of the city with great ability, and gained the high approval of his fellow-citizens. was a staunch Whig of the old school, for many years was the agent of the Liberal party in the burgh of Perth, and his judgment and tact were of much use to his party. For a good many years Mr. Kemp filled the office of Registrar of Sasines for the county of Perth. He was about 60 years of age, and unmarried.




To the Editor of the Journal of Jurisprudence.

SIR,-While the Commission on the Scottish Law Courts was sitting in Edinburgh, I happened, for half an hour or so, to tread the boards of the Outer House, in company with one of the Scotch Sheriffs. In such a situation one must talk,-the genius loci requires it, and in the course of our peripatetic conversation, I ventured, half in joke, half in earnest, to suggest the following scheme of judiciary reform for the northern end of the island. First, let the whole existing staff of judges-ordinary, comprehending Sheriffs-Substitute, Sheriffs-Principal, and Lords-Ordinary, be abolished as to the offices, but preserved as to the men now filling them, for utilization in the new arrangement. Secondly, let the kingdom, including Fife, be divided into districts, each affording a sufficient amount of judicial

work to employ, but not overtask, the energies of a single judge, and let the functionaries just mentioned be appointed resident judges in those districts, before whom, in the first instance, shall be tried all causes of whatever kind, civil or criminal, important or unimportant, except perhaps the four pleas of the Crown. If there be any surplus of judicial power after the districts have been all supplied, so much the better. The more aged officials might be allowed partially to retire on full salaries, upon condition of their taking occasionally the place of their more active brethren, when any of the latter required a little relaxation, or found it necessary, from whatever cause, to be temporarily absent from their beats-an arrangement worth paying for, in supersession of the present absurd system of appointing extraordinary Sheriffs-Substitutes, who know no more law than what the Clerk of Court puts into them. Thirdly, the existing Justices of the Peace might be allowed, for some time, to continue to deal with poaching and public-house cases, and the like, till the new Courts had had a fair start, leaving it for future consideration whether there should be separate judges, especially in large towns, for disposing of these, or whether they should be merged in the general work of the new judges-ordinary. Fourthly, in every case, let there be a right of appeal from the decisions of the district judge, conditional in civil causes of small value, and in petty criminal matters, upon the judges allowing such appeal, to one of the Divisions of the Court of Session, as at present constituted. The merits of this scheme appeared to me to be manifold. It extinguished nobody; it left salaries and dignities untouched for existing incumbents; and it would in the long-run either allow those salaries to be made more commensurate with the position of the judges than in some cases they are now, or would permit the Chancellor of the Exchequer's economical propensities to receive a moderate gratification. It rendered necessary the smallest possible amount of change in the forensic personnel of the country, and it minimized the number of steps which litigants must climb ere they can reach the highest pinnacle of the Temple of Justice.

The learned Thane in whose company I was proud to find myself for the time thought the scheme rather windy, and I left it behind me in the atmosphere of the Parliament House, to which it owed its birth,-in other words, thought no more of it. Imagine my surprise when I saw in the Times of the other day (Dec. 21, 1872), that Mr. Vernon Harcourt had been propounding a somewhat similar scheme for England, on which the Thunderer nodded his approval. I felt a mighty inclination, like my old friend Quintus Horatius Flaccus (alas! now too seldom consulted), in his "Ad Macænatem," to have a shy at the stars. Of course, the Times and Mr. Vernon Harcourt are irresistible. Let us hope, that when England has by their united exertions been put to rights, the idea of assimilation, sometimes not very fortunately applied in the past, will not be lost sight of-Yours, etc.

Dec. 25, 1872.

J. C.

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