ہوں REPORTS OF CASES DECIDED IN THE. COURT OF SESSION, TEIND COURT, COURT OF EXCHEQUER, COURT OF JUSTICIARY, AND IN THE HOUSE OF LORDS, FROM 11th NOVEMBER 1851 TO 20th JULY 1852. BY ROBERT STUART, JAMES S. MILNE, AND WILLIAM PEDDIE, WILLIAM PATERSON, ESQUIRE, BARRISTER-AT-LAW, PREFACE. In completing the first volume of these Reports, the authors have to express their gratification at the reception they have met with, throughout the past legal year, from the different branches of the profession; a reception by which their labours have been sustained, and by which they are encouraged to persevere in a work which has thus been allowed a place in the legal library. They had, from the first, reason to hope for some measure of support, and the kind consideration they have received so generally, with the numerous and influential names that already at the outset constitute their list of subscribers, proves how well-founded were their expectations. Were they disposed to enter on an examination of the grounds on which they have ventured to come before the profession, there are ample means within their reach for shewing the nature of the services they propose to render to the law and its practice. But they have already intimated that any such critical explanation is in their opinion unsuitable. Yet, at the conclusion of this their first volume, they may be allowed to offer some general reasons for their juridical existence. Mere novelty of enterprise they repudiate. Nor, if there may be observed in the style of these Reports, any marked change from former methods, can it, they hope, be said that they have laid themselves open to the charge of unnecessary innovation. The law itself having been reformed, and its administration simplified and im proved, it seemed fitting that some attempt should be made to accommodate the form of the reported case to the professional habitudes that had grown upon the adoption of the new practice; and the report that might have suited the leisure of the study, and the peculiarities of written argument, seemed but ill adapted to the exigencies of that despatch by which the business of the Courts is at the present day distinguished. By the form and system of these Reports then, it has been sought to afford a judicial aid that appeared to be demanded by the spirit, at least, of recent changes; and although the authors may not have yet succeeded in fully carrying out their design in all its features and details, (as they hope still to do) they have reason to believe its utility has been admitted by the legal body generally, whose labours it is their ambition to facilitate. The object of the Law Report is to promote the certainty of the law; and to be useful under all the calls of professional business, its form should be characterized by clearness of arrangement, by terseness and precision, so that concise in method, and comprehensive in meaning, it may communicate the whole case in its full application. "Descriptio legum" says Lord Bacon, "obscura oritur, aut ex loquacitate et verbositate earum; aut rursus ex brevitate nimia; aut ex prologo legis cum ipso corpore legis pugnante," a saying from which may be deduced a rule for the correct form of the legal statement. To exhibit the record in its pure form-to select such portions of the pleadings as are material and relevant to the point or points to be reported to separate the law from the factto distinguish matter of averment from argumentative matter, and that which is of the nature of evidence-to present, * De fontibus juris, Aphorism 65. by the proper arrangement of these parts of the case, the peculiar question or questions on which the litigants are at issue-to make the legal controversy, thus clearly ascertained, to be briefly and sufficiently spoken to by the argument from the bar-and finally, to set forth the judgment of the Court, with the grounds on which the Judges have arrived at it-in short to make the Law Report the true exponent of the actually administered law, both in form and substance, is at once to describe its office, and to demonstrate how we may affect by it that great legal desideratum which the well-noted precedent can alone supply. The importance of these considerations must, it is thought, appeal to the experience of every practitioner. To him indeed, and to all concerned in the administration of the law, the characteristic value of the Law Report cannot be over-rated. The legal certainty, the identity of procedure, and the continuity of rule and principle which it secures, have been too long recognised to render necessary, at the present day, any vindication of its authority. It is an expedient that concerns the integrity of the law, the learning of the Bar, the justice of the Court; and which, therefore, involves in the faithful discharge of the duty it imposes a responsibility of the most serious nature. The reporters were sensible of the labour and difficulty they had to encounter in any attempt to satisfy the severe conditions of that responsibility, and their work may, as yet, have fallen short of their own expectations. But knowing, as they believe they do, what the mind of their brethren, and of the profession generally, on the subject of these remarks is, and convinced that, in the views they have declared, they will be supported by the opinion of every practical lawyer, they shall hope to com |