to print the "Open Record" within eight days after the lodging of Defences; and, not less than four nor more than six days after the pursuer has lodged the print, the case comes out in the Rolls for adjustment and closing of the Record. In this way the better part of a fortnight is consumed. But continuations are frequently moved for and granted, and are perhaps too often repeated upon urgent representations made on behalf of the parties on various grounds, which sometimes reflect genuine difficulties in collecting the necessary information, but sometimes only cover a lack of promptitude on the part of those who represent one or both of the parties. The abolition of the requirement of printing which we recommend in Chapter IX opens the way to a certain economy of time, but leaves unsolved the real problem of delay due to the above cause. Several suggestions were made in the course of the evidence for introducing something in the nature of a time-table for the various stages of adjustment, and one attractive proposal was to allow a fixed time for the interchange of adjustments at the expiry of which the Record would become automatically a "Closed Record," a copy of which the pursuer would be required to lodge in process forthwith, and which could only be amended subsequently with leave and, if the Court thought fit, on terms. After much consideration we have found ourselves compelled to the conclusion that no effective remedy-perhaps no remedy that would not be worse than the mischief complained of-is to be found in rigid and peremptory regulations. The matter is essentially one in the hands of Counsel and the Edinburgh and local agents who act for the parties. In a case of real difficulty no good purpose would be served by forcing a closure when, in fact, the pleadings are incomplete; and there is a considerable gain in the provision of facilities for full deliberation at the initial stages of a litigation. The function of the Court must, we think, continue to be that of refusing continuations unless good cause is shewn, and allowing them in cases in which they appear to be justified by special circumstances. The nearest possible approach to a solution of the problem of delays incident to adjustment lies in a searching enquiry by the Court into all requests for continuations. No tradition of formal acquiescence in such requests should be allowed to establish itself. If all parties know that the Court will be consistently reluctant to grant continuations and highly critical of requests for them, abuses of the privilege will gradually be eliminated. Custom rather than regulation is the appropriate remedy.

While this is the general opinion we have formed on this difficult matter, we think the amplitude of present-day postal facilities, the increased means of reproducing copies now available, and the dispensation with the necessity for printing, warrant some tightening up of the procedure which precedes the Closing of Records. In a very large proportion of cases, seven days is ample time in which to reach the stage of final adjustment, and we think that all cases should be automatically put out in the Adjustment Roll for Closing on the earliest available day-not earlier than

the eighth-after the expiry of the time for lodging defences, the pursuer being required to lodge a copy of the Open Record not later than three days after the expiry of the said time.

Counter-claims. In all cases in which the defender alleges a counter-claim in his own favour, arising out of the matters founded on by the pursuer, it should be competent for the defender to enforce such counter-claim against the pursuer without the necessity of raising a separate action. We think this principle should apply whether or not the counter-claim exceeds the amount of the sum sued for by the pursuer, and even although the remedy appropriate to the counter-claim is different in character from the remedy sought by the pursuer. Under present practice a counteraction, with all the expense of a separate "Closed Record," is necessary in almost all cases to make good such counter-claims. In every case in which a counter-claim is put forward the defences should contain in a separate Statement of Facts the grounds which support it, and the Note of Pleas-in-Law should be drawn with due regard to it, as well as with regard to the proper defence against the pursuer's action. Further, in all such cases, the defences should have appended to them a filled-in form of the abbreviated Summons recommended above in which the counterclaim would be formulated by the appropriate conclusion. This form would not, of course, require to be signeted, or separately fee-funded, or to be served, or to pass through any of the steps of procedure necessary in the case of a Summons used for the purpose of initiating an Action. Its function would merely be to place before the Court the precise effect of the counter-claim. A somewhat similar facility was provided in the Sheriff Courts by Rules 43 and 55 of the Sheriff Courts Act, 1907. We think that the abandonment by the pursuer of an action in which a counterclaim has been tabled in the manner above set forth should not deprive the Court of jurisdiction to enforce the counter-claimif on enquiry it should prove to be a just one-in the same way and to the same effect as if it had been submitted to the Court in an original action.

The Motion Roll.-By the Court of Session Act, 1868 (31 and 32 Vic. c. 100, s. 31), all incidental motions were to be called before the Clerks of the Lords Ordinary, and were to be disposed of by them if uncontested. If contested, they were to be continued, and brought before the Lords Ordinary in the usual way. The employment of Counsel before the Clerks was forbidden, the necessary appearances being made either by the Agents or by their clerks. This idea was presumably borrowed from the practice in similar proceedings before the Masters attached to the High Court of Justice in England. The difference in the status, emoluments, and qualifications of the English Masters on the one hand, and the Clerks of Session on the other rendered this provision in the Act of 1868 abortive, and it is no longer in force. But a considerable amount of expense is, we think, unnecessarily incurred in

connection with the appearance of Counsel and Agents at the disposal of uncontested motions in the Motion Roll.

Suggestions were made to us in the course of the evidence for the disposal of all incidental motions, whether contested or not, before a Judge in Chambers, either Counsel or law-agents being entitled to appear as is the case in proceedings before a Master in England. The Master's decision is subject to appeal or rehearing before the Judge, at which Counsel only can appear. We do not favour the introduction of any similar procedure in the Court of Session. In Court of Session procedure many of the incidental motions, and almost all the contested ones, involve points of importance to the trial of the case; and we think, therefore, that (with regard to contested motions) there would be substantial disadvantage in replacing the regular pleader by the law-agent or-as must often be the case-by one of his clerks. This disadvantage would only be aggravated by the possibility of appeals to a Lord Ordinary. But these considerations do not apply with the same force to uncontested motions, and might, we think, be avoided altogether by an innovation upon the present procedure (1) enabling a discrimination to be made between contested motions (where the employment of Counsel is proper and necessary) and uncontested motions (where there is, prima facie at least, no room for explanation or argument), and (2) making provision for the disposal of such uncontested motions, not by one of the Clerks, but by one of the Lords Ordinary, who, in any case in which ex parte judicis he doubted the propriety of granting the motion, could always direct it to be put out in the Motion Roll in order that Counsel might be heard.

We therefore propose that all incidental motions should be made by the party's law-agent in writing on the Motion Sheet (referred to earlier in this Chapter), and intimated on the same day to the opposite party's law-agent. If the latter does not within. two days thereafter declare by entry on the Motion Sheet (intimated by letter of even date to the law-agent of the party on whose behalf the motion is made) either (a) opposition to the motion or (b) a counter-motion, it should be the duty of the Clerk to bring the motion forthwith before a Lord Ordinary in Chambers. The Lord Ordinary would then (without any appearance being made before him on behalf of the parties) either grant the motion or -if he saw any reason to the contrary-direct that it be put to the Motion Roll in order that Counsel might be heard. In the latter case it should automatically come out in the Motion Roll on the earliest available day not less than two days thereafter. We think the scrutiny to which the written motion would be subjected, on the part of the Clerk in the first instance, and on the part of the Lord Ordinary in the second, should be sufficient to check any abuse of this procedure. If the motion was for a Commission and Diligence for the Recovery of Documents, the Specification would of course require to be lodged at the same time as the entry in the Motion Sheet was made.

F

Recovery of Documents.-The powers allowed in the practice of the Court of Session for the recovery of documents forming evidence in a cause are perhaps wider than in the High Court of Justice in England, but we see no reason to restrict them. The procedure is by way of Commission and Diligence in favour of a named Commissioner, who is usually an Advocate or a law-agent, to take the depositions of the "Havers" (including third parties), and receive the documents produced. This mode of recovery is effective, but is sometimes expensive.

We

All the documents which either party intends to use in modo probationis must be produced in process four days before the proof is taken. The object of this is to prevent surprise. think it would avoid delay in the preparations of parties for a proof which has been allowed, if applications for Commission and Diligence for the Recovery of Documents were required to be made within four weeks of the date when proof is allowed. No Commission and Diligence should, in our opinion, be granted at a later date, except (a) of consent, or (b) on special cause shewn why the application was not made earlier.

In the case of any Commission and Diligence requiring to be executed in Edinburgh only, we think the Commissioner appointed ought always to be one of the Clerks of Court, who should perform the duty of Commissioner and Clerk to the Commission without fee or allowance except for necessary outlays and copying not performed by himself.

Procedure Roll.-If the parties are not agreed on the necessity of a proof, or if they differ with regard to the extent to which proof is required, or if on the other hand-they are agreed that the case is ripe for decision on the pleadings without proof, the case is sent to what is known as the Procedure Roll. There have been times when regrettable delays have occurred between the sending of cases to this Roll and the hearing of them. We believe that, if the recommendations made in Chapter III of this Report were adopted and carried into effect, the possibility of excessive delay would be largely eliminated. But we think that, if a case has stood in Procedure Roll for more than two weeks unheard, it should be put out before a Lord Ordinary on the first available day--whether a Sederunt-day or a Monday—and that the diet so fixed should be peremptory on both Counsel and Agents.

Proofs.-Delay-more or less-is inevitable in bringing to trial a case where evidence is required. The collection of the necessary evidence is not always easy and may require time; and, in maritime cases particularly, has sometimes to be done piecemeal owing to the repeated and prolonged absence of indispensable witnesses at sea. But delay arising from these causes is no ground for complaint.

It is the inveterate practice in the Court of Session—and in all Scottish Courts for that matter-when proof has been allowed, to fix a diet for the trial. The English practice of taking proofs

in their order, but without assigning a definite diet fixed some time beforehand, would not be acceptable in Scotland, mainly on account of the expense of keeping witnesses in suspense with regard to the precise date when their attendance will be required. So long as it is possible to fix a diet within a reasonable time, the Scottish system works well. But especially under the depressed conditions of litigation which at present prevail-the Proof Lists get filled up for months ahead with fixed diets, many of which owing to a settlement of the case-prove abortive at the last moment, when it is too late to make effective use of the day or days thus set free. There is reason to think that in many cases diets are asked (and assigned in ordinary course), not because parties intend to go to proof, but because in this way further time is gained in which to negotiate a settlement. This is objectionable. There is nothing to be said against facilities for amicable settlement; but facilities obtained in this way constitute an abuse of Court procedure if they prevent the early trial of cases in which the parties are genuinely seeking a judicial decision.

We believe that the recommendations we have made in Chapter III of this Report would, if adopted, conduce to an improvement in this respect, because there would then always be the possibility of offering seven fixed diets on any given day instead of five; and, if two out of the seven broke down, the only result would be to relieve two of the Inner House Judges from the necessity of undertaking Outer House duty. We have given much consideration to the question whether, by means of regulation, it would be possible or expedient to put pressure on the parties to hasten their preparations for proof, or to refrain from asking fixed diets in cases in which a settlement rather than a decision is in view. But we have not found ourselves in a position to make any recommendation in this direction.

It is not the practice in the Court of Session for Junior Counsel to make an opening speech before the evidence is led, and we do not think that any rule requiring such a speech to be made would be expedient. In cases on the Commercial and Admiralty List (see Chapter V), such a speech would, as we have pointed out, be likely to be of service in eliciting the points of agreement and the points of difference between the parties, and so of limiting the scope of the evidence led. But, even in ordinary cases, a speech of this kind would sometimes be most useful, and we think the Lord Ordinary should always give an opportunity for it if the parties desire.

We think that in an action with pecuniary conclusions the Lord Ordinary should have power to separate the proof on the merits from proof of the amount to be decerned for. This is sometimes done in practice, but its competency, under the existing system of procedure, is not free from doubt.

2. PROCEEDINGS INITIATED BY PETITION.

Form of Petition.-Turning to procedure by Petition, we have