has not been cited. Certain defences to actions of reduction, technically called dilatory defences, are, in substance, defences on the merits, and ought always to be reserved. Those which we have named are logically antecedent to merits, and ought to be dealt with in limine. First of all, the defender should be required to state the particular ground upon which the proceeding is objectionable under any of those general pleas. He should state, for example, what are the essential words which have been omitted from the summons; whether the jurisdiction is declined on the ground that the defender had not a domicile or had not a residence within the territory; whether the pursuer is incapable of suing for the debt without the concurrence of some person having a joint interest, and

so on.

Some dilatory pleas affect only the particular summons, others apply to all actions between the same parties and on the same ground. The objections of defect of jurisdiction and res judicata are irremediable. The plea that the action is premature may be obviated by a sist. Defective citation ought to be fatal if pleaded in limine; but the omission to plead it ought to be held equivalent to a waiver. Objections to the summons on the ground of deviation from the statutory form-e.g., the omission of essential words-ought to be remediable by amendment and payment of expenses. If the objection be not stated in the defences, the pursuer ought to have leave to amend without payment of expenses. The plea that all parties are not called, may, under the existing practice, be obviated by a supplementary summons; and, on principle, we think that the plea of no title to sue,' when founded on the omission of a necessary pursuer, ought not to infer the dismissal of the action, but that the party whose concurrence is required should be permitted to compear by minute.

4. We are anxious again to call attention to a remarkable anomaly in the procedure of the Court of Session,-the finality of interim interlocutors in the Outer House. That the unsuccessful party should have the option of reclaiming as soon as an interim interlocutor on merits is pronounced against him, we admit; because the interlocutor, while directly disposing of one part of the cause, may affect indirectly and prejudicially the interests of the unsuccessful party in the prosecution of what remains, or may, by enjoining a particular mode of procedure, deprive him of the right of having his case investigated in a way that is competent to him,

and favourable to his interests. But why should the interlocutor be final, if the unsuccessful party is willing to defer his appeal to a later stage of the cause, or even if both parties are willing? We have never heard any satisfactory answer to that view of the question. Two years ago we drew attention to this anomaly, in terms which we regret to say are still applicable to our process of appellate procedure. The existing rule as to the finality of interlocutors in the Outer House is productive of very great inconvenience, and it is utterly indefensible. It is contrary to the rule of practice in the Sheriff Courts, and in appealing to the House of Lords. From the petty sessions to the court of ultimate jurisdiction there is but one exception to the rule that an appeal against one interlocutor carries with it the privilege of bringing all prior interlocutors under review. That exception occurs in reclaiming from the judgment of the Lord Ordinary to the Inner House; and the effect of the rule is, we need hardly say, not to secure finality at each stage of the process, but simply to compel the parties to reclaim against each interlocutor seriatim, at an excessive cost in money and time.

Since the decrees of Sheriffs have been co-ordinated with those of the Lords Ordinary, as respects the liability to review, the maintenance of a distinction in regard to the particular stage at which review may be sought, is as indefensible in principle as it is mischievous in practice. It is injurious to the practitioners of the Court of Session; because it gives the litigant who initiates proceedings in the Sheriff Court an advantage not possessed by parties to actions brought in the Court of Session. An action for a claim of any value may, provided it does not involve questions of heritable right, be prosecuted and brought to a conclusion before a Sheriff-substitute, without any interruption to the regular sequence of the proceedings; and after the papers have been submitted to the Sheriff, or even, as some hold, without going to the Sheriff, it may be brought direct to the Inner House, and afterwards to the House of Lords; and in this way a rehearing may be obtained once for all upon every interlocutor pronounced in the Sheriff Court, whether relating to form or merits. But in the case of an action being instituted in the Court of Session, in the first instance, the unsuccessful party is, at every step of the proceedings, put to the torturing alternative of either acquiescing in a judgment which may tie up his hands at some subsequent stage of the proceedings, or of reclaiming instanter, with the certainty that, however well-founded his case

may be upon the merits, he will have to bear the expense of an unsuccessful opposition to the interlocutor reclaimed against. The expense of reclaiming notes against interim interlocutors is only one, and not the greatest, of the evils resulting from the system. As matters stand at present, every reclaiming note is equivalent to a sist of process for twelve months. This may happen to be advantageous to the reclaimer; and the expense of reclaiming may, in that case, be held to represent the price which he pays for a temporary surcease of justice. But the money so paid does not go into the pocket of the respondent, at whose expense the advantage is procured, but is distributed among the counsel, agents, and law printers of both parties; that is, among the involuntary instruments of perpetrating this act of injustice. On the other hand, the reclaimer may be the party in petitorio; in which case he may have to submit to the double misfortune of being kept out of his property, and having to defray the expense of being kept out of it.

The requirement of caution in the advocation of ordinary actions is, we humbly think, unnecessarily vexatious. There is, in truth, no more reason for exacting caution, as the condition of an appeal from the Sheriff to the Divisions of the Court of Session, than in the parallel case of an appeal from the Lord Ordinary's judgment. As a security to the party holding the judgment for his expenses, it is of little value. The penniless suitor is allowed to come into Court upon juratory caution; while too frequently the really responsible class of litigants are induced to acquiesce in doubtful judgments, from a disinclination to ask their friends or professional advisers to become security for them. But upon this subject we have not space to dwell. We prefer to limit the case of the advocates of Court of Session Reform to the four points to which special reference has already been made. An act of four or half-a-dozen clauses would be sufficient to cure what we venture to think undoubted defects in the system. Such a measure should provide for the amendment of records; for the more certain determination of the order of procedure in the matter of taking proof; for suspending reclaiming notes until the case had been exhausted in the Outer House; and for mitigating the rigour of dilatory pleas. We trust the subject may yet receive the attention it deserves from those who are qualified to assist Parliament in legal matters; and we feel certain that reforms such as we have indicated would be well received by the profession.

NOTES IN THE INNER HOUSE.

FIRST DIVISION.

Yelverton v. Yelverton.

A CASE which has attracted so much public attention for several years, the debate in which occupied the First Division an entire week, and the delivery of the judgment in which cost the Lord President and Lords Curriehill and Deas six hours' constant speaking, cannot be allowed to pass without some notice here. It cannot be denied, however, that the case by no means presents so many features of interest to the lawyers as it does to society generally. Very few points of novelty occurred in it, and we question whether any law not previously well recognised was enunciated by the majority of the Court.

The action, as is well known, is a declarator of marriage at the instance of an English lady of education and respectable family, against the younger son of an Irish Viscount, an officer in her Majesty's service. The grounds of the declarator are twofold: 1. Interchange of matrimonial consent de præsenti; and, 2. Promise of marriage subsequente copula. Both of these are very well known modes of constituting marriage according to the law of Scotland. They are not two different kinds of marriage, but only two different ways in which that consent which is the essence of the contract is exchanged between the parties. This is quite clear in regard to the first, and, in regard to the second, a single sentence should make it clear. It is not the promise de futuro which makes the marriage, far less is it the mere copula; but the law presumes that, a promise of marriage having gone before, when the act of copula takes place, the promise is fulfilled, and de præsenti consent exchanged. That being the case, it is not to be wondered at that, very frequently, it is nearly impossible to say to which mode the facts are properly applicable. A very remarkable illustration of this was furnished by the well-known case of Reid v. Laing, decided in the House of Lords (Lord Eldon, C.) 14th May 1823, 1 S. App. 440. The writing relied on was in these words: I engage to be a true, faithful, kind, and affectionate husband to you, on condition you are the same to me; and I engage to show this to no person, and make it known to nobody without your consent.' Lord Eldon thought that amounted very nearly, possibly altogether, to a written acknowledgment de

præsenti; but, at all events, it constituted a promise, and copula having followed, he held the marriage proved. The present case presents another illustration of the same thing. Much of the correspondence and of the conduct of the parties it is exceedingly difficult to place categorically under the one mode or the other. And yet the majority of the Court have had no hesitation in holding that it is all pertinent to the real issue in the case, Was there matrimonial consent exchanged between the parties? Yea or nay.

Perhaps the nature of the judgment will be more easily understood by a short consideration of the opinion of the Lord President, who dissented from it. His Lordship stated the case for the defender with a force and plausibility which it certainly never before received either from court or counsel; and it is not unlikely that, on one important point at least, his view will be supported by the House of Lords. He held (1) that, in regard to the ground of de præsenti consent, the pursuer had tied herself down to a particular occasion in Edinburgh, on the 12th April 1857; and that, having failed to establish the truth of her allegation in regard to what she said took place on that occasion, her case had, upon that ground of declarator, entirely failed. His Lordship thought that the pursuer need not have tied herself down in the way she had done; but that, having perilled her case on the truth of an allegation which she had failed to prove, her action must to that extent be abortive. This is, no doubt, a somewhat Judaic way of treating the case; but there is abundance of authority for it; and it is by no means improbable that the House of Lords may agree with his opinion on that point. In regard to (2) the ground of promise copula subsequente, the President's view is a very ingenious one; but we cannot think it is a sound one. He agreed with the other judges in holding that the parties really came under a promise to marry each other; but then he held that the subsequent copula did not take place in such circumstances as to convert the promise into very matrimony. The copula in Ireland before the Irish ceremony, if such there were, which we don't believe, and also after that ceremony, could have no matrimonial effect; because it is admitted on all hands, that, to have such effect, the copula must take place in Scotland. But further, his Lordship held that the copula in Scotland, after the Irish ceremony, could have no matrimonial effect, because, in his opinion, it took place on the faith of that ceremony, and not of the preceding promise. In fact, he held that the Irish ceremony was a mid-impedi