are carried;" and in a later case (Harvey v. MʻIntyre, March 7, 1829, 7 Shaw, 561), the clerks of the First Division were directed to adhere to the usual practice of not inserting in the ordinary case a finding of additional expenses in interlocutors of adherence. As however the practice of the two Divisions of the Court varied, it was at last laid down as a rule to be adhered to by both, that it was necessary to make special application for Inner House expenses, and that otherwise they were not to be held as awarded (Grant v. Sir G. Rose, June 30, 1835, 13 Shaw, 1007), and accordingly they are now always asked for when judgment is given.

Where a remit to the Lord Ordinary gives him express power to deal with expenses, it would require a strong care to induce the Inner House to interfere with his judgment (Clephane v. Kirkpatrick, Dec. 1, 1842, 5 D. 226). Where the sum modified by him in name of expenses, has been considered by the Court too smallthey have given on application decree for a larger sum (Harvey v. Millar, March 11, 1845, 7 D. 604). When a party who has been successful in the Outer House "intends to reclaim only against the part of the Lord Ordinary's interlocutor dealing with expenses, he must bring it under the notice of the Court before the case is advised on the merits. It is different from the case of a party who has been unsuccessful on the merits in the Outer House, for he cannot anticipate that the Lord Ordinary's judgment will be reversed" (Per Lord President Inglis in case of Magistrates of Arbroath v. Dickson, March 15, 1872, 9 S. L. Reporter, 393; 10 Macph. 639).

Protestation. When a warrant is issued for extract of a protestation for not calling, it must by Statute (13 & 14 Vict. cap. 36, sec. 23) contain a decerniture for three guineas as expenses. If the protestation be for not enrolling after the calling of the summons with or without defences, then the defender is entitled to have his expenses taxed as in the case of a decree in absence. A pursuer may be reponed against a protestation for not calling, at any time not later than ten days after it is given out for extract, but must either lodge the receipt by the defender's agent for the three guineas, or consign that sum in the hands of the Clerk of Court, and in the same way he may be reponed against a protestation for not enrolling after paying or consigning the taxed expenses of the defender.

An interlocutor of the Outer House, which has been allowed to become final by mistake, can by Statute (48 Geo. IV. c. 151, sec. 16) only be brought under the review of the Inner House, on condition that the expenses previously incurred by the other party are to be paid. It has been decided in one case (Brumby v. Ogle, Nov. 14, 1822, 2 Shaw, 15), that when the reclaimer is ultimately successful he has a right to repetition of the expenses paid by him. The authority of the decision has, however, since been considerably shaken (see Stewart v. Lang, 6 Shaw, 488, note). The expenses must be paid in every case, the Court not having any discretion in the matter (M'Cra v. Birtwhistles' Trustees, March 11, 1831, 9

Shaw, 533), but it seems to be still undecided whether such payment is a condition precedent to the hearing of the reclaiming note (Officers of State v. Alexander, 29th June 1864, 2 Macph. 1294).

LAW REPORTING IN NEW YORK.

W. G. S. M.

We have before us an interesting report by the Committee on Law Reporting of the Bar Association of New York, from which it appears that reporting is there in a far worse condition than it ever has been on this side of the Atlantic. Observation of American legal literature has led us to the conclusion that, for some reason or other, American Courts are far more addicted to the study of precedents than our own. It may be perhaps because the decisions of the Courts of thirty or forty states within the Union, not to speak of those of England, are constantly cited to the Bench, and are apparently entitled to nearly equal weight with those of the State to which the Court belongs; or perhaps the American mind which boasts so much of its political freedom, prefers, by a natural reaction, to walk in chains in the temples of Themis. Whatever may be the cause, the evil exists to a great extent, and it has been aggravated enormously, at least in New York, by the enormous multiplicity of reports of the same cases. We are told that besides various law periodicals and irregular reports, there are in New York seven series of regular reports, issuing in all about eighteen volumes yearly. The frightful accumulation of books implied in this continual addition to the existing 1036 volumes of English and 2012 volumes of American reports (400 of these volumes being produced in New York during seventy-nine years), has forced upon the Bar the necessity of radical changes; and with this view the Committee address themselves to a detailed consideration of the subject.

Their report consists chiefly of a critical examination of all the reports of the State during the last five years. In regard to multiplicity of reports of the same case, they say that "it is common to find four reports of the same case differing very little from each other, three reports of the same case are two of every important case. The same case is reported also at different times upon motions and appeals quite unnecessarily. None of the reporters except Judge Daly use discrimination in regard to the cases they report. Two-thirds of the cases are not worthy of preservation." The prolixity of the Courts and of the reporters appears to exceed anything known even in this country, and the instances of reckless reporting of cases reversed, of the opinions of a minority as those of the Court, and of cases of old date overruled by subsequent unreported cases, are appalling, and lead us to fear that the civil rights of a nation which depends for its law on Courts led by such lights must be uncertain in the extreme.

In Scotland, our reporting is not subject to the objections that

have been stated to the former system in England, and to the existing system or want of system in New York. But it has long been felt a grievance, that the determination of a great publisher to maintain his own command of a series of reports, should subject the public to the disadvantage of a double set of reports of the same cases, and deprive the members of the profession engaged in reporting, whether for the Jurist or the authorized reports, from receiving any adequate remuneration for their labours. We hope that a remedy for these evils, which may also bring with it an improvement in the form and execution of the reports themselves, may soon be found; and it may perhaps aid in the realization of our hope if we quote some portions of the pamphlet before us which deal with the law as to reporting, and with the proposed remedies.

In America the State legislatures have generally dealt with the matter of reporting. "The constitution of the State of New York directs that the 'Legislature shall provide for the speedy publication of all Statute Laws, and of such judicial decisions as it may deem expedient. And all laws and judicial decisions shall be free for publication by any person,' Art. 6, sec. 22. Under this provision the office of State Reporter, and Supreme Court Reporter have been created.

"The Court of Appeals has an official reporter, appointed for three years, at a salary of 2000 dols. per annum. It is made his duty to report every cause which the Court shall order reported, and such others as the public interests, shall, in his judgment, require. The Judges are directed to deliver their opinions to him. The reporter has no pecuniary interest in the reports, which are reported under his supervision, by contract between him and the Secretary of State and Comptroller, with that publisher who offers to comply with the prescribed conditions, one of which is to sell the reports at not exceeding 3 dols per volume. (Laws 1847, chap. 280; 1848, chap. 224.) Under the early and the last reporters, these volumes have been generally well edited. Your Committee regret that they cannot say the same of Tiffany's reports. Besides other criticisms to which they are open, a number of cases were omitted which should have been reported. This afforded an excuse for the publication of the five volumes of Keyes' reports, which, considering the existence of an official reporter, and the practice of the Court to designate what cases should be reported, can only be regarded as an audacious attempt to foist another set of generally worthless reports upon the profession, for the sole benefit of the reporter, and without the provision regulating the price of the regular reports prescribed by Statute. Many cases in Keyes' reports are incorrectly reported; in several instances the dissenting opinion is given as the opinion of the Court, and in others, the report is presented in such a form as to make it impossible to know what was decided.

"In 1869, the Legislature provided for the appointment of a

Supreme Court Reporter. He was to hold office for five years, and it was made his duty to report from among the decisions forwarded to him by any general or special term, such as he should think expedient. To enable him to perform this duty, the Judges of the Supreme Court were directed to deliver to him their opinions, in all cases in which they should order the opinion to be reported. Not more than three volumes were to be published annually. The reporter was to receive no salary, and the cost of the reports was limited to 2.50 dols. per volume, of 500 pages. (1 Laws 1869, p. 176.)

"Mr. Lansing was appointed reporter in June 1869, and since that time has issued six volumes. They are reported intelligently and clearly, and are superior to those of his competitor Mr. Barbour.

"Since the year 1848, Mr. Barbour has reported the decisions of the Supreme Court, and has now issued his 63rd volume. Notwithstanding the Act of 1869, he continued the publication of these reports, as he had a legal right to do, and since then has issued eleven volumes. The existence of two sets of Supreme Court Reports is unnecessary, and an unmixed evil, entailing great labour and expense upon the bar. While there is no law to prevent Mr. Barbour publishing reports, there is a law requiring Judges to deliver all the opinions which they think should be reported, to the Supreme Court Reporter. If this law had not been very generally disregarded, it would have been impossible for Mr. Barbour to continue his reports. An examination of his volumes shows many cases decided by one Court or Judge reported seriatim, from which it would appear that certain Judges are in the habit of sending him all their decisions.

"It can hardly be necessary for us to combat the idea that Judges have a proprietary right to their opinions, that they may retain them, or give them exclusively to their favourites, that reporters depend upon their courtesy, and not upon their own rights. "Judge made law," is as much the law of the land as the Acts of the Legislature, and is, on principle, entitled to the same publicity. It cannot be supposed that Judges would permit any feeling of favouritism to induce them to send their opinions to an unauthorized reporter, after a law requiring their transmission to the official reporter had been brought to their notice, and it is hoped that this suggestion will lead to the abandonment of any practice of this kind which may have heretofore existed. The present method, or rather want of method, in the transmission of opinions by the Judges to the various reporters for publication, sometimes leads to unexpected results. And even the care that Judges take to ensure the reporting of their opinions may, in the absence of any system throughout the State for collecting them, increase the difficulty. Thus one reporter may receive the opinion of the Court from the Judge who prepared it, while another reporter receives the dissenting opinion in the same case from its author. Both reporters naturally suppose that the opinions sent to them express the decision of the Court, and publish them as such. A curious case of this kind may be found in Ballou v. Cunningham, 4 Lansing's R., 74, where the dissenting opinion is published, under the idea that it is the opinion of the Court. The true opinion is reported in 60 Barb. R., 425. The character and quality of Barbour's volumes sufficiently appears under other heads of this report. The general conclusion to which your Committee have arrived respecting them, is that they present some of the worst features possible in law reporting."

"so

The Committee believe that legislation is needed to carry out any satisfactory scheme of reporting, and refrain for the present from suggesting any definite plan until after their criticisms and their general recommendations have elicited the recommendations and suggestions of the profession.. The conclusion is, that long as reporting is conducted by private enterprise, for the sole purpose of making as much money out of it as possible so long as lawyers must buy all the reports, and pay for the chaff in order to get the wheat the temptation of printing worthless cases and of mere book-making will exist. Your Committee are of opinion that all reporting should be official, that the reporters should be responsible to some supervisory body, and should be paid by salaries, and thus made independent of the number of volumes they may be able to publish annually. Your Committee entertained no doubt that it is the duty of the State to inform its citizens of its laws; and that this duty is not fulfilled so long as it makes only partial provision for reporting judicial decisions. There are, however, serious objections to committing the practical work of law reporting to any State officer under our form of government. The work is not of a kind to be well done by an elective officer, nor is it likely to be well done by an officer, who, if appointed, goes out of office with changing administrations. A first-class reporter requires particular qualities, and should have a permanent position. If undertaken by the State, and the profits of the office went to the reporter, the place would soon be sought by political aspirants, and if they went to the State, the work would be badly done, and soon relapse into the present evils. Nor should the reporter be in any way dependent upon the Courts, whose favour and friendship it is his privilege to win and enjoy. In a free country, it is well that Courts should feel that they are acting before an intelligent and reading public, to whom their decisions will certainly become known through fearless and independent reporters. Your Committee are of opinion that the provision of the Constitution permitting any person to publish the laws and judical decisions is wise one, and that council should be at liberty to cite any authority from the whole range of literature, leaving the weight of the citations to be judged of by the Court. If these views

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