the wit and the powers of one individual, or of a few individuals, are manifestly unequal to the task of embracing all views, all experiences, and all phases of the subject. The Commission should be regarded as the instrument neither automatic nor autocratic, and the Public and Parliament will appreciate it the more that its action is apparent from day to day, so that as the Commission runs they (the Public and Parliament) may read. It will save the great evil of the accumulated results of investigation,-the blue books,which bury the subject, and indefinitely postpone it.

Upon the Chancellor rests the responsibility of this work, and to him is due every assistance that the Profession can give. On the other hand, it is due from the Chancellor to the Profession, to Parliament, and the Public that he should welcome and avail himself of that assistance in every practicable way.

ART. VII.—THE REFORM OF THE ECCLESIASICAL COURTS.

No. II.

THIS subject must come before the next Session of Parliament, and, as we hope, may be settled completely and satisfactorily. In our last Number we laid before our readers some of the results of the deliberations of the committee of the Law Amendment Society. We shall now complete this series of papers, which will, as a whole, we are persuaded, afford the materials, not only for the consideration, but for the adjustment of this difficult question.

COMMISSARY COURTS OF SCOTLAND.

THE most ancient form of these Courts was what was called in each diocese the Bishop's Court, and occasionally the Consistorial Court, in which the bishop took cognisance of the

moveable estate of all persons dying within his jurisdiction, retaining a certain share for his trouble.

At the Reformation in Scotland (1560), the episcopal (then Roman Catholic) jurisdiction was abolished; and in 1563, a Commissary Court was created in Edinburgh, consisting of four commissaries as judges; and sometime thereafter a commissary was appointed to each diocese. The power or jurisdiction of the former was most extensive; in consistorial causes, indeed, it was supreme; in other causes, its sentences were subject to the review of the Court of Session. Consistorial causes comprehended declarators of marriage, actions of adherence and divorce, adultery, bastardy, execution of testaments, &c. &c.

The commissaries of Edinburgh also reviewed the sentences of the local or diocesan commissaries. In addition to this privative jurisdiction, the commissaries exercised a jurisdiction commulative with that of the Court of Session and other judges, in all actions bearing even a remote similarity to consistorial actions, such as actions for tithes, for alimony to a wife, for slander, &c. &c.

The inferior or diocesan commissaries had no jurisdiction in the important causes already named, but they had jurisdiction in all the other causes mentioned, and in addition in actions of civil debt to the amount, at one time, of twenty, and from and after 1752, of forty pounds Scots. In all causes competent before them, except those connected with wills, the sheriffs had commulative jurisdiction.

At length, in 1823, an Act was passed abolishing all diocesan Commissary Courts, and transferring their jurisdiction to the sheriffs of the different counties, by which these counties became commissariats as well as shires. By a subsequent statute the actions previously privative in, i. e. confined to the Supreme Consistorial Court, were transferred to the Court of Session; the four abolished commissary judges as a compensation, while they lived being exclusively authorised to take all proofs on commission in consistorial cases. After their deaths, it was provided that such proofs should be taken by four of the sheriffs of Scotland appointed for the purpose. In this way the Supreme Commissary Court of Scotland was de

facto abolished, and the jurisdiction as to testaments or wills, which in the case of foreigners was exclusively vested in this Court, was vested in the Commissary Court of the county of Edinburgh, i. e. in the sheriff of this county, acting as commissary therein.

At present then, the Commissary Court of Edinburgh, in addition to the jurisdiction after mentioned vested in every inferior commissary, is vested with exclusive jurisdiction in all cases of wills or testaments, and the issuing of confirmations of probates of the personal property of persons dying abroad. The only other relic of the Supreme Commissary Court of Scotland, if it deserves the name of relic, is the duty now performed by four sheriffs of acting as commissaries in taking proofs in cases purely consistorial.

No other remark seems necessary as to this Court: the Commissary Court of Edinburgh being in precisely the same situation and vested with precisely the same jurisdiction (except in the case of persons dying abroad) as the other local Commissary Courts of Scotland.

Confining the following observations to the Inferior Commissary Courts of Scotland, the judges of which are now in all cases the sheriffs, it is to be noticed, that by the Act of 1823 already referred to, these were in effect abolished as civil judicatories and Courts of Record. One remnant only of judicial power is now enjoyed by them, viz. to declare the executor of a party deceased when he fails to appoint one. The mode of doing so will be noticed under Intestacy. But the Courts were retained under new divisions into shires, instead of the old ecclesiastical districts, for the purpose of registering inventories of the personal estates of persons deceased. The system of registration is as follows:

Testacy, The will of the deceased, if it contain a nomination of executors, as wills almost invariably do, and in all cases where there is personalty ought to do, is exhibited to the clerk of the Commissary Court of the county in which the testator died; and along with it is given in a regular stamped inventory of the various items of the deceased's personal estate, and an affidavit by one of the executors nomi

firmation is required, i. e. a power to the executors to uplift and discharge all or any of the items of the inventory, it is at once granted by a writ issued and subscribed by the clerk of Court, which, though popularly known as a confirmation (similar, it will be observed, to our probate), is technically termed a "Testament Testamentary" of the deceased; and this confirmation or writ is the warrant of or authority enabling the executors conformed to sue for, recover, and discharge the deceased's personal estate enumerated in it. In all this procedure, which is exceedingly simple, the Commissary or Judge who, it has been observed, is the sheriff of the county, does not appear; it is wholly conducted by the clerk, and may be begun and completed in the same day. The clerk does not record the testamentary deed at length in the register; he merely inserts its date, the names and designations of parties, and the nomination of the executors. If the testator has conveyed specially a debt or a moveable, no confirmation as to such debt or moveable is necessary.

Intestacy. The first step taken here must also be taken in cases where the deceased has left a will, but has omitted to nominate executors. This first step consists in obtaining what is called an edict; i.e. a writ taken out by the next of kin of the deceased entitled to the office of executor, subscribed by the Clerk of Court, and addressed to the whole relatives, or all who pretend to be relatives, of the deceased, to appear on a given day and object to the appointment as executor of the party suing out the writ; otherwise, on that day this party will be decreed by the Judge to be the true executor of the deceased. A copy of this edict is affixed, by an officer of the Court, at the Market Cross of the county town, and another copy on the door of the church of the parish where the deceased died, nine days before the day fixed for the appearance of any person intending to oppose what may be termed the grant of administration. On that day the edict is produced to the Clerk of Court, and if no appearance be made by any one, judgment is given in terms of the writ, appointing the party suing it out, the deceased's executor. If appearance be made, objections are ordered to be lodged within six days, and thereafter a competition ensues

for the office of executor, which is conducted in all respects as a summary action at law before the sheriff of the county, under the name of Commissary of the Commissariat.

Seldom does a case of this sort occur. If it does occur, it must be concluded before an inventory can be registered. But assuming that is concluded, or, what is the common case, that there is no competition, the party who, under the edict has been decerned or adjudged as entitled to be executor, lodges inventory and affidavit and obtains confirmation, which in this case is called "Testament Dative" (the Commissary GIVING the appointment as well as the title to the personalty), all as in the case of executors nominated, with this exception, that executors dative, as they are termed, must find security to the satisfaction of the Clerk of Court before the confirmation is granted, that they will administer the estate faithfully to all parties having interest.

With the single exception of determining who is or is not the next of kin of a deceased party, and thereby deciding who is entitled to be his executor, the local Commissary Courts of Scotland now enjoy no jurisdiction whatsoever. The clerks, who, in nearly all cases, are the sheriff clerks of the counties, act as mere registrars of inventories and of the appointments by the testator or the Commissary of the executors who lodge and make affidavit to the verity of these inventories. It may be remarked, that the whole of the business of the Commissary Clerk of Lanarkshire (who is a solicitor in practice) at Glasgow, which city has now a population of 400,000 souls and no small share of the wealth of Scotland, is done easily and well by one of the clerks in the office.

No notice has been taken of a mode of obtaining a title to the personalty of a person deceased whose next of kin decline to administer, generally in consequence of the deceased leaving more debts than assets. In such a case any one of the creditors of the deceased who has either a liquid document of debt, such as a bond or note, or who by an action constitutes his debt (i.e. obtains a judgment for it), may obtain an edict and pursue the same course as in the case of intestacy. His situation, however, is simply that of a trustee for the benefit