they should recollect, that talent is not to be fettered by form, or the ends of justice retarded by a servile adherence to the rules of judicial procedure. The judge EX NOBILI OFFICIO wished to remunerate Jones and Roy for the trouble they had in coming into court. And as the funds were then in their hands, it would be less inconvenient to order the pursuers to retain them, than to ordain them to be paid over to the defender. N.

For this equitable reason,

4 No expenses were awarded. that when a man gains his cause, he has gained enough, (dictum of Lord Balmuto to T. Walker Baird, Esq. in causa Aitchison v. Waddel.) Besides, it would be the height of cruelty to subject his unsuccessful antagonist, in addition to losing his cause, in payment of costs. This equitable rule has subsequently been frequently recognised in practice.

F.

His Lordship sometimes found the successful party liable in expenses, for the equitable reason assigned in Professor Fusty-whigg's preceding note.

N.

5 The advising a case ex parte has been much censured, but with injustice, for it will not be denied, that great confusion is occasioned by the opposite statements of litigants; this difficulty, however, is completely avoided by hearing only one of the parties. In the present case, to have ordered answers, would merely have embarrassed the cause. A judge should always rise superior to vulgar prejudices. F.

Many important legal views arise out of a consideration of this case.-I. It is a truly gratifying thing when judges are open to conviction. The different and opposite judgments his Lordship pronounced, shew with what care and attention he deliberated; and although he had conceived a prejudice against the plea of the Viscount in the earlier stages of the cause, it was entirely removed at the close. A nobler or more praiseworthy example of this exercise of the nobile officium is not recorded, than

that of awarding to a person demanding only £3 the sum of £30, being the amount of the fund in medio, and of alimenting him besides with his costs. Men of weak intellect would imagine that there was an inconsistency in the awarding of costs here. If they would reflect for one moment, they would see that there was no inconsistency at all. To every general rule there is an exception, and there is one here. The Judge was puzzled what to make of the case; and the consequence was, that various conflicting interlocutors were pronounced. really, if litigants try to puzzle a Judge, it is reasonable that they should be found liable in all the expenses occasioned by such an indecent attempt.-II. A more beautiful or admirable commentary on the first rule of Law,

Now,

"Justitia est constans et perpetua voluntas, suum cuique tribuendi,"

can hardly be figured than what occurs here.

7 In processes of multiplepoinding, his Lordship's judgments stand unrivalled. EDITOR.

8 This must be admitted at all hands to be a most splendid specimen of the fictio juris. The deceased being by fiction of law held to be under the jurisdiction of his Lordship, in consequence of his citing her to appear in Court, and her disobeying this order. I was in court when the difficulty occurred, and took the liberty of hinting that by letters of supplement, a jurisdiction might be created. His Lordship objected to this as an expensive form of procedure; and, after deliberating a few moments, he entered at considerable length upon a detail of the various ways by which jurisdiction might be created; and concluded with stating, that he thought the method he proposed to adopt the most eligible and least expensive. The expense weighed greatly with him; for as he most justly said, 'We are not aware what the pecuniary resources of the deceased may be; it is there

fore, our duty to avoid accumulating any unnecessary expense upon the party.'

N.

Few Judges would have thought of a method so admirably suited for the furtherance of justice.

F.

9 Many people would imagine that there was a mistake here, the deceased being a woman, not a man. This is but a further illustration of the transcendant talents of the judge. No doubt, while alive, Mrs. Botherem was a woman, when she threw off this mortal coil, and became a disembodied spirit, the judge had no opportunity of learning her sex, or whether she had any sex at all. In this state of uncertainty, and willing, perhaps, to pay a compliment to the deceased, his Lordship deemed it more respectful to suppose that she now was of the nobler sex. This was certainly more decorous than to have at once reduced her to the neuter gender.

N.

Mahomet, or more properly Mahommed, denies the existence of woman in a future state; probably he had the same ideas of the matter as our enlightened judge, namely, that so soon as females cease to exist here, they cease to be women.

Y.

10 The equity of this award of costs is unquestionable. He (Mrs. Botherem) was now the denizen of a foreign. state, and could not legally be presumed to know any thing about the forms of the Scotish Courts; besides he was entitled to travelling expenses. Ex nobili officio, therefore, the judge alimented him with his reasonable

costs.

Y.

11 The concluding remarks to the first report are equally applicable to the present one.

F.

XXIII.

UNTO THE RIGHT HONOURABLE THE LORDS OF COUNCIL AND SESSION, THE PETITION OF THE CLERKS AND APPRENTICES OF THE WRITERS TO THE SIGNET.

This and the succeeding article appeared in the Cornucopia Britannica, a periodical work, which commenced its ephemeral existence early in the year 1832, or end of the year 1831. The first Petition, from the reference to the tax on powder, is evidently of a much earlier date than the second.

That your petitioners, with much regret,
Take up your Lordships' time their ills to state;
But, conscious that your Lordships succour lend,
The sad to comfort, and the poor befriend,
We've dared, with boldness, to reveal our grief,
And from your Lordships' justice hope relief.
We've struggled long chill penury to hide,
But now necessity o'ercomes our pride;
Though modesty concealed our pressing need,
Our hollow stomachs would cry out for bread:
And sure this humble prayer, more grateful far
Than empty sounds of hunger at your bar,
Without poetic ornament or fiction

We'll shortly state our case to your conviction.
Your Lordships know 'tis ours to copy pages,
For each of which poor threepence is our wages,-
And that in this unprofitable way

We're scarce employed a fourth part of the day,
Most of our masters thinking it quite fair
To keep three extra clerks to live on air,
Though they themselves could finish every line,
They must have clerks-for what?

To cut a shine.

Our other time like chairmen we must spend
So many messages our masters send:

In borrowing processes and craving debtors,
Taking down rolls and passing signet letters,
And trudging idly through the Outer House,
We spend our time, or rather time abuse.
How many a writer's clerk attends the Court
Without one cause his spirits to support!
Yet see with how much cheerfulness he walks,
And over knotty points majestic talks!

Now sudden starts, as if awake from slumber,
Runs to the Macer, and cries, "What's the number?"
Although with that he has no more to do

Then if he were a miner in Peru.

Full many a tedious year has passed away,
Since writers' clerks have got increase of pay,
And e'en this ill we might with patience bear,
Had not each necessary grown so dear.

A writer's clerk, full fifty years ago,

On thirty pounds a year would be a beau,
But now with that same sum we scarce can hide
Our naked skin, and meat and drink provide.
Tradesmen of all descriptions raise their wages,
Why, therefore, no increase for copying pages?
If we're employ'd to copy any paper,
For instance, to a hosier or a draper,
Our charge is truly not a farthing more
Than what it was some forty years before;
But if we need a hat, or coat, or stocking,-
With great submission, is it not provoking?
Our draper says he cannot sell it under

Five times the price it cost in seventeen hunder.
We groan beneath a sad, but just, taxation,
From which there's little hope of extrication.
We'll pay the taxes while we have a groat,
Whether your Lordships grant our prayers or not.