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valid excuse, such as illness, employment on official business, or a prior summons to another Court, in which case the cause is postponed to the next assizes. If no excuse is given in, the parties are fined; and if the pursuer be the defaulter, he is found liable to the defender in the expense occasioned by his absence. Where the defender does not appear after proof of intimation, the Judge hears the case, and pronounces judgment, if he think the pursuer has a just claim. The judgment must be intimated by the pursuer to the defender, who may then appeal to the Hofrätt, where he may be allowed to lead evidence, if the Court think it necessary. If he do not appeal within the time fixed for appealing (which is mentioned in the judgment), his only resource is to bring an action to have the judgment set aside; but in the meantime the pursuer may proceed with the execution of his decree, provided he give sufficient security for the repayment of the money, if the decree be afterwards recalled. If the parties both appear, the jurisdiction of the Judge may be declined on any of the following grounds, viz., if he be related to either of the parties within the prohibited degrees, or if he be at open enmity with either of them, or if he or his near relatives have any interest in the suit, or may expect to derive advantage, or to sustain injury directly or indirectly from the result of the litigation, or if he have been Judge in the same cause in another Court, or have been mandatory or witness, or have, in short, been in any way concerned with the previous stages of the dispute, or if he have himself a like suit waiting for decision. A party who wrongfully challenges a Judge is fined; but if the challenge be sustained, a substitute is appointed by the Hofrätt, at the cost, in the first instance, of the pursuer, who, however, recovers the amount disbursed by him from the defender in the event of success.
The case then proceeds.-In questions of small value the parties are heard orally; in more important causes one written statement is allowed on each side, setting forth shortly, and without ambiguity, the grounds of action and the defence. If the parties desire it, or if the Judge think it expedient, a day is fixed for the debating the question, or the leading of proof. In the latter case the Judge indicates to the parties the nature of the evidence which he will expect them to adduce; but before proof is led, objections to the jurisdiction of the Court must be disposed of. As a general rule, a defender can only be summoned to answer in the Court within whose jurisdiction he resides, but several exceptions are made to this rule. In the first place, if a party have raised an action in another district from that in which he resides, he must answer in any counter-action which is brought against him there by his antagonist. Questions of succession, or of the interpretation of wills, or claims for money due by a deceased debtor, must be tried in the Court to whose jurisdiction he was subject, and his heirs are : cited to that Court, even although they live elsewhere. In dis
putes between buyer and seller, the Court within whose jurisdiction the bargain was made can summon a party to appear who is not resident within the district. In this case, however, the defender must be cited while within the district. Questions affecting land are tried in the Court within whose district the lands lie, and if they stretch over more than one district, then the Court to which the principal estate or house is subject has jurisdiction. Where several parties have granted a joint and several obligation, the creditor sues whichever of the debtors he pleases, at the place of that debtor's residence; but if the objection be joint, and the validity of the document, or the amount due by each be disputed, the creditor can sue them all in the Court to which any one of them is subject. Partners of a company are sued where the partnership has its domicile. Matrimonial causes, again, are tried in the Court of the district where the woman resides, but she has the option of suing the man in the Court of his ordinary domicile. To this rule, however, there is an exception, that actions founded on desertion are tried where the innocent spouse resides. Jurisdiction cannot be prorogated of consent of parties, but the king may grant permission on the application of the parties, and any Judge try the case.
The defender, again, may object that the dispute is one of a class which is appropriated to another Court; and this exception must also be at once disposed of. Generally the Courts of First Instance have a privative jurisdiction in all cases except the following, which have been appropriated to the Courts of Appeal. In civil cases the exceptions are actions affecting the title of estates belonging to noblemen, or in regard to their wills, or the curatory of their children and heirs, if they too are noble, and also important actions against noblemen. Numbers of the universities and foreign noblemen have the same privileges. To Svea Hofrätt are appropriated actions against the State Bank, and claims for reward for discovering forged notes. In criminal matters the Courts of Appeal are alone competent to entertain charges of high treason against the king or the country, of holding communications with the enemy, of attempts on the life of the king or royal family, as well as all charges of breach of duty against inferior Judges or subordinate officials. Blasphemy against God is punished by the Courts of Appeal on the report of a Häradshöfding, while no capital sentence can be executed until it has been confirmed by the Hofrätt within whose jurisdiction the case has been tried. All exceptions, such as those which have been referred to, must be stated by the defender at the outset of the case, and if he be found to have stated and insisted in them for the mere purpose of causing delay, he is subjected to a fine proportioned to the importance of the
While the law is thus strict in regard to unnecessary delay, ample facilities are given to any litigant who bona fide desires more time for the preparation of his case.
When the day of trial has arrived, the parties must appear with documentary evidence, or the witnesses whom they propose to examine, and if the witnesses will not come voluntarily, the Court issues summonses to compel their attendance, under the penalty of fine or imprisonment. As in some other continental countries, merchants are obliged to keep business books with accuracy, and in the case of bankruptcy are liable to penalties if it be found that they have failed so to do. The evidence afforded by regularly kept business books, as required by law, is considered of great weight, and in many cases is of itself decisive. Where witnesses are adduced, they are examined by the Judge, who makes a note of the import of their evidence, and before they leave the Court fixes the amount of remuneration which they are to receive. The evidence of two concurring witnesses is required; if only one is adduced, that forms a semiplena probatio, and the matter may then be referred to the defender's oath. The parties may also be required to take the oath of verity, but only in the Hofrätt.
During the progress of the case a third party may appear, and claim to be heard on the ground that the decision of the question will affect his interests. If he satisfies the Judge that he is entitled to appear, the case is sisted to allow him to bring an action, which he must do before the next assizes. Where the parties settle the case before the hearing or the proof comes on, they must without delay inform the Court, and in the event of their failure to do so both pursuer
and defender are liable to a fine. Before pronouncing judgment the Häradshöfding may issue to the parties a written statement of the claim and the evidence, and require them to subscribe it, or state any objections to its accuracy. In the Courts of Appeal this course is usually followed, but in the Courts of First Instance the Judge only draws up such a statement in cases which he thinks of greater importance.
This statement having been returned by the parties, judgment is pronounced by the Häradshöfding in open Court, and a written statement of it handed to the parties. The judgment must specify the time within which an appeal must be taken by the losing party. At the same time the Judge may fix the cost payable to the successful suitor, or a separate action may be brought to recover the amount.
Where an appeal is taken, the Häradshöfding must at once make a note on the judgment to that effect, and appoint a day on which both parties must appear before the Hofrätt.
The appellant must find security for the costs and injury which may accrue to the respondent from the appeal. If no appeal is taken within the period fixed by the decree, the judgment is final. On the day which has been appointed by the Häradshöfding, the appellant must give in to the Hofrätt a written statement of the grounds of his appeal, which the respondent is allowed to answer. The appeals are distributed by lot among the Judges of the Hofrätt, and a written report is
drawn up by the Judge, or assessor, to whom the appeal is remitted. This report is considered by one of the sections of the Court, and judgment is pronounced. The deliberations of the Court of Appeal take place in private, and the parties are not heard orally upon the appeal. From the decisions of the Hofrätt, an appeal lies, as has already been said, to the Högsta Domstol, and the procedure followed is similar to that just described.
In order to prevent the “law's delays " being abused by litigants to their own advantage, fines are imposed on those who litigate merely for the purpose of placing obstacles in the way of the recovery of just debts, but notwithstanding, these provisions form only a very partial check.
In this account of the proceedings before Swedish Courts of Law, we have assumed, as the Swedish law assumes, that all the steps are taken by the parties themselves. The strict enforcement of such a rule would of course in many cases lead to the denial of justice, and accordingly litigants are allowed to choose persons to represent them before the Courts. A party may name his relation, his servant, or his friend as his representative in any lawsuit, and for that purpose must furnish him with a mandate, provided that the mandatory be a person of intelligence and of fair and respectable character. Generally speaking, also, he must be known to the Judge, and obtain his permission to appear. Subject to these qualifications, any Swede may conduct a case on behalf of another; and certain Crown officials, and those who hold university certificates, are entitled to act as mandatories without the special leave of the Court. On the other hand, clergymen are not allowed to plead, except in questions concerning themselves, their wives, children, servants, or glebe. No one can plead a case who has had to do with it as Judge in another Court, or who has held a mandate from the opposite side in the same case, or who is under curatory, or whose father, father-in-law, son or son-in-law, brother or brother-in-law, is Judge in the case. No member of the Court of Appeal, or paid official in it, can hold a mandate before the Court of Appeal, or any of the inferior Courts which are within its jurisdiction, except for a near relation, or cousin-german, or for his ward. No one can conduct a case for another unless he be named in open Court, or produce a duly-sealed mandate from his principal, in which the name of the Court, the mandatory, and the suit are set forth. Without special authority a mandatory cannot compromise, throw up a case, or follow it to a higher Court, and those who have obtained a general permission from any of the Courts to conduct cases are bound to take any poor man's case which the Judge may entrust to them. Even those, however, who regularly appear in the Courts on behalf of clients do not possess the privileges either of counsel or agents, and are considered merely in the position of mandatories. At the close of a suit, the fee of the mandatory, if the principal desire it, is fixed by the Court, which may also authorize the mandatory to retain his principals papers until payment. A mandatory is responsible for the proper conduct of the case, and is liable to be sued, if his principal suffer through his fault or neglect. He is also liable to be fined for advising unfounded lawsuits, or conducting a case which he knew to be unjust. The increase of commerce has tended to give greater importance to those who practise in the Courts, and at present the system is in a state of transition between the older and simpler condition of things, and a more elaborate system suited to the complexity of modern life.
There are many other peculiarities connected with the administration of justice in Sweden, such as the special protection thrown over the press by the constitution, which allows of jury trial in cases affecting the freedom of the press alone, and the provisions of the criminal law, which might have been brought within the scope of this paper. To have done so would, however, have required treatment at greater length than would have been of general interest.
IMPRISONMENT FOR DEBT IN SCOTLAND.
We have recently had an opportunity of observing the practical working of the remedy which the law of Scotland, following that of Rome, affords to insolvents, viz., the cessio bonorum. In our humble opinion the law relating to cessios calls for reform. It cannot surprise us that the ancient rules dealing with civil debtors were somewhat harsh. We have the satisfaction of knowing that they were not so harsh as those which prevailed in England, although the liberty of the subject has always been a peculiar boast of that country. Howard, in his report upon prisons, makes some remarks very favourable to Scotland. In particular, he notes with satisfaction that a criminal after acquittal at the bar could not be detained in prison for payment of jailor's fees, as, according to the abominable practice of the time, he then could be in England.
Yet, even in Scotland, harsh notions prevailed. We see this in so recent an institutional writer as Erskine, who says, “ After a debtor is imprisoned he ought not to be indulged with the benefit of the free air, either on his parole, or even under a guard, for every creditor has an interest that his debtor be kept under close confinement, that by the squalor carceris he may be brought to the payment of his just debt" (iv. 3, 14). That is to say, the security afforded to the creditor by the detention of the debtor is not enough, but payment of the debt must be forced from the latter, or rather from his friends, by means of a process of slow torture; this imprisonment must be rendered as uncomfortable as possible. Carrying out such a principle would it not have been more effective to