BILL OF ADVOCATION - The Law Mind Legal Dictionary

BILL OF ADVOCATIONAuthored

The Law Mind • 851 words

Definition

A bill of advocation is a procedural remedy in Scots law by which a party to a proceeding petitions a superior court to remove a cause from an inferior court and bring it under the superior court's review or direct adjudication. The petition is made in writing and operates as a form of appellate or supervisory jurisdiction, allowing the higher court to call up the action before judgment is rendered below, or to review a judgment already given.

The remedy served dual functions: it could function as an interlocutory transfer mechanism (removing a pending case before final decision) or as an appellate vehicle (challenging a judgment already issued by the inferior court). In both uses, the bill was addressed to the supreme civil court of Scotland — historically the Court of Session.

Common Confusion

The bill of advocation is distinct from a bill of suspension, another Scots law remedy. A bill of suspension typically operated to stay or set aside the execution of a sentence or decree, while a bill of advocation sought to transfer the cause itself to a higher court for review or determination. The two remedies were sometimes used in combination but addressed different procedural needs. Researchers encountering either term in historical Scots legal materials should not treat them as interchangeable.

Why It Matters in Research

This is a term of exclusively Scots law provenance. Researchers will encounter it almost entirely in pre-twentieth-century Scottish legal sources, treatises on Scots practice, or comparative law materials discussing civil law procedural systems. It has no meaningful application in English common law jurisdictions and should not be imported into common law research contexts.

The key research trap is assuming that the bill of advocation maps cleanly onto English appellate mechanisms such as a writ of error or certiorari. It does not. The bill of advocation reflects the civilian and mixed-law heritage of Scots procedure, which drew on Roman and continental models alongside common law influences. Its function as a mechanism to "call" a case upward echoes the civilian concept of evocation rather than the English model of error review.

Researchers working on Scottish legal history should note that the bill of advocation was substantially affected by the procedural reforms of the nineteenth century, particularly under the Court of Session Acts, which rationalized and eventually replaced many of the older bill-based procedures with modernized appellate forms. Sources predating those reforms will treat the bill of advocation as a live, standard remedy; sources postdating them may treat it as a historical curiosity or a superseded form.

For comparative purposes, researchers studying jurisdictions that inherited or adapted Scots law — notably parts of Canada, particularly Quebec and early Nova Scotia practice — may find echoes of this procedure in local historical materials, though direct adoption was uncommon.

Historical Dictionary Support

The four source dictionaries are in strong agreement on the core substance: a bill of advocation is a Scots law petition to bring the judgment or proceedings of an inferior court before a superior court for review. Burrill's Law Dictionary and Black's Law Dictionary both characterize it as a vehicle for appeal or review of inferior court judgments, with Burrill citing Bell's Dictionary as authority — a useful pointer for researchers seeking primary Scots legal lexicography. Bouvier's Law Dictionary adds the most procedural detail, specifying that the petition is addressed to the supreme court and that it may be used to "call the action out of the inferior court to itself" — language that captures both the interlocutory and appellate dimensions of the remedy. Rapalje and Lawrence align with Bouvier in describing it as a petition for removal to a higher court.

None of the historical dictionaries provide significant treatment of the bill's historical development, its relationship to Scots common law procedure, or the legislative reforms that curtailed its use. Researchers needing depth beyond these skeletal definitions will need to consult Scots legal history sources directly — Bell's Dictionary of the Law of Scotland and institutional writers such as Erskine or Bell's Commentaries are the appropriate starting points.

Jurisdictional Note

This remedy is specific to Scots law and has no counterpart in English common law or in American law. Researchers outside the Scots legal tradition will encounter it only in comparative, historical, or conflict-of-laws contexts.

BILL OF ADVOCATIONmain

Bouvier's Law Dictionary • 1928

In Scotch Law. A petition in writing, by which a party to a cause applies to the supreme court to call the action out of the inferior court to itself. BILL IN AID OF EXECUTIOΝ. Α bill to execute a decree is a bill assuming as its basis the principle of the deeree and seek- ing merely to carry it into effect. (1) For example, such a bill may be filed where an omission has been made in consequence of all the facts not being distinctly on record, or where, owing to the neglect of parties to proceed under a decree, their rights have become embarrassed by subsequent events, and a new decree is necessary to ascertain them (Mitf. 95); or where a decree has been made by an inferior court of equity, the juris- diction of which is not equal to enforce it. The distinguishing feature of a bill of this class is, that it must carry out the principle of the former decree. It must take that principle as its basis, and must seek merely to supply omissions in the decree or pro- ceedings, so as to enable the court to give effect to its decision. A supplemental bill may be filed as well after as before a decree; and if after, may be either in aid of a decree, that it may be carried into full execution, or that proper directions may be given upon some matters omitted in the original bill or not put in issue by it on the defence made to it: Adams, Doctrine of Equity 415; 3 Md. Ch. 306; 4 Baxt. 479. Bills to carry decrees into execution. Sometimes, from the neglect of parties, or some other cause, it becomes impossible to carry a decree into execution without the further decree of the court. This happens generally in cases, where the parties having neglected to proceed upon the decree, their rights under it become so embarrassed by a variety of subsequent events, that it is necessary to have the decree of the court to settle and ascertain them. Sometimes such a bill is exhibited by a person who was not a party; or who does not claim under any party to the original decree; but who claims in a similar interest; or who is unable to obtain the determination of his own rights, till the decree is carried into execution. Or it may be brought by or against any person, claiming as assignee of a party to the decree, Story, Equ. Pleadings § 429, Mitf. Eq. PL. by Jeremy, 95; Cooper, Eq. Pl. 98, 99.