THE SCOTTISH LAW MAGAZINE AND SHERIFF COURT SHERIFF COURT REFORM. THE following able and practical article appeared in necessity of which would be more frequently apparent if a daily contemporary: The last Sheriff Court Act, 16 and 17 Vict. c. 80, made provisions for a simple procedure. It works well on the whole, but any dissatisfaction practitioners and the public find with it, and particularly in large counties, where the hands of the judges are full of all kinds of work, may be traced to 1. The shape in which the minute of defence is allowed to be given in, being often rather an evasion of anything specific in the way of a defence than a brief intelligible statement of a substantive ground of defence. Some Sheriff-Substitutes will not allow such evasory and ambiguous defences to be stated; others allow any latitude. The meaning of the Act was that "the Sheriff should hear parties in explanation of the grounds of action and the nature of the defence to be stated thereto, and, if satisfied that no further written pleadings are necessary, he shall cause to be written etc., a minute setting forth concisely the ground of defence.” This clearly contemplated that the pursuer should have what he has a right to in equity—a fair intimation of the case to be set up against him. Under the present practice, there is no verbal pleading in explanation before the Sheriff, out of which he reduces matters into a concise minute; the defender's agent brings the defence all ready to Court with him. It is generally studiously framed, so as to defy anticipation or conjecture of the line of defence, and so as to hold sub nube the whole matters to come out in proof. No doubt, if a defender makes no separate statement, but confines his minute to a mere denial, he will only be allowed a conjunct proof, but the looseness of practice in Glasgow, at least as to what is conjunct, is nearly tantamount to giving the defender a separate proof-in-chief, and that with this great advantage, that the pursuer has no means of rebutting the proof which he could not anticipate. Everything almost that goes to contradict the pursuer's case or to take off its effect is allowed as conjunct; not merely what goes to contradict the precise statements made by the pursuer's witnesses. All this would be obviated by the more frequent use of a record made up by condescendence and answers, the the Sheriffs insisted on a verbal explanation of the grounds of action and defence before reducing the minute to shape. The Sheriffs themselves would, by having the defences articulately before them, be better able also to take the proof. This is the next ground of dissatisfaction-the working of the provisions of the Act (sec. 10) as to the taking of evidence by the Sheriff with his own hand. His notes are to set forth the names of he witnesses and the testimony given by each, not by question and answer, but in the form of a narrative, etc., that is to say, in the Sheriff's own words, who may take the substance, as it appears to him, of the testimony without either question or answer. Now, where the record consists of a bare skeleton of the pursuer's claim-a mere abbreviate-as the summons is, and such a defence as is above complained of—where there has been no explanation of the grounds and nature, no specification of circumstances-the Sheriff comes to the case as nearly as possible ignorant of the whole questions at issue. No case almost presents one bare issue; there are many subordinate issues; many matters to be established not obviously connected with, and yet having a most important bearing on the case. The tendency, the pertinency of such facts, is a mere blank wonder to the Sheriff. He is almost certain to reject them or to misstate them, to omit the pertinent part or to put it in such a way as to deprive it of all effect. The Sheriff, if asked to note a particular expression, demands explanations, etc., giving the witness a hint of the bearing of the examination, or worse still, the cross-examination. A skilful cross-examiner very often begins with distant and unimportant matters, and succeeds in eliciting from an unwilling or adverse witness important admissions before he puts the final question. If the witness gives a denial when the purport of the line of examination is thus disclosed, it is of no great moment if the previous admissions, which sometimes almost involve the proper answer, have been noted. It records a contradiction or inconsistency in his evidence. But from the Sheriff's ignorance of the case, it too often happens that the agent finds that all of the cross-examination that the Sheriff has noted has been the last denial-the previous admissions of which he has not seen the pertinency more than the witness he has F taken it upon him to omit to note; and then, if you try to go over the ground with the witness to recover the admissions, you find him now wide-awake and far too well-informed to make them. How much matter, important for the proper weighing of testimony, is thus lost every agent must have felt. In short, the power given to the Sheriffs in regard to the noting of evidence is too arbitrary, and is abused. Some are lazy-all in Glasgow are in a hot hurry, and note just as little as they can. All the characteristics, the natural colour and spirit of the evidence as personal testimony is lost. One Sheriff makes a mere dry skeleton of the facts which he sees to be directly and immediately pertinent to the case, omitting all the matter that indirectly touches it by directly affecting the weight of the witness' evidence as more or less consistent, more or less unwilling, more or less straightforward. Another, instead of the witness' expressions and turns of speech and of thought, will substitute a rotund, flowing, pompous, flimsy narrative of his own, being in short rather his deductions from the witness' testimony than the witness' testimony itself, even in substance. All nice distinctions, not only of character in the evidence, but even of fact which are so important in reconciling or in contradicting testimony; all those chinks and crannies where a skilful judge sees truth and falsehood lurking; all those matters of degree, matters of less or more, where apparent differences meet and reconcile, are lost. All is taken bare, square, gaunt, and angular; no half hints, no shadowing, off; every man speaks cannon bullets or mathematical propositions. That is the manner of one Sheriff. Another will reduce the most nervous and vigorous and characteristically telling statements to the consistence of jelly; the whole bones and sinews of the evidence are boiled down into a flimsy, watery, shaky pulp, whereof no manipulation is possible, where everything slips through your fingers when you attempt to grasp it and hold it for examination, where the eye meets nothing but one uniform chiaroscuro. The agents neither see what is put down, nor what is omitted, till the notes are finished; and every agent knows how the most careful precognitions and the most valuable evidence look and bear on the case when they reappear in the shape of Sheriff-Substitute's notes. The remedy for this is, that the Sheriff clerk should appoint a short-hand writer to each Substitute. There are three in Glasgow-£300 a year would do it—and in other counties the expense would be less. Let the parties have at least the option of employing a short-hand writer in such cases as they think deserve it. Lastly, let us trace the effect of writings under the hands of the Sheriff-Substitute to the Court of Appeal -the Sheriff. It turns out in Glasgow that it requires a special education to read the handwriting of at least two of the Substitutes. A most painful process of deciphering has to be gone through if the evidence is to be studied, and therefore it is generally understood that from the day the notes are taken they are never read again except by the agents. With the refreshing of memory the Substitute gets at the debate, he thinks it unnecessary-he has no time; the Sheriff-Principal cannot read them; he hears excerpts read at the proof or at debate, and never troubles himself with more careful In the Court of Session prints, it is understood that the expense of three written copies will cover a print. Now, as it is, each agent is allowed to make a copy for his use of the record, proof, and productions. A third more expense, would give the judge a print, which he could conveniently refer to, and mark at the debate— which he could re-peruse with facility afterwards— which he could peruse before coming to the debate (a thing never done). Indeed, in the Sheriff Court the process is never read by the judge before debate. It lies generally with the clerk during the time of debate. No references are verified by the judge, from the trouble and loss of time in turning to different MSS. of which it consists. Hence all manner of dishonest misrepresentations, which a single glance would check, pass unchallenged, and which no labour in the opponent (even if the time could in Glasgow debates be allowed for it) could efface from the mind of the judge without great tedium and weariness of exposition. Too often the judge's notes of debate are the only materials from which interlocutors are written out. Often the Sheriff Principal's interlocutors are written on the bench during the debate, and it is well if they are not left over to be written three months after, from mere fragmentary notes of what each agent says, without the process ever being referred to. A print would facilitate reference and shorten debates, as it would abridge the labour of preparation in the Sheriffs (or rather it might induce them to prepare in some measure for their debates). Besides, if any advocation was contemplated, the copies printed here might make up the notes of advocation in the Court of Session. Printing might be made optional below a certain sum. I am sure that every agent who has practice before the Sheriff Courts would gladly hail these changes. CONTEMPT OF COURT. IT is a rare occurrence that a Judge is driven to vindicate the authority of the law and the office he holds, by committing a party for contempt; but as that disagreeable duty must sometimes be performed, the form of the warrant may become matter of doubt, and, as it must, in almost every case, be drawn up on the spur of the moment, it may happen that something more or less essential has been omitted. we know of no style-book where a form may be found, and the want of this has been felt in some Courts, we have been applied to for a form which has passed the ordeal of the Supreme Courts; we As think we cannot do better than print the form of commitment used in the case of the Rev. Patrick M'Laughlin, Roman Catholic priest, who was committed to prison, on 11th December, 1862, for refusing to answer a question put to him in a criminal case before the Justice of Peace Court of Glasgow. A bill of suspension and liberation was presented; but it was not pleaded that the warrant was informal or irregular, and the Court noticed this fact. The case is reported by Irvine, and in 35 Jurist, 322. SCOTTISH BILLS BEFORE PARLIAMENT. WE find the names of Mr Dunlop, the member for Greenock, Mr Carnegie and Sir R. Anstruther, on. the back of the following Bill now before Parlia ment. The present unsatisfactory state of the law of hiring servants, and the amount of petty vexatious litigation often arising therefrom, are well known. Its inconveniences otherwise are of daily experience, and Mr Dunlop will therefore have done a good deed if he is able to get this Bill passed into law. Its short title is— Whereas, the Reverend Patrick M Laughlin, Roman Catholic clergyman at Eastmuir, of Shettleston, in the Barony parish of Glasgow, and county of Lanark, while he was examined before me, William Kidston, Esquire, THE SERVANTS HIRING (SCOTLAND) BILL. one of Her Majesty's Justices of the Peace for the Whereas by the law of Scotland a general hiring of county of Lanark, sitting in petty session at Glasgow, domestic servants is presumed to be a hiring for six this eleventh day of December, one thousand eight months, and a hiring of farm servants is presumed to be hundred and sixty-two, as a witness, upon oath for the a hiring for a year or for six months, according to the complainer, in a complaint, at the instance of Robert usage of the district in which it takes place; and Duncan Douglas, Procurator-Fiscal of Court for the whereas this rule has been found to be productive of public interest, against Terence M'Ghee, labourer, re- inconvenience to both masters and servants: Be it siding in Tollcross, in the county of Lanark, charged therefore enacted by the Queen's most Excellent Majesty, with the crime of theft, was shown an envelope bearing by and with the advice and consent of the Lords Spiritual the post mark of the post office at Glasgow, November and Temporal, and Commons, in this present Parliament 23, 1862, addressed to Mr Terence Ferguson, care of assembled, and by the authority of the same, as follows:— Mr Terence M'Ghee, Tollcross, Glasgow, and was also. From and after the passing of this Act the hiring shown a piece of paper with the following words written thereon, "This is the pound note you sent to your father, which went amissing;" he deponed that the said address on the said envelope, and the said writing on the said piece of paper, are in his handwriting, and that there was a one pound note enclosed in the said envelope along with the said piece of paper; that he sealed the envelope containing the said piece of paper, and the said one pound note, but that he did not himself put the said envelope and its contents into the post office; and he being desired to say whether he delivered that sealed envelope and its said enclosures to Terence M'Ghee, the accused, to be posted, he, the said Patrick M'Laughlin, refused to answer the said question, and I, having informed him that he is bound to answer that question, and explained the consequences of his continuing to refuse to answer it, and I, having put the said question, and required him to answer it, and to state whether the said Terence M'Ghee, the accused, is the person to whom he delivered the said envelope, and its said contents, to be posted, he, the said Patrick M'Laughlin, refused to answer, and persisted in his refusal to answer, the said question: Therefore, in open Court, and in a summary manner, I, for the said contempt, adjudge the said Patrick M'Laughlin to be committed to the goal of Glasgow, therein to be detained for thirty days; and I grant warrant to Patrick Stirling Ross, constable of Court, to take the said Patrick M'Laughlin to the said goal, and to the keeper thereof, to receive and detain him accordingly. This done at Glasgow, the eleventh day of December, one thousand eight hundred and sixty-two. (Signed) WILLIAM KIDSTON, J.P. of a domestic servant or of a farm servant, unless stipulated by agreement in writing, signed by both master and servant, or by some one on his or their behalf having authority so to do, to be for a specific term, shall not be deemed to be a hiring for any definite term of endurance, but such hiring, unless so stipulated, shall be deemed to be indefinite in regard to its term of endurance, and shan continue and endure until the expiry of one month after either the master or the servant shall have given warning to the other that he desires the hiring to be terminated, and at the expiry of such month the same shall cease and determine accordingly; provided always, that it shall be competent to the master, in place of giving and abiding such month's warning, to terminate the said hiring at any time on paying to the servant a month's wages, and also a month's board wages, in cases where the servant is entitled to board wages. 2. Nothing in this Act contained shall extend to or affect the hiring and engagements of labourers or workpeople employed at day's wages, or for particular jobs, nor alter or affect the right of either the master or the servant to terminate the hiring in consequence of breach of contract by the other. THE TRUST ADMINISTRATION (SCOTLAND) ACT, 1864. THIS Bill, brought in by the Lord Advocate, the Home Secretary, and Sir W. Dunbar, is to facilitate the administration of Trusts in Scotland. Section 1 extends the powers of sale vested in trustees to sales generally, either by public roup or private bargain, and either in feu or for ground annuals. Section 2 empowers trustees to apply money directed to be invested, in paying off heritable debts. Section 3 empowers trustees directed to purchase heri table property, to borrow upon the same, not exceeding one-half of the price of the estate purchased. Section 4 remedies what has hitherto been found to be a very inconvenient rule of the law, by providing that the bona fide payment of money to trustees shall effectually discharge the person paying the same-he being no longer answerable for misapplication. Section 5 gives power to trustees who hold no powers of sale to apply to the Court of Session for authority to sell, and authorises the Court to grant such power on cause shown. intervention of the judicial factor or other expensive procedure. Section 23 declares that the powers of the Court under the Act may be exercised by any Lord Ordinary. Section 24 declares that the Act shall apply to executors as well as trustees, and to judicial factors and other persons appointed to offices of trust. Section 25 gives power to the Court of Session to make Acts of Sederunt, for carrying into effect the purposes of the trust. Section 26 declares that the Act shall commence and Section 6 authorises the Court of Session, on the appli- take effect from the 1st November, 1864. cation of trustees, to grant authority to feu. Section 7 authorises the Court, on the application of trustees, to grant powers to borrow on the security of the Trust estate. Sections 8 and 9 provide a mode whereby trustees may themselves purchase portions of the trust estate, or transact with their co-trustees, or hold a salaried office under the trust. Section 12 empowers the Court to authorise the advancement of any part of the capital or fee of trust property for the maintenance of the family, if minor children. Section 13 takes away the provision of the existing law, that no deed of appointment or division shall be valid where it gives an unsubstantial or illusory share to Your one or more of the objects of such appointment, a clares that such deeds shall be valid. Sections 14 and 15 provide for the exoneration of trustees, and for the distribution of trust funds by way of petition to the Court, instead of the present expensive mode of multiplepoinding and exoneration. Section 16 provides for the discharge of trustees who may resign during the subsistence of the trust. Section 17 introduces what may become a very useful provision, empowering trustees to apply to the Court for their opinion and direction as to the management and administration of the trust. Sections 18, 19, and 20 extend the powers of the Court on the appointment of new trustees, define the auties of these trustees, and their powers and immunities. Section 21 gives power to the heir of the last surviving trustee to complete a title and convey the trust property, notwithstanding the want of a destination, over to him. Section 22 provides a mode of realising and rendering effectual a lapsed trust for behoof of the beneficiaries, at the instance of any one of the members, without the A BILL to provide for the alteration of the Circuits of the Court of Justiciary in Scotland, and for holding additional Circuit Courts. WHEREAS it is expedient to make provision for altering the circuits of the Court of Justiciary in Scotland, and for holding additional circuits. Be it enacted, etc., 1. It shall be lawful for Her Majesty in council, from time to time, as Her Majesty in council may think fit, to alter the circuits of the Court of Justiciary in Scotland, or any of them, to form new circuits, to fix and determine the limits of each existing or new circuit, and the counties, or portion of counties, cities, or burghs, and districts which shall be included within the same; to detach any county, or portion of a county, from any circuit, and to include the same in any other existing or new circuit; and also to fix and determine the times and places at which the Circuit Courts shall be held within each such circuit, and to alter such times and places, and to direct that any Circuit Court may cease to be held at any place where such Court has hitherto been held, and may be held at any other place. 2. Every order to be made by Her Majesty in council, in pursuance of this Act, shall be published in such manner as Her Majesty in council may direct, and shall take effect from the date thereof, or from such other date as may be specified therein. 3. It shall be lawful for the Judges of the Court of time to make such orders and regulations, and to pass Justiciary, and they are hereby required, from time to such Acts of adjournal as may be necessary for carrying into effect the provisions of this Act, and of any order to be made by Her Majesty in council in pursuance thereof. A BILL to facilitate the administration of Trusts, and to regulate the powers of Trustees in Scotland. WE have not space this month to give even a summary of this important measure, which, like too many Scottish Bills, has only been introduced when the Session is more than midway over. We may lay it before our readers next month. THE SCOTTISH LAW MAGAZINE AND SHERIFF COURT REPORTER. SHERIFFS-SUBSTITUTE AND THEIR SALARIES. these places, it seems to us that the Bill is invidious and unjust, and ought to be amended. But another question has been raised out of the discussion of this Bill, with which the public and the profession are intimately concerned. If the Sheriffs-Substitute are to have their salaries augmented, should not the present rule be enforced? or if there be no certain rule, should not one be made part of the Bill, that judges should be strictly prohibited from performing any business of a private nature, for which payment is to be taken, or from taking any fees for merely ministerial duties? We do not know how it stands with the judges in other parts of the country; but in the larger towns, notably in Glasgow, the SheriffsSubstitute draw a handsome amount of fees, not as arbiters, which would be a direct infringement of a supposed rule, but for opinions on stated cases, and for other duties with which, as judges receiving public salaries, they ought to have nothing to do. We know how difficult it is to speak on such a sub THIS subject has again been brought before the public | populous towns? In thus omitting the judges in and the profession; not, however, in its general aspects, but with reference to two special instances, which have in some quarters been considered as exceptional. The well-concerted-and not only wellconcerted, but well-supported-effort of the SheriffsSubstitute of Scotland, to obtain from the Government directly, and indirectly through Parliament, an increase of their salaries as a body, having failed, Government seems to have been induced to introduce a Bill, giving them power to augment the salaries of the two senior Sheriffs-Substitute of Edinburgh and Glasgow. That Bill we publish in another part of our present number. By the act of 1853, the minimum salary of Sheriffs-Substitute was £500, and the maximum was £1000. As will be seen, the sum in the Bill is left blank, in order to its being filled up by the Committee of the House of Commons, but we understand it is intended to ask that the sum of £1400 shall be made the maximum. There can, in our opinion, be no valid objections to the two senior Sheriffs-Substitute of Edinburgh and Glasgow re-ject, and yet avoid the charge of improper motives, ceiving such a sum. The business of their Courts, and the social position they are obliged to maintain, seem to demand it. But there are four SheriffsSubstitute at Glasgow, three of whom hold separate ordinary Courts, and by whom the whole Court business, in the first instance, is discharged. What good reason is there why the third Sheriff-Substitute should not be put in the same category with his two senior brethren? none that we know of, if equal work is to be the test. But if the two senior SheriffsSubstitute of Edinburgh and Glasgow are to have an augmentation, why not the gentlemen who fill the same offices at Perth, Dundee, Aberdeen, and other or being actuated by personal feelings, and so giving occasion to misunderstandings; and perhaps Glasgow is the only town in Scotland where the subject could be fairly and impartially, yet independently, discussed on its true basis as an important public question. We are glad to see that it has been taken up and discussed apropos of this Salaries Bill, by the Glasgow Faculty; and we give a pretty full report of what passed on that occasion; and we direct the careful attention of the profession to what was so well stated by Mr William Burns, and we have no doubt the discussion will be useful beyond Glasgow. |