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When appearance is entered to defend an action the cause goes to the roll and parties are heard "in explanation of the grounds of action and the nature of the defence." The manner in which the record is to be made up is then determined on. If it is a suitable form for the case as stated at the bar, the record is made up on a minute of the defence stated. This is the most expeditious and necessarily the cheapest form of record; but in many cases it is inapplicable, very often because there is no opportunity of making any statement of the pursuer's case in addition to what is contained in the conclusions of the summons. It may be hard on one or possibly on both parties to compel them to close the record on a minute of defence. The only other course is to order condescendence and defences. These papers have generally to be revised, often on separate papers, and then there must be a meeting with the Sheriff-Substitute to adjust and close the record. The expense of such a record is great; but the consequent delay is still more serious. The Sheriff Court Act makes very stringent provisions for enforcing despatch and insuring punctuality in the lodging of papers; but who that has ever had anything to do with Sheriff Court practice does not know how the lodging of papers is delayed, how many are lodged of consent long after they are due, and how averse agents are to take decree by default? Moreover, it is not always in the most important cases that the time occupied in the preparation of the record is greatest. Written papers are at present necessary and unavoidable in a large class of cases, in which the necessity for them might easily be obviated. Take, for example, filiation cases. The summons states the name of the mother, the party alleged to be the father, the date and place of the birth of the child, and the sum of aliment and inlying charges sued for. That is a statement on which it would be manifestly unfair to the defender to compel him to go to proof, especially as it is now the rule that the defender's proof must proceed immediately on the close of the pursuer's. He may thereby be deprived of the opportunity of bringing evidence to meet the pursuer's proof. He may be cut out of his best defence where he can prove an alibi. He cannot be prepared to meet proof that he has been with the pursuer at times and places of which he has no information; and there are obvious objections to an adjournment of proof. Were there a provision for a minute by the pursuer stating the times and places where the acts of connection founded on by her oc
curred, the necessity for condescendence and defences would be saved in the most, if not in all, of the class of cases in which the poverty of the pursuer, and often the poverty of both parties, makes it most desirable that the expenses should be least. The same remarks apply to many cases, in which it is felt to be necessary at present to have recourse to condescendence and defences. The record made up by minute of defence was for some time rather in disfavour, having been adopted in some cases to which it was not suited, and moreover the minutes of defence were not at first very well prepared. No difficulty is now felt in minuting the facts and the pleas in law on which the defender founds; and there would be no more difficulty in so stating the case of the pursuer.
In ordinary actions for small sums some limit to the expense of litigation might very reasonably be fixed. In some instances the amount of expense is practically limited; for example, cases under L12 are carried on in the Small Debt Court, and in all cases under L.25 the sheriff's judgment is final. It would not be found any very serious, or other than a salutary, restriction were it to be the rule that in all causes under L.50 the record must be made up by a minute stating the grounds of action (when necessary, in addition to the summons) and a minute of defence. In some cases, even when the sum at stake is small, records must be made up by condescendence and defences; but that should be only when specially ordered by an interlocutor setting forth the reasons, and perhaps the party on whose motion such an order is made, in order that, should it be found to have been obtained on frivolous grounds, the liability for the expenses of process may be adjusted accordingly. The record in cases where the sum concluded for exceeds L.25 would much more frequently than at present be made up without condescendence and defences if there existed some provision for minuting any statement or pleas for the pursuer. In such cases the necessity for a record may very well be left to the discretion of the Sheriff-Substitute and the parties as at present, with power to make up the record by minutes. Where condescendence and defences are ordered, we do not see that the regulations regarding these papers can be much improved.
If parties are not agreed on the facts averred, the case goes to proof. Instead of the long written proofs often taken by commissioners, the proof is now invariably before the Sheriff-Substi
tute, who must with his own hand (or in certain cases by a clerk, to whom he must dictate,) preserve notes of the evidence. The advantages of this change in the manner of recording the evidence are very obvious. Some lawyers are of opinion that the judge before whom the witnesses are examined is the best, and ought to be the only, judge of the facts; and that to put upon him the duty of recording notes of the evidence at such length as to allow of his judgment on the proof being reviewed, deprives him of the power of observing the demeanour of the witnesses while under examination, sufficiently to enable him to judge of their credibility. In this opinion we do not concur. To make the Sheriff-Substitute, or the Sheriff who takes the proof, the sole judge in questions of fact, would be entrusting too much to the sagacity and skill of one man. It would be throwing a responsibility on the judge scarcely fair either to himself or the litigants. When weight should be given to the demeanour of witnesses, either in increasing or diminishing their credibility, the judge can scarcely fail to notice it, even though he is engaged in noting the evidence. Any observations he makes on the bearing of witnesses are generally given weight to, and, as a rule, the view of the evidence taken by the judge before whom it is led has much influence with any Court of review. That is the full extent to which, where a large sum is at stake, it appears advisable that questions of fact should be left without appeal to the decision of the Sheriff or SheriffSubstitute. The present system of preserving notes of the evidence imposes in some Sheriff-Courts a great amount of very exhausting labour on the Sheriff-Substitutes, and occupies a very large proportion of the time of these officials. This can scarcely be remedied in the country; but in large towns, where such assistance can be had, the proof might be advantageously recorded by a short-hand writer. When there are a large number of proofs, the cost of so recording the evidence would not add much to the expense. The time saved to the judge and the agents would be considerable, and the cost of keeping witnesses long in attendance would be much reduced.
The debate on the closed record, or, where proof is necessary on the import of the proof, is the last step before the Sheriff-Substitute pronounces judgment. Oral pleadings were looked forforward to with much dislike by many practitioners. It was prophesied that they would be a failure; but the result has been otherwise. The practitioners in the Sheriff Court have generally
proved themselves well able to conduct debates, and the assistance so given to the Sheriff-Substitutes and the Sheriffs has been very valuable.
It is not easy to prescribe rules for cases originating by petition, and actions ad facta præstanda. After the petition in the form of the schedule appended to the statute, the procedure under the present system is the same as in ordinary actions. To this the only addition that seems advisable is that, unless for special reasons stated in the interlocutor ordering answers or condescendence and answers, the record should be made up by minutes for the parties. In actions ad facta præstanda, it is sometimes difficult to judge of the value at stake, and it may be difficult to determine whether they should proceed according to the forms appropriate to causes for large or small sums. As a general rule, the record ought to be made up by minutes, unless where special reasons are stated for proceeding otherwise.
It is not only the final judgment of the Sheriff-Substitute that may be brought under review of the Sheriff, but also certain interlocutors in the course of a cause-viz., interlocutors disposing of a dilatory defence, sisting process, allowing proof, and, under certain exceptions, interlocutors on the admissibility of evidence. There are three forms by which judgments may be appealed to the Sheriff:-1st, By minuting under the interlocutor of the Sheriff Substitute the words, "I appeal against this interlocutor," within seven days after the date of the interlocutor. If nothing more is done the case is sent to the Sheriff, who disposes of it. 2d, Within eight days after minuting his appeal, the appellant may lodge a reclaiming petition. The process is then transmitted to the Sheriff, who may either dispose of it on the reclaiming petition or order answers. 3d, Within eight days after minuting an appeal, the appellant may lodge a minute craving to be heard orally. With this minute the case is transmitted to the Sheriff, who appoints parties to be heard at his next sittings in the county for hearing appeals; but he has 'power, in cases requiring extraordinary despatch, to order a reclaiming petition and answers, instead of hearing the parties orally." By the statute, the Sheriff holds annually only four sittings, and in some northern counties only three, for hearing all causes ready for trial or hearing. One result of an appeal against an interlocutor pronounced in the course of a cause, and a minute craving an oral hearing, is to stop all procedure till the Sheriff
holds his next sittings. The appealable interlocutors in the course of a case are not many, but it appears essential to justice that the right of appeal should not be further restricted. No doubt some Sheriffs whose counties are near Edinburgh may visit them more frequently than four times annually; and the Sheriff has power, in such cases as require extraordinary despatch, to order reclaiming petitions, instead of allowing them to lie over till his next sittings; but delay is not always thereby prevented. But few counties are so easy of access that a Sheriff, who is in large practice, can make frequent visits to his jurisdiction during the session of the Supreme Court; it is not in every case, when a reason for despatch exists, that it is apparent on perusing the papers; and it is hard to impose, where it is unnecessary, the expense of an appeal by reclaiming petition where the cheaper form of an oral hearing has been selected by the party appealing, and may be sufficient. Against all interlocutors pronounced in the course of a cause, the appeal ought to be made only by a minute of appeal, or, in cases involving large amounts, by reclaiming petition. If the Sheriff finds it difficult to dispose of the appeal without argument, he should have power to order it; but the necessity for a reclaiming petition might very well be left to his discretion in cases of small amount. In appeals against final judgments of the Sheriff-Substitute, a defender fighting only for delay has the same chance of obtaining it by craving an oral hearing. The appellant who brings up a final judgment in an important case, must have an opportunity of arguing it; but cases of small value-perhaps all causes under £50-may be quite well taken to review by a simple appeal. The conclusions of the summons, and minutes of the ground of action, and the nature of the defence, and the pleas of parties, with the note explaining the judgment appealed against, may inform a lawyer quite sufficiently to enable him to dispose of a cause. The Sheriff should, in every case, have power to order oral argument when his sittings are near at hand, or a reclaiming petition and answers, as may appear to him most expedient. In some counties the number of cases in which argument is submitted to the Sheriff is very small, and the number in which it is necessary is still smaller. It is to be regretted that a right of appeal should be capable of being abused by being made a means of obtaining unnecessary delay, and it does not appear that any injury can result from the right to submit arguments to the Sheriff on appeal being limited, as we have suggested.