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The profession generally has approved the changes introduced into our forms of process by the Sheriff Court Act of 1853. Practice has made some of the new machinery, which seemed at first inconvenient, work smoothly enough. We venture, however, to think that our practice is still susceptible of some improvements, and have, in noticing the steps in the progress of an ordinary action, suggested the points in which some changes seem most desirable. Possibly the expense and delay ought not to be reduced in the way we have suggested in cases of larger amount than £25; for in experimenting, it is well to be cautious, and the fact that the Sheriff's judgment in causes under £25 cannot be reviewed, makes that amount a convenient resting place.
Experience of the working of the Small Debt Courts with a jurisdiction extending to £12, has obtained for them the same verdict of approval that was pronounced when the jurisdiction was only £8 6s. 8d. From no quarter has any demand come for a reduction of the jurisdiction to its former amount. On the contrary, the demand made by the commercial bodies has been for its extension. They again, (as they did previous to 1853), crave that the Small Debt jurisdiction should be extended to the same amount as that of the County Courts in England, with an appeal in causes exceeding £25. It seems not unreasonable that this demand for an increase should be complied with, but to what extent, is a very serious question. To import into this country the County Court system of England, embarrassed as it is with appeals, would not be regarded approvingly,—as was remarked by the Lord Advocate at his recent interview with deputations from the Chamber of Commerce, and Trade Protection Society of Edinburgh. It is in any view unadvisable to make so material a change in the character of the procedure in the Small Debt Court as that involved in the introduction of a right of appeal, beyond what is at present permitted. Provision for an appeal must necessarily accompany an increase of the jurisdiction in defended causes to so large an amount as £50. The most valuable feature of the Small Debt Court is that a final decision may there be obtained in a few days after serving the summons, and at a cost of a few shillings. The general approval of the working of the Small Debt Courts, and the demand for an increase of the jurisdiction, shew that the time has now arrived when some increase should be made. In litigated causes, that increase might
be made with safety to the amount of £18 or £20. Where no defence is made, there is no reason for limiting the jurisdiction to that amount. The last Sheriff Court returns shew that in almost every county decrees in absence are pronounced in more than onehalf of the ordinary actions brought into Court. The expense of
decrees in absence in causes of less value than £25 seems to be excessive. That a decree unopposed for any sum under £25 should cost £1 15s., seems a very great hardship on traders, and calls loudly for remedy. The suggestion that all cases under £50 should originate in the form of Small Debt actions, and where the value exceeds the Small Debt jurisdiction, should be at once remitted to the ordinary Court when a defence is stated, would remove the just complaint as to the cost of decrees in absence in the ordinary Court, and at the same time not leave too much to the sagacity and skill of a single judge.
Along with any extension of the Small Debt jurisdiction, the provision of the Small Debt Act, which prohibits the appearance of agents, except with the leave of the Sheriff, ought to be amended. In many counties this provision has been so worked that agents appear in almost every case. The general desire for professional assistance is proved by its being had recourse to whenever permitted. The impolicy of the exclusion of an educated bar, has often been dwelt on. Besides, the appearance of agents puts all parties on an equal footing, neither the glib-tongued and impudent has any advantage, nor is there any risk that the modest, weakly, or inexperienced, will be unduly pressed upon. The appearance of agents is at present practically prohibited by the exclusion from the table of fees of any fee to an agent. A reasonable fee (perhaps an ad valorem fee, on the sum decerned for in all cases above £10) ought to be introduced into the table of fees for the Small Debt Court, which must necessarily accompany any increase of the jurisdiction. While such a charge would only be a reasonable addition to the expense thrown upon an unsuccessful litigant, it would be a fair measure of the proper charge exigible by an agent from his client when not found entitled to expenses.
NOTES IN THE INNER HOUSE.
IMMUNITY OF THE CROWN FROM LOCAL TAXES-PREROGATIVE.
H. M. Advocate and Barbour v. Lang.
THIS case raised the question whether the admitted exemption of the Crown from the payment of any impost to which it is not made liable by express mention, or by necessary implication, in an Act of Parliament, extends to the burden of maintaining the foot-pavement in front of the barracks in Gallowgate of Glasgow. The Procurator-Fiscal of the Dean of Guild Court, attempted to take this case out of the general rule, founding on the provision of the Glasgow Police Act, which provides for the maintenance of such pavements, not by a general assessment, but by imposing on. proprietors the duty of making and repairing the pavements adjoining their respective properties. Instead of laying on all proprietors an assessment for the maintenance of all the foot-pavements of the city, it creates an obligation ad factum praestandum against each; and the only remedy in case of failure to implement that obligation, is that the Dean of Guild may grant warrant to the Procurator-Fiscal to get the necessary work done, and decern against the recusant proprietor for the ascertained cost. This was a suspension of such a decree, obtained against the barrack master. The majority of the First Division held that the peculiarities in the nature of the tax in this case did not take it out of the general rule established by the previous decisions. Lord Curriehill differed on two grounds-(1) that this was not a money-tax, but an obligation ad factum praestandum, which did not fall under the Crown's immunity from payment of taxes. His lordship went into an examination of the origin of this immunity in the law of Scotland, and came to the conclusion that it was introduced by usage since the Union, a usage which had never been extended to such an obligation as that in question. It certainly appeared that the usage had been the very reverse, the Crown having, in fact, made and maintained this piece of pavement until recently. The second ground on which his lordship differed was that the Crown was by necessary implication brought within the scope of this statute, as being named in the statutory Valuation Roll as the owner of the land and heritage, in respect of which this obligation was imposed, and the Valua
tion Roll being expressly referred to by the Police Act for the name of the obligant. The majority of the Court, in disregarding the latter of these arguments, no doubt were aware that a similar contention was over-ruled or disregarded in the case of H. M. Adv. v. Garioch in 1845, reported Jan. 22, 1850, 12 D. 447.
The origin of the immunity which has given rise to the present question, is ascribed by Lord Curriehill to a usage which has prevailed since the Union, We cannot but refer to a statement by the same eminent judge, eleven years ago (Advocate Gen. v. Mag. of Inverness, Jan. 29, 1856, 18 D. 366, 371) ;—“ Although the privilege does now belong to the prerogative of the Crown of Great Britain, it appears to do so because it belonged to the Crown of England prior to the Union; and like the other laws existing in England at that time regarding the levying of taxes, it became part of the prerogative of the Crown of the United Kingdom." We presume his lordship here refers to the 6th sec. of the statute 6 Ann. c. 26, for establishing a Court of Exchequer in Scotland. It is there enacted that the Court of Exchequer in Scotland shall act and proceed in every respect whatever as the Court of Exchequer in England has used or practised in like cases in England. That was the ratio decidendi in Adv. Gen. v. Garioch, supra. It may be suggested whether a still larger principle of general jurisprudence does not establish this immunity, namely, that where such a union has taken place as that between England and Scotland, there must be one constitutional law common to both countries, and that will naturally be the constitutional law of the leading or dominant country. It is quite true that an opinion entitled to the highest respect was in this case stated from the bench, to the effect that it did not necessarily follow from the Union that all that belonged to the Crown in England belongs to the Crown in Scotland, the Union having been a union of two equal and independent states; and that there would be as much reason for saying that all that belonged to the Crown of Scotland before the union should belong to the Crown in England now. With all submission, it seems impossible to hold that such a question of constitutional law may be differently determined on the two sides of the border. That position seems already excluded by the 18th article of the Treaty of Union, on which the whole fabric of Scottish jurisprudence rests,* and which provides
*The whole Article is as follows:-"That the laws concerning the regulation of Trade customs, and such excises to which Scotland is, by virtue of this treaty, to be
that "all laws which concern public right, policy, and civil government may be made the same throughout the United Kingdom" (1707 c. 7). The principle has been applied in all questions as to national character, which depend chiefly no doubt on imperial statutes, but in which the principles of English law have been fully adopted. See Dundas v. Dundas, 1839, 2 D. 31, in which previous Scotch decisions were overruled in deference to the subsequent case of Doe v. Acklam in England. This is not the place for a full discussion of the question whether there is any difference in the public law of Scotland and of England; a question which must, we think, be answered in the negative. We may refer our readers to the opinions of Lord Eldon and Lord Redesdale in the Strathmore Peerage Case, 4 W. and S. Append. 89, and in Macao v. Officers of State, 1 Shaw's App. 138.
THE LAW OF SETTLEMENT.
Beattie v. Adamson.
The law regulating parochial settlement in Scotland, has been the subject of a decision at first sight somewhat startling. A pupil child in weak health was, during her father's desertion of his family, received into the poorhouse of a parish, the father having at the time a residential settlement in another parish. He returned shortly afterwards, and has since maintained the rest of his family, but has contributed nothing to the support of his invalid child, who still remains a burden on the parish which first relieved her. Meanwhile her father lost his residential settlement, and more than a year after that had happened, statutory notice was for the first time sent by the relieving parish to the parish of the last settlement, that the latter was held liable for the past and future maintenance of the child. On its refusal to admit liability, an action was raised to enforce the claim; and, in
liable, be the same in Scotland, from and after the union, as in England, and that all other laws, in use within the kingdom of Scotland, do after the Union, and notwithstanding thereof, remain in the same force as before (except such as are contrary to, or inconsistent with, this treaty), but alterable by the Parliament of Great Britain; with this difference betwixt the laws concerning public right, policy and civil government, and those which concern private right-That the laws which concern public right, policy, and civil government, may be made the same throughout the whole United Kingdom, but that no alteration be made in laws which concern private right except for evident utility of the subjects within Scotland.”