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Supply?" If any of them can refer to any Act of Supply "on the pages of the Statute Book where they are so named,” it will be the duty of the Commissioners of Supply to sustain the claim of such of them, but, if none of them can do so, I am afraid that the Commissioners of Supply have no other course open to them than to reject the claims made until, at least, they are established in some competent manner. It does not seem to be enough for the claimants to allege that they are named to be ex officio Justices of the Peace, in the Commission of the Peace. The question remains, are they named or constituted Commissioners of Supply in any “ Act of Supply?'
IV. The claim stated on behalf of the claimants is mainly rested on two Statutes, 45 Geo. III., c. 48, sect. 3, and 7 and 8 Geo. IV., c. 75, sect. 2, the first of which enacts, -“That the several and respective persons hereby appointed Commissioners shall be subject and liable to such and the same qualifications,” &c.
“Provided, also, that all persons who shall act as Justices of the Peace of or for any County, Riding, Shire, or Stewartry in Great Britain, being duly qualified as aforesaid, may act as such Commissioners, although not specially named in this Act.”
The second of those Statutes enacts,—" That all persons who shall act as Justices of the Peace for any County, Shire, or Stewartry in Scotland, and also the several and respective persons hereinafter specially mentioned, named and designated, all such Justices of the Peace, and other persons, being respectively duly qualified to act as Commissioners of the Land Tax within their respective Counties, Shires, or Stewartries, shall be, and they are hereby declared to be, Commissioners,” &c.
These, however, are not the Statutes which now regulate the qualifications of Commissioners of Supply. Other and different qualifications have been introduced by the said 19th section of the Valuation Act. The law on the subject is changed by it, and any qualifications that may have at one time existed are now of no avail. The 19th section provides that "from and after the passing of this Act (10th Aug. 1854) no person, other than a person duly qualified, as after-mentioned, shall be qualified to act as Commissioners of Supply in any County.” Among the qualifications "aftermentioned,” that which the claimants found on, on behalf of “all persons who shall act as Justices of the Peace is not included."
V. Even had the law as to the qualifications of Commissioners of Supply not been changed by the said 19th sect. of the Valuation Act, the acting Justices of the Peace who were, at one time, favoured by the Acts 45 Geo. III., c. 48, sect. 3, and 7 & 8 Geo. IV., c. 75, sect. 2, were only such as possessed a particular property qualification (see sect. 3, which refers for the qualitication to sect. 137 of 38 Geo. III., c. 5). Although it is, by sect. 5 of 19 & 20 Vict., c. 93, provided that the list of Commissioners of Supply thereby prescribed to be made up by the Clerk of Supply, on or before the 31st day of December in each year, subject to corrections on appeal,“Shall, till the next list shall have been authenticated, be conclusive as to the right of acting and voting as Commissioners of Supply, except as regards such Sheriffs and Magistrates of burghs and towns, for the time being, as may, in any subsisting Act of Supply, be constituted ex officio Commissioners of Supply, without being required to possess any property qualitication, who, and whose successors in office, shall be entitled to act and vote as such Commissioners virtute officii, and without being inserted in such list,”— there is nothing which dispenses with “a property qualification in any others than Sheriffs and Magistrates of burghs and towns, for the time being, as may, in any subsisting Act of Supply, be constituted ex officio Commissioners of Supply.'
VI. An ex officio Justice of the Peace is not in the same position as a burgh magistrate named in an Act of Supply. In the Act of Supply 2 & 3 Will. IV., c. 127, for instance, the following parties are named as Commissioners of Supply :-"The Sheriff of Forfarshire for the time being; the Sheriffs-Substitute of Forfarshire for the time being; the Provost of Forfar for the time being; the Eldest Bailie of Forfar for the time being; the Provost of Dundee for the time being; the Provost of Montrose for the time being; the Provost of Arbroath for the time being; the Provost of Brechin for the time being.”
Looking to the case of Sinclair v. Dean of Guild and Bailies of Thurso, 1st Jan. 1729, Mor. 2435, and to the terms of the Acts 43 Geo. III., c. 150, sect. 4; 43 Geo. III., c. 161, sect. 7; and 19 & 20 Vict., c. 93, sect. 5,-I am of opinion that these parties are entitled to act without any property qualification, but then they are all named in an “ Act of Supply," while the four Magistrates, on behalf of whom the present claim is made, are not, so far as I am aware, named in any such Act. The opinion of
(Signed) FRED. L. MAITLAND HERIOT, Sheriff of Forfarshire.
The Opinion of Sheriff Robertson. I concur in the above opinion.
Alex. ROBERTSON. FORFAR, March 14, 1867.
The Opinion of Sheriff Guthrie Smith. The question for decision turns upon the inquiry whether the claimants are Com. missioners of Supply, ex officio, within the meaning of the 19th section of the Valuation Act.
The Act 7 & 8 Geo. IV., c. 75, provides that the following are to be Commissioners, viz. :—First, All persons who shall act as Justices of the Peace for the county. Second, The Right Honourable the Earl of Strathmore; the Right Honourable the Earl of Airlie, and various gentlemen of property whose names and designations are set forth at length. Third, The holders of the following offices for the time being:- The Sheriff-Depute of Forfarshire; the Sheriff-Substitute of Forfar. shire; the Provost of Forfar; the Provost of Dundee; the Provost of Montrose; the Provost of Arbroath; the Provost of Brechin.
The Statute also provides (sect. 4) that the Sheriff-Depute, or Sheriff-Substitute, shall be capable of acting without any other qualification; but, as regards all other persons, it is enacted (sect. 3) that the "several and respective Justices of the Peace, and other persons, hereby appointed Commissioners, shall have such and the same qualifications as are required by the Act 38 George III., c. 5,"—that is to say, they must be in possession, or be infett, in lands of the annual worth of £100 Scots. Nothing is said as to burgh magistrates, but in the case of Sinclair of Fraiswick v. the Dean of Guild and Bailies of Thurso, 1st January 1729, Morrison 2435, it was decided by the Court of Session that they also required no landed qualification, which it was held was only necessary in the case of the particular persons who are Justices of the Peace, or were appointed nomination Commissioners.
It appears to me, therefore, that, in this county, it is only the Sheriff, SheriffsSubstitute, and the Provosts of the five burghs, who can be said to be Commissioners of Supply, ex officio, in any proper sense of the term. Their title to act is the possession of a certain office for the time being, and whenever they cease to hold it they are no longer qualified. The case of a Justice of the Peace is different. He is not entitled to act virtute officii; but, being a Justice, he is entitled to be a Commissioner whether or not his name appears in the list of persons specially enumerated, provided he holds lands of the annual worth of L.100 Scots. His title to act is not the fact that he happens to be in the Commission of the Peace, but that he is likewise in possession of land to the extent stated; whereas the Sheriff, Sheriffs-Substitute, and the Provosts of the burghs, require no such qualification.
That this is the correct reading of the Statute is shown by the fact that, in certain counties, the Bailies of Royal Burghs are expressly empowered to act as CommisBioners ; but, according to the claimants, these persons are already qualified as Justices, so that, in their view, Parliament has been guilty of a piece of surplusage which never could have been intended. Further, the Provost is as much a Justice as any of the Bailies, and it is difficnlt to see why he alone was mentioned if it had been intended that his brother Magistrates should be equally entitled to sit as Commissioners of Supply. For these reasons, I am of opinion that the present claim cannot be sustained.
(Signed) J. GUTHRIE SMITH. DUNDEE, March 15, 1867.
Notes on Qualifications as Commissioners of Supply. By Hugh
Barclay, LL.D., Sheriff-Substitute of Perthshire. The Act of Convention 1667 introduced in Scotland the system of landed qualification for Commissioners of Supply, and was recognised by 1670, c. 3, 1672. c. 5, 1685, c. 12. Nominations are found in the Scotch Acts 1685, c. 12, 1689, c. 32, 1690, c. 6, 9 and 10, 1693, c. 9, 1695, c. 10, and in a long series of subsequent Statutes.
Since the Union the chief Supply Acts for Great Britain are 37 Geo. III., c. 35, 38 Geo. III., c. 5, 26 & 48, 39 & 40 Ġeo. III., c. 31 & 60, 40 Geo. III., c. 68, 43 Geo. III., c. 150 & 161, 45 Geo. III., c. 48, 7 & 8 Geo. IV., c. 75, 9 Geo. IV., c. 38, 2 & 3 Wil. liam IV., c. 129, 3 & 4 William IV., c. 95, 6 & 7 William IV., c. 80, 1 & 2 Vict., c. 57, 7 & 8 Vict., c. 79, 11 & 12 Vict., c. 62, 16 & 17 Vict., c. 111. The Act 38 Geo. III., c. 5, sect. 137 (1798) fixed a landed qualification for all Commissioners “appointed by that Act,” except the eldest sons and heirs apparent of qualified persons. By sect. 139, “any Provost, Bailie, Dean of Guild, Treasurer, Master of the Merchants' Company, or Deacon, Convener of the Trades for the time being
of any Royal Burgh, and any Bailie for the time being of any Borough of Regality or Barony herein named or appointed for putting this Act in execution in any County or Stewartry, or the Factor for the time being of forfeited and annexed estates, shall be capable of acting as a Commissioner for such County or Stewartry.” It seems to have been intended, though it is not clearly expressed, to dispense with the landed qualification in the case of these officials. Mr Hutchison (vol. i., p. 350) thinks that the officials mentioned in the Statute are exempt from property qualification. The Act 38 Geo. III., c. 5, expired in 1805, but is referred to in all subsequent Sta. tutes as fixing the standard of qualification for the office of Commissioner of Supply. Another of the same year (c. 48) introduces and enforces a personal property qualifica. tion, but which apparently applies only to cities and English counties. By a third Act of the same year (c. 60) the Land Tax was made perpetual, and measures were provided for its redemption. But this Act does not contain any new provisions as to Commissioners. The Act 43 Geo. III., c. 150 (1803), sect. 4, with the exception of the Sheriff and Sheriff-Substitute, requires under a penalty the qualification appointed by 38 Geo. III. 43 Geo. III., c. 161, sect. 6 & 7, with a similar exception, requires the same qualifications in Commissioners. The Act 45 Geo. III., c. 48, Dames both for England and Scotland; and for several counties there are nominations of Commissioners ex officio. There is added to all the nominations and appointments the words, “ being duly qualified to act as Commissioners of the Land Tax, in pursuance of the orders and directions of the Act 38 Geo. III.” But sect. 3 provides
that all persons who shall act as Justices of the Peace of or for any County, &c., in Great Britain, being duly qualified as aforesaid, may act as such Commissioners, although not specially named in this Act.” A similar clause is repeated in 45 Geo. III., c. 48, sect. 3. The plain meaning of this clause is, that all persons either personally named or appointed as holding office must be duly qualified, and, in addition, all acting Justices of the Peace, though not named, are, if also duly qualified, Commissioners of Land Tax. The object rather appears to be, that acting Justices ought to be named (and generally were so), but in case of any omission such Justices should be held as “named." There is no clause dispensing with their qualification, but the very contrary. An opposite view would lead to this anomalous result that a Justice named in the Act, and sitting in virtue of his nomination, would undoubtedly require the landed qualification; but to one not named in the Act, and sitting in virtue of his office as an acting Justice, the qualification would be unnecessary,
Mr Burn (Chitty's Edition, 1845, voce “ Taxes," says, “all Justices of the Peace duly qualified may act as Commissioners of the Land Tax," and refers to the Acts above cited.
The Act 7 & 8 Geo. IV., sect. 75, (1827), reciting 38 Geo. III., c. 5, is nearly in the same terms as the 45 Geo. III. In almost every county list in Scotland it adds several Commissioners ex officio. But such official appointments are rare in the lists applicable to England. The plain reading of the Statute, like the former, is, that all Commissioners, either in virtue of special individual or official nomination, and acting Justices generally nominated, must be duly qualified under the prior Statutes, unless, perhaps, by some of the Statutes specially excepted, as may be plausibly maintained for Sheriffs. The Act 9 Geo. IV., c. 38, (1828), recites the 7 & 8 Geo. IV., c. 75, and repeats in some counties the nomination clauses with additional names. But it ex. pressly (sect. 2) requires the same qualifications in all the several persons appointed by the previous Act and this Act, as were required by the Acts 38 Geo. III., c. 5 & 48. An indemnity is provided (sect. 4) for those who have acted without being properly named in the prior Act, but not for those who may have acted without qualification.
The Act 2 & 3 William IV., c. 127, (1832), has the usual condition annexed, " that the several and respective persons hereinafter named shall and may, and are hereby empowered and authorized (being duly qualified) to put in execution the Acts 7 & 8 Geo. IV., c. 75, and 9 Geo. IV., c. 38." The next nomination Act, in similar terms, is 3 & 4 William IV., c. 95, (1833), and is followed by the Acts 6 and 7 Wil
liam IV., c. 7, 1 & 2 Vict., c. 57, 7 & 8 Vict., c. 79, 11 & 12 Vict., c. 62, and, finally, 16 & 17 Vict., c. 111, (1853),* and the last of the series (so far as regards Scotland) contains the usual provision as to the persons named " being duly qualified.” During the period embraced by the nomination Acts the selection of official Commissioners varied in different counties. In some counties many more holders of office were included than in others, and in some the clause from the Act 38 Geo. III. was repeated so as to include all persons acting as Justices of the Peace for the county.
The Valuation and Commissioners' Acts 1854 and 1856 (17 & 18 Vict., c. 91, and 19 & 20 Vict., c. 93), which raise the present question, introduced into Scotland a much more judicious mode of annually making up the list of Commissioners, so that nomination Acts are no longer required. The first of these Acts (sect. 19) declares the qualification for Commissioners of Supply to be “the being named as an ex officio Commissioner in any Act of Supply,” or having certain defined interests in lands and heritages within the county. The second Act provides for making up an annual list of Commissioners appearing as qualified according to the Valuation Roll, “ otherwise than by nomination ex officio.” The tisth section provides for making up an annual list of Commissioners in each county which is declared to be conclusive, * except as regards such Sheriffs and Magistrates of burghs and towns for the time being, as may in any subsisting Act of Supply be constituted ex oficio Commissioners of Supply without being required to possess any property qualitication, who and whose successors in office shall be entitled to act and vote as such Commissioners virtute officii, and without being inserted on such list.” The amending Act 20 Vict., c. 11, does not affect the question. "Acting Justices of the Peace” are not mentioned in the excepting clause, while Sheriffs and Magistrates of burghs are expressly excepted.
The question is of more extended application than the now very limited scope of the Land Tax. All the duties which formerly devolved on the Freeholders were by the Reform Act (2 and 3 William IV., c. 65, (1833), devolved on the Commissioners of Supply, who as such are Commissioners for executing the assessed Tax Statutes, and have the management of County Police, and other such matters.
It may be argued that all who before 1856 were officially entitled to act as Com. missioners of Supply without property qualification are still entitled so to act; and that the mention of Sheriffs and burgh Magistrates in sect. 5 does not derogate from the right generally recognised in the first section, seeing that rights and jurisdictions are neither conferred or withdrawn by inference or implication. On the other hand, the officials specially mentioned in sect. 5 may be held to have been, in the view of the Legislature, the only officials at that time exempt from property qualification. The Acts 43 Geo. III., c. 150 & 161, expressly exempted Sheriffs from the qualification distinctly required from all other Commissioners, and this exemption appears still to exist unless it can be held to be inferentially repealed by subsequent nomination Statutes, in which they are appointed, along with all the others, with the uniform provision “ being duly qualified ;" a condition which is perhaps applicable only to persons named, and not to those appointed in virtue of office. If the Act 38 Geo. III., c. 5, sect. 139, intended the officials therein specially mentioned to be exempt from the qualification, they appear to have the same dispensation now as then. But the only right conferred on "acting Justices" is in 45 Geo. III., c. 48, and 7 & 8 Geo. IV., c. 75, which merely authorised them, “ being duly qualified,” to act as Commissioners without being specially named. It would appear that the Acts 17 & 18 Vict., c. 91, and 19 & 20 Vict., c. 93, could not, and did not, confer on them any higher right than they formerly possessed. If they were previously entitled, in virtue of their office, to act as Commissioners without landed qualification, then assuredly these Acts did not abrogate but rather confirmed their right. But as this qualification was previously necessary, it follows that neither of these Acts did away with this necessity or conferred on them any higher right than they previously possessed.
The only authority in Scotland bearing on the question is Sinclair v. Dean of Guild and Bailies of Thurso in 1729, Mor. 2435, 8672. The action was to recover the penalty from the defenders for acting as Commissioners of Supply without possessing the requisite qualification. The defenders were found not liable, for the Lords thought that these qualitications related only to the particular persons' nominatim appointed Commissioners, and not to those appointed virtute officii. This decision was prior to the
• 20 & 21 Vict., c. 46, names Commissioners for Sutherland alone. 26 & 27 Vict., c. 101, and 29 & 30 Vict.. c. 59, though stated in the Index to apply to Great Britain and Ireland, are confined to England and Wales.
Acts introducing “acting Justices of the Peace” as Commissioners, and leaves the question open as to them.
In Forfarshire a claim was lately put in on behalf of certain Bailies of Royal Burghs, who, as such, are Justices of the Peace, to have their naines added to the Roll of Commissioners of Supply, although not having the landed qualification. The Commissioners remitted to the Sheriff and the two Sheriffs-- Substitute, who united in an elaborate opinion adverse to the claim. The question is of wider scope Dow than in former times. At one time few were on the Roll of Justices, except those entitled to be so in virtue of office, who were not also on the Roll of Commissioners of Supply; but now, though the property qualification is so greatly lowered in value, many are Justices who are not qualified to be Commissioners. If the burgh magistrates be right in their contention, all such parties have an equal claim so soon as they qualify themselves by acting. But a question will still remain, what is the necessary amount of action necessary to raise a Justice from dormant to active life? Will one, two, or three acts be sufficient, and in what sphere of duty and how to be proved? Will the exercise of voluntary jurisdiction, as in taking an affidavit, qualify; or must it assume the more formidable aspect of wielding the sword of justice over some unfortunate robber of a turnip field, or still more criminal shooter of a hare or partridge.
NOTES ON A JUDICIAL SCANDAL.
“What naturally most strikes the Edinburgh mind is that the court performs its function badly; but in England the feeling must be that it has no adequate function to perform. If we are to assume the new causes to number 1,100 a year, we may safely assume the defended canses, which should occupy the court, not to number 700. Jury trials are not well managed in Scotland, and are ruinously expensive, in consequence of which there are comparatively few of them, and we venture to say that they have never in any year exceeded seventy. The disposal of seven hundred causes, issuing in seventy jury trials, we may accordingly assume as the function of the Court of Session, occupying thirteen judges and fifty-eight other persons, at a cost of £65,000. Now, is this function an adequate one? Let the answer appear from the judicial statistics for England.
“ The Courts of Queen's Bench, Common Pleas, and Exchequer have between them fifteen judges, being only two more than officiate in the Court of Session, and this is the work they performed last year. In the three courts there were issued altogether in the year 1866, 133,160 writs of summons, and 533 writs of capias, in which frocesses there were 38,410 appearances. 42,316 judgments were pronounced, and 3,114 cases were tried at Westminster and entered for trial at Nisi Prius on circuit. Of 1,752 cases entered at Nisi Prius, 1,216 were tried on circuit. To take the courts in detail, there were issued in 1866 in the Court of Queen's Bench, 43,146 writs of Summons and 188 writs of capias ; the appearances were 11,947, and there were 14.060 judgments ; in the Court of Common Pleas, 38,771 writs of summons and 161 writs of capias, the appearances being 13,236, and the judgments 11,405; in the Court of Exchequer, 51,213 writs of summons and 184 writs of capias, with 13,227 appearances and 16,851 judgments. The arrears of business in the courts are trifling, and the amount of new business constantly increasing. Thus it appears that fifteen judges in these courts transact something like a hundred times the amount of business that it transacted by the thirteen Scotch judges; and that the year's business of the Court of Session would not occupy one of these courts for much more than a single term. Does not this suggest that the Court of Session requires not only to be put in good working trim, but also to be shaped and proportioned to the amount of business it has to perform?
· How the Scotch judges, with so few cases before them, occupy their time puzzles the English lawyer till he studies the details. Much of their time is lost in trifling work which in England falls to the clerks of court, and in unnecessary speeches from the bench. For the rest their time is simply not occupied in public business at all. The costly court sits only for half of the year. In the Inner House the judges, eight in number, sit nominally from eleven o'clock till four o'clock, with a break of from half an hour to three quarters of an hour for luncheon; practically