Page images

nary ought to be read over to each witness by the shorthand writer for two or perhaps for three purposes-first, as a check or aid to his own accuracy; second, as a means of getting at the exact and complete truth of the matter; and, third, to fix the facts more thoroughly in the memory of the counsel who is to speak on the case immediately, without the use of the shorthand notes. Although, in our former article on this Act (November 1866), we suggested that reading over the evidence might well have been dispensed with in the cases in which the Act still requires it, we admit that two of these considerations deserve attention. The exuberant confidence deservedly placed by all in the gentleman who has for many years ably fulfilled this responsible and laborious duty in most of the proceedings in the Court of Session, has prevented people from ever thinking of the need of a check or an aid to the accuracy of the shorthand writer. It is possible, however, that the suggestion we have indicated will press itself more and more on the minds of practitioners, as, in the great increase of this kind of business, they find that that gentleman cannot be in two places at once, and still more so, as they find the difficulty of obtaining a really reliable verbatim reporter of legal proceedings. It should be remembered, however, that the new form of proof differs from proof by commission in this material respect, that the judge who is in the first instance to decide on the evidence, hears it and sees the witnesses, and would probably not be precluded from correcting the notes ex intervallo with the co-operation of the shorthand writer (cf. Morrison v. Maclean's Trs., May 8, 1865, 3 Macph., H. of L., 42). The Lord Ordinary may be a sufficient check on the accuracy of the shorthand writer, and it will always be in his power, where any doubt exists as to the competency of the shorthand writer, to dictate the evidence to him as expressly provided by the Act. The second reason assigned for having the evidence read over is also a material one, though we fear that it would tend to encumber the proof with explanations. The third, we imagine, will not be regarded by most counsel as possessing any weight. Upon the whole, it seems almost certain that the difficulty of rapidly reading over the evidence from unextended shorthand notes-a very serious difficulty even to those most proficient in the art is enough to prevent this suggestion from being carried out in practice. And it would certainly defeat one purpose of the Act

[ocr errors]

of Parliament by adding materially-probably two hours per diem-to the length of the proceedings.

A most serious consideration, under the new system of taking proofs, is the condition of the Courts. It will be absolutely necessary to find some decent accommodation for witnesses within reach of the Ordinaries' bars. But this grievance is a trifle compared with the want of fit accommodation for the Court itself. Most people have long given up hoping for any improvement in the system of heating and ventilating the Outer House and the Courtrooms; but the atmosphere, which exhausts the strength of the strong man who spends a day at a proof in one of the little boxes called by courtesy the Lords Ordinaries' Courts, and the smell of humanity and gas which meets the visitor who enters at any time after mid-day, urgently call for a remedy. It has been suggested we know not by whom-that the passage behind the Outer House Bars might be dispensed with, and a considerable space might thus be added to the court-rooms. We commend this suggestion to the intelligent consideration of Mr Mathieson.

In conclusion, we summarize the matters with which it appears that an Act of Sederunt may fairly deal. It should

1. Specify the grounds on which diets of proof may be adjourned. (See Journ. of Jur., Nov. 1866, p. 319, sqq.)

2 Provide as to appeals upon the admission or rejection of evidence, and as to the competency of "sealing up" (ibid).

3. Provide that the Lord Ordinary's judgment on proof shall always separate fact and law (ibid).

4. Provide as to the time when counsel shall speak, and as to the number and order of speeches.

5. Lay down general rules to guide the discretion of Lords Ordinary in regard to the recovery of documentary evidence.


[SOME of the views expressed in the following article differ from those which have generally been advocated in this Journal, e.g., as to the prohibition of appeals from the Small Debt Court upon points of law. But our duty is not merely to maintain a certain set of views. It is rather to afford the means of enlightened

discussion, and to reflect, so far as we can, the opinions of large sections of the legal profession. The article was in type before the Lord Advocate's intention to introduce extensive measures of law reform, including a reform of Sheriff Court procedure, was formally announced.]

The statute at present regulating the form of process in the Sheriff Courts was the result of much discussion, as to the best mode of rendering the recovery of debts more speedy and less expensive. Many supposed that the remedy for all the expense and delay complained of in ordinary actions, was to be found in an extension of the Small Debt jurisdiction; and they founded their weightiest arguments on the success of the Small Debt Courts with a jurisdiction extending to £8, 6s. 8d., and on the successful working of the County Courts in England, with a jurisdiction extending to £50, admittedly instituted on the model of the Small Debt Courts of Scotland. The views of those who advocated an increase of the Small Debt jurisdiction were, to a certain extent, given effect to; and in 1853 by the statute 16 and 17 Vict. cap. 80, while the form of process in ordinary actions was much altered and many improvements introduced, the Small Debt jurisdiction was extended to £12.

After thirteen years' experience of the working of that statute, the unanimous opinion of the public and the profession is that the alterations introduced by it have been improvements on the former practice. We may now call the attention of our readers to the consideration of the subject, with the view of pointing out some further changes which experience has suggested as likely to increase the usefulness of the Sheriff Courts. This seems to be a peculiarly fitting time for doing so, as commercial bodies have been bestirring themselves in order to obtain some further reform in Sheriff Court legislation; and it has been stated that the Lord Advocate is preparing a measure introducing considerable alterations on the present practice.

In dealing with ordinary actions, the Sheriff Court Act introduced a much shorter form of summons, and a new mode of making up records by a minute of defence. The mode of recording oral evidence was entirely changed; oral pleadings were introduced, and an almost entirely new form of procedure instituted for obtaining the judgment of the Sheriff on appeal.

The most serious objection to the provisions regarding ordinary actions is that there is no cheap and speedy mode of conducting

a process in which the sum in dispute is of small amount. The same rules of procedure are applicable to all ordinary actions, whatever the amount concluded for. There is some difference in the charges sanctioned by the table of fees for causes under £25, under £100 and above £100, respectively; but the form of process being the same, and the trouble to the agent consequently the same whatever the value in dispute, the difference in the scales of charges is necessarily small. In any case where the sum in dispute exceeds £12, there may be condescendence and defences, and revisals perhaps on separate papers, an oral debate, a proof, and a debate on the import of the proof while the case is before the Sheriff-Substitute; and on appeal to the Sheriff, a reclaiming petition and answers-just as much writing and argument as may be about a case where twenty times the amount is concluded for. In a case under £25, the losing party may have to pay a sum of expenses equal to, if not exceeding, the sum in dispute. Some strong measure is surely required to prevent such an abuse,-an abuse that gives the greatest offence to the respectable practitioner. In our remarks on the different steps of procedure in an ordinary action, we shall point out some alterations in the form of process whereby in ordinary actions for small sums the form of process may with safety be shortened, the expense of litigation diminished, and also, as a necessary result, delay avoided.

The shorter form of summons has been found to be free from objection in practice. It gives all the information necessary to bring a cause into Court, or necessary where the defender allows decree to pass against him in absence. The cost of framing the summons is, in cases for small amount, the only objection to it. A charge of 15s. for drafting the summons, is a high charge where the sum sued for is £15 or £16. In undefended cases this charge, along with others, makes the cost of obtaining a decree amount to a sum never less than £1 15s.; by a very great deal too large a sum of expenses for obtaining a decree in absence for less than £25. In a large class of cases, the Small Debt form of summons might be usefully introduced, perhaps in all where the sum sued for does not exceed £50. That form of summons, with the written claim lodged along with it gives all the information necessary to bring a cause into Court. More care would be required, and of course would be bestowed by agents, in preparing the claim or statement of the grounds of action, served along with

a summons that may be the foundation of an ordinary action, than is perhaps at present bestowed on the preparation of Small Debt claims by the parties, even with the aid (in most cases where aid is had) of the Sheriff Officer employed to serve the summons. In undefended causes, the expense of obtaining decree in absence might be reduced, by granting decree in the Small Debt Court, where a decree in absence rarely costs above 5s. Where defenders appear and state a defence, all cases above the Small Debt ordinary jurisdiction might be at once put to the ordinary roll, and further proceeded in as ordinary actions. That actions commencing with a Small Debt summons should be litigated in the form applicable to ordinary actions is no new proposition. The Small Debt Act of 1837 (1 Vict. c. 41 § 14) made special provision for cases under £8 6s. 8d. originating in the Small Debt Court, being, by order of the Sheriff, carried on under the same rules of procedure as apply to ordinary actions, when recourse to that form of procedure was found to be necessary, "in consequence of any difficulty in point of law, or special circumstances of any particular case." It would be no very serious change on such a provision to make the Small Debt jurisdiction extend to all cases under £50, with this reservation, that whenever the amount sued for exceeds the sum to which the Small Debt jurisdiction extends in litigated causes, if a minute of defence is lodged, or the defender appears and objects to decree, the case shall be remitted at once to the roll of ordinary actions, parties heard on the grounds of action, and the nature of the defence, and the case thereafter proceeded with as an ordinary action. At present, cases are often so remitted from the Small Debt Court to the ordinary court, where questions of difficulty occur, or where questions are raised as to local or burgh taxes, rights to levy tolls and the like. No difficulty ever arises from the summons being in the Small Debt form, as parties state the facts and pleas on which they found in condescendence and defences. Thus the parties have, if they desire it, an opportunity of obtaining not only the judgment of the Sheriff-Substitute, but also that of the Sheriff.

In actions for large amounts the form of the summons is short enough and cheap enough, keeping in view the necessity of fairly rewarding professional services, and making the fee chargeable bear some proportion to the amount of responsibility resting on an agent in conducting litigation, where large sums are at stake.

[ocr errors]
« EelmineJätka »