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Second Division, and so on, till the whole cases are allocated. With regard to the Lords Ordinaries, the same system is recommended the case last lodged being marked for the senior Ordinary, and the others in their order. This proposal overturns entirely the privilege of choice, which was given to the profession about twenty years ago, and which some branches of the profession appear to estimate highly. The practice must have some advantages, seeing that it is so strenuously insisted on by three bodies, whose voices on this matter are so much entitled to be heard, as those of the Writers to the Signet, the Society of Solicitors before the Supreme Courts, and the Faculty of Procurators of Glasgow. These three bodies united, are undoubtedly the parties by whom almost the whole of the litigation in the Court of Session, is supplied. We do not suppose that, if the Lord Advocate used the whole power of government to carry his measure against their united wishes, that he would fail. We doubt, however, the propriety of such a proceeding, against so decided and so respectable an opposition. The object might be attained without resorting to a measure, that would create discussions in Parliament, and call up hostile deputations to London, and which, after all, would not remove the evil. Inequalities would soon arise, in regard to the amount of business before the different Ordinaries and the two Divisions. One Ordinary and one Division would work faster than another, and a run of heavy cases might completely overwhelm a particular Judge or Division. Fresh delays would hence arise ; and there could be no remedy, as at present, by choosing a less burdened Court; as the rule of compulsory division would be ever operating to increase the burden upon the heavy laden, as upon the rest.
In these circumstances, a less irritating scheme has been proposed, which, still preserving the freedom of choice, increases the available machinery for the work. This is to abolish entirely the Outer House, with the exception of a single Judge, whose duty would be confined to Bill Chamber work and the preparation of Records ; and to constitute the other four Outer House judges into a Third Division. Although we have heard the proposal sanctioned by the opinion of experienced lawyers, we venture to dissent froin it, as being fraught with many inconveniences. Look at the present system of pleading. It no longer consists of elaborate printed minutes of debate, studied in retirement, and leisurely considered ; but the most important, equally as the most insignificant and trifling cases, are disposed of after an oral pleading, which affords less leisure and less opportunity for testing the value of an argument. There is thus the risk of hasty judgment upon erroneous impressions and imperfect data. The double discussion, once in the Outer House, and once in the Inner, tends to correct this evil. The debate before the Lord Ordinary is an admirable preparation for the debate before the Inner House; and by the time when the case arrives before either of the Divisions, the parties are prepared to meet each other upon the whole merits, on some of which, at the first discussion, either or both may have been taken by surprise. In Chancery (and most of the cases in the Court of Session are Chancery cases), a similar system exists in the appeal from the judgment of the ViceChancellor to the Lords Justices, or to the Lord Chancellor. The result of the double discussion, is the satisfaction of the parties, in the great majority of cases, with the decision, and the preventing of many appeals to the House of Lords, which would inevitably be taken, if there were only one hearing in Scotland. Highly, therefure, as we estimate the opinions of those by whom this scheme is recommended, we protest against it, as one fraught with imminent danger and dissatisfaction.
A third proposal has been made recently, to which there are fewer objections, and to which we ask a candid consideration. It is proposed to preserve, as at present, the freedom of choice; to divide the Court into three divisions, composed of three judges cach, and to preserve the Lords Ordinaries in the Outer House. The Third Division, it is proposed, should be made up by taking one judge from each of the two Divisions, and one Lord Ordinary from the Outer House. At present, only four Lords Ordinaries sit daily, although there are five upon the staff-each one of them being allowed one working day a-week to himself at home, for the purpose
of preparing his judgments. This privilege is anomalous and unnecessary. None of the judges of the Inner House are exempted from labonr during the five working days of the week ; and seeing that Monday is a blank day, there is no reason why the Lords Ordinaries should not prepare their judgments like the judges of the Divisions, during their evenings. By abolishing this privilege, there would be four Outer House judges daily sitting as at present; and an equal amount of work would be done by them, as they do under the existing system.
The advantages of this scheme are obvious. An additional Court would be given to the country without a farthing of additional expense, except, perhaps, some increase of salary to the President of the Third Division. The freedom of choice would still be preserved; and the work of the country would, by the additional force, be kept up to within a month or two from the day when the last case was enrolled before the Courts. Three judges would constitute a better Court than four. We often have practical experience of the working of it, on the occasions when one of the judges of the Divisions is prevented by illness froin attending. The decisions are as satisfactory as when the Court is full, and the inconvenience of an equal division of opinion is never felt. It is, however, said, that it might happen that the judgment of a Lord Ordinary might be altered by the votes of two judges of the Division, while one of them concurred with the Outer House judge; and thus there would be two judges against two. The case, we venture to say, is exceptional, and would not occur once in twenty times. To provide, however, against it, it is proposed that, instead of the alternative being an appeal to the House of Lords, there might be the option given to the defeated party of appealing to a kind of Exchequer Chamber, composed of two divisions, and in this way the objection would be entirely obviated.
Such are the various proposals at present afloat in the profession. They refer to a matter of great importance, not merely to the profession, but to the country at large, at present suffering from an evil of which there cannot be a greater—a surcease of justice. It is impossible that the next session of Parliament can be allowed to pass by without some legislative action being taken in the matter.
The state of the Sheriff Courts throughout Scotland has been considerably altered by the operation of the Act 16 and 17 Vict., cap. 80, passed on the 15th of August 1853. This statute enacts (sect. 3), that a defender who enters appearance, shall, upon the Court-day, appear before the sheriff, who shall hear the parties in explanation of the grounds of action, and the nature of the defence to be stated thereto; and, if satisfied that no farther written pleadings are necessary, he shall cause a minute, in the form of the schedule (D) annexed to this Act, to be written in the summons, setting forth concisely the ground of defence, which minute shall be subscribed by the parties, or their procurators, and the sheriff shall thereupon close the record, by writing under the said minute, 'Record closed, and signing and dating the same; but if the sheriff shall be satisfied that the record cannot properly be made up, without condescendence and defences, he shall pronounce an order for the same.” The mode in which this provision has been carried out by the sheriffs, or rather by their substitutes, has been very unsatisfactory. The cases are comparatively few in which the sheriffs order a record to be made up by condescendence and defences; and the consequence is, that the record is closed upon the most meagre and defective statement in the shape of a defence. It is sometimes impossible to make out what the defence consists of, except a general denial of the summons; and the pleas of parties can only be guessed at, by reading the proof. The proof itself may wander into anything that the parties please, as they are not controlled by a definite and specific record. The case comes up to the Court of Session, and there new pleas are stated, and a new case arises ; and the matter is ultimately decided upon grounds that, perhaps, were never thought of at first. Every case may now be carried at once from the sheriff to either Division of the Court; and, in nine cases out of ten, the Lord Ordinary is passed by, and the Inner House at once resorted to. During the last session, the judges have had occasion frequently to remark upon the imperfect character of the records, which is due entirely to the sheriffs not exercising the discretion allowed them, of ordering parties to state their cases deliberately in a condescendence and defence. It was thought, of course, when the statute was passed, that, by dispensing with records, useless litigation would be prevented. It has had the contrary effect, and has tended very largely to the increase of the expense, by rendering it necessary, even after a proof has been led, to have additional records made up. At the present moment, the rolls of the Division contain several advocations, open to the objection we have mentioned ; and, while it was a great boon conferred upon the community, to allow them a direct appeal from the sheriff to the highest tribunal in Scotland, much of the benefit that would otherwise result from it is lost, in consequence of the imperfect materials with which the Court have to deal—a matter the more to be lamented, as their judgment upon facts is final and unappealable to the House of Lords.
In other respects, the Sheriff Court Act has been a great relief to Sheriff Court procurators. The abolition of written pleadings, and the substitution, in their place, of oral debate, have freed them from much drudgery. The oral debate has, of course, thrown out of practice the writers who are not gifted with powers of forensic oratory; but on those who have this qualification it has conferred a large increase of business. They can now dispose, by oral discussion, of several cases a-day, with less labour than they could write one minute of debate ; receiving, at the same time, higher remuneration for the same labour, viz., L.1, 11s. 6d. for a debate before the sheriff-substitute, and the larger fee of L.2, 2s. (as is becoming), when they address the greater dignity of the sheriff.
The country has not had time to feel the working of the new Bankrupt Act. The subject is too important to be dismissed with a paragraph here ; and, although several treatises on it have appeared, or are advertised as ready to appear, it can only be after the statuté has stood the strain of a year's experience, that any safe practical guide can be composed. In the practical working of the Bankrupt Laws, it is impossible not to see the importance of that provision in the Act which enables a sheriff to award sequestration. As if to encourage applications to the Sheriff Court, in preference to the Court of Session, the matter may be accomplished at a fourth part of the expense at which it could be done by the Lord Ordinary on the Bills. Attached to the statute, there is a schedule containing a table of fees payable under the Act, from which it appears that, in the Court of Session, ten shillings must be paid, in order to obtain sequestration, while, in the Sheriff Court, it can be as effectually accomplished at the small figure of 2s. 6d. Every other step in the proceedings bears very nearly a similar disproportion in the expense in the two Courts. Matters that can be performed in the Sheriff Court for one shilling, or a sixpence, can only be done in the Court of Session at two and sixpence. Indeed, the practitioners in Edinburgh appear to have been somewhat poorly represented, or the influence of the country procurators brought more powerfully to bear on the Lord Advocate, in the preparation of the Bankrupt Statute. It only required to go a step further, and bar the Lord Ordinary on the Bills from awarding sequestration at all. As the
matter now stands, sequestrations are proving a positive grievance to Edinburgh agents. Of course, all bankruptcies will now be awarded in the Sheriff Courts, with the exception of the very few that may be applied for in behalf of persons resident in Edinburgh. The services of the Edinburgh agents are, however, necessary still, for the purpose of getting the notices inserted in the “Gazette," and entries in the minute-book, for which his fee is 6s. 8d.—he having, at the same time, to disburse the fees for the “Gazette" and the record, with the pleasant prospect, generally, of receiving payment of his account (without any interest on his outlay) from his country correspondent, at the distance of a twelvemonth,-if at all.
But considerations of a more important character, as to the working of this part of the Statute, cannot be overlooked. They refer to the influence on the mercantile and trading classes of a scheme which makes bankruptcy familiar and frequent, and so, in time, not discreditable. It is not long ago since a bankrupt required to wear the dyvour's habit. There are men still living who have seen this exhibition. Until the passing of the recent Statute, sequestration was, to a trader in the country, a matter of a grave and formidable character, which could only be obtained by special application in Edinburgh, and, in the very outset, was attended with considerable trouble and expense. These obstacles are now entirely removed. A country grocer may obtain sequestration by stepping across the street to the Sheriff-clerk's office, as easily as he can obtain a small debt complaint. When difficulties arise, as they must do in a cominercial country like this, instead of a trader resorting to the assistance to be obtained from friends, and struggling to render available his own property to the utmost, the idea of paying his debts of 20s. in the pound, by presenting his creditors with a dividend of 5s. or 10s., at once presents itself to his mind as an easy solution of the difficulty. The ease with which this sovereign remedy for pecuniary embarrassment can be obtained, will soon make it perfectly familiar to every one in difficulties. During the last two months of November and December (during which the new Statute has been in force), no less than eighty-eight sequestrations were awarded in a period of commercial prosperity; while, during the same two months of last year, only forty-two (not one-half) were awarded! These figures, even with such a short experience of the working of the new Statute, are alarming. They can, however, give no proper representation of what may ultimately be the effects of the Statute. At the same time, we scarcely think that it was either a very expedient or politic thing to insert such a clause (which ought to have for marginal note, “ Bankruptcy made easy”), merely for the purpose of giving to our friends in the country the five pounds formerly, obtained by an Edinburgh writer, as his fees in the awarding of sequestration.
Let us now entreat the attention of the heads of the Justiciary VOL. I.-NO. I. JANUARY 1857.