Judge Ordinary are done depends in great measure the time which a litigation will last, the cost at which it will be conducted, and the clearness with which the points at issue will be brought out. To suppose that you can keep the Judge Ordinary right by having a Judge of Appeal always at his elbow is mere childishness. At the best this would always imply doing the work twice over, once wrongly, and then rightly. In this country the great importance of having a good Judge Ordinary is fully recognised in the Supreme Court, where the Judges Ordinary are selected from precisely the same men as are the Judges of Appeal. I expect the same necessity will be more fully recognised in the inferior courts. The late Law Commission recognised it in two forms, in the necessity of giving higher remuneration, and, in most instances, of giving more employment. Of the former I say nothing here, but the latter is important. Why we should now rigidly adhere to the ancient county divisions, which may have been well enough a thousand years ago for the territorial districts of our local jurisdictions, I can conceive no reasons except fanciful ones. It is surely time now to re-arrange the districts, with a view to the best and most convenient mode of conducting the business. I apprehend, also, that everything shows that the Crown must soon assume the responsibility of naming the Judge Ordinary. And I think it follows from what I have said, that the arrangements for the hearing of appeals in the Sheriff Court will be strengthened. But I have no wish to enter here on topics which will lead to controversy.

In regard to the jurisdiction of the courts, I think everything shows that it must be greatly extended in width, so that there may be no question-or almost no question— involving small pecuniary amounts, which parties who

cannot afford to go to higher courts, may not have determined, in the first instance at least, in the lower. It is also to be expected that from time to time additions may be made to our jurisdiction by transferring to us duties at present discharged by the other inferior courts. (v) Perhaps this extention may be accompanied by a limitation; and it may be found to have advantages to give to the Supreme Court a privative jurisdiction in those cases involving large pecuniary amounts, of which it has at present practically the monopoly.

In the end it is possible that we may reach the simplicity with which it used to be thought we had started. It has not been found beyond the power of foreign governments, or the ability of foreign jurists, to draw up codes, in which the jurisdictions of all the Courts, and their modes of proceeding, are set out in clearness and order. There is no reason creditable to our government, or to our profession, why we have not now a code of procedure. The waste of money alone which occurs on account of ignorance of the proper court, or of the proper form of proceeding for ascertaining a right, is in this country an intolerable abuse; and, in the present state of the law, it is impossible for the most careful judge or the most prudent practitioner to avoid it. We grope in the dark for what ought to be as clear as day. I am under the mark when I say that it requires a Scotch lawyer to read not less than a hundred statutes, or less than a thousand decisions, before he can be said to have covered the field of Scotch law procedure. And it would be well if

() Significant of progress in two respects is the Act passed in 1875, empowering the transfer of the summary criminal jurisdiction of the

Magistrates of Glasgow to a person possessing the qualifications of a Sheriff-Substitute, and appointed by the Crown.

he could say that in the end he had found everything distinct. It is far from being so. The statutes and the decisions are alike fragmentary and confusing, giving the idea that nobody had ever had time in our busy country to do more than provide in some way for the difficulty of the moment. How often in the future must justice miscarry, that is, how many more suitors must be wronged,-before the remedy comes? Even the small instalment of improvement which would be given by the easily effected step of carrying a consolidation statute to clear the statute books, would be of inestimable advantage-perhaps not so much for what it would do as for the distinctness with which we should then see that the greater work of codification was not beyond our capacity.

PART I.

OF THE CONSTITUTION AND JURISDICTION

OF THE SHERIFF-COURTS.

1. The Principal Sheriff.-The qualification of the principal Sheriff (a) was fixed by the Heritable Jurisdiction Act at that of an advocate of three years' standing; and the office was appointed to be held ad vitam aut culpam. (b) The Act also made various regulations as to residence for a certain part

(a) Throughout this work the word Sheriff is used in the sense which is at once strictly accurate and popular, as including both principal and substitute; and whenever it is necessary to distinguish between the two, the distinguishing adjective is used. The word Sheriff-Depute is in disuse; 9 Geo. IV. c. 29, § 22.

(b) 20 Geo. III. c. 43. Before his appointment the advocate must either have been in actual practice, or have been a Sheriff-Substitute; 1 and 2 Vict. c. 119, § 2. The oath to be taken on admission is contained in 31 and 32 Vict. c. 72, as explained by 34 and 35 Vict. c. 48.

of the year within the county, but these have all been abrogated, and none of the principal Sheriffs are now bound to residence, with the exception of those of Edinburgh and Lanarkshire, who, by a subsequent Act, must reside within six miles of Edinburgh and Glasgow respectively. The principal Sheriff's of the other counties are now bound only to hold certain courts annually within their counties.(c) By Acts passed in 1853 and 1870 (d) their number was diminished, their duties having considerably changed both in amount and character through the effect of the legislation of the first half of the present century. From having been Judges Ordinary of the county, the principal Sheriffs have risen to be mainly Judges of Appeal on the decisions of the Sheriffs-Substitute, against which appeal to them is competent. But they still have the power of judging in the first instance when they choose to exercise it; and in some cases they are still bound to act in that capacity, as, for example, in the Small Debt Circuit Courts, which they are bound to hold once in each year. With regard to Sheriffs appointed since August 1870, the Home Secretary has power to prescribe the courts they are to hold and the duties they are to perform personally. (e)

2. Sheriff-Substitute.-The Sheriff-Substitute is appointed by a commission from the principal Sheriff.(ƒ) The qualification for Sheriff-Substitute is that he has been admitted an advocate or an agent in the Court of Session or in one of the Sheriff Courts, at least three years before his appointment.

(c) 3 Geo. IV. c. 49; 1 and 2 Vict. c. 119, § 2; 16 and 17 Vict., c. 80, § 46; 33 and 34 Vict. c. 86. (d) 16 and 17 Vict. c. 92; 33 and

34 Vict. c. 86.

(e) 33 and 34 Vict. c. 86, § 13. (ƒ) 20 Geo. III. c. 43.