SHERIFFS' COURTS (SCOTLAND). (Hansard, 14 February 1853)

§ The LORD ADVOCATE
said, he rose to move for leave to introduce a Bill to facilitate procedure in the Sheriffs' Courts of Scotland. His predecessor in office had intended to introduce a measure for the same object, but was prevented from doing so by the resignation of the late Government. He had, however, placed at his (the Lord Advocate's) disposal all the materials which he had collected on the subject—an advantage of which he had to a considerable extent availed himself in the preparation of the present Bill. He wished as briefly as possible to state to the House the object and scope of the measure. It would be a great mistake to suppose that the Sheriffs' Courts in Scotland were analogous in any material degree to the County Courts in England. Scotland was not, like England, now trying an experiment for the first time, for the administration of cheap and expeditious justice, 93 through the medium of local tribunals. They had had Sheriffs' Courts in each county of Scotland for many centuries; and after the rebellion of 1745 those courts were placed on the footing upon which they still stood. A sheriff-depute, or acting sheriff, was appointed from the bar of Scotland for each court, with the power of appointing a substitute to act in the county. The jurisdiction of the sheriff was unlimited as to pecuniary amount—he was also a criminal judge, and a Ministerial officer, and, in fact, the functions and office of the sheriff in Scotland were necessarily hound up with the whole action and working of the legal and political machine. The system of Sheriffs' Courts was not unpopular in Scotland—he believed the reverse of that was the fact. Still abuses had crept in, and delay and expense were occasioned from three causes, which it was the object of this Bill to remove—namely, first, because the pleadings were not conducted orally, but were committed to writing; secondly, because the proofs or depositions must also be committed to writing; and the House might easily judge what a fruitful source of expense and delay this would give rise to; for sometimes these proofs extended over weeks, months, and even years, whereas the process of taking witnesses' evidence viva voce was a very different and much more expeditious process indeed; and, thirdly, because facilities were given and used for appealing on mere matters of form from the sheriff substitute to the sheriff principal. To remedy these evils he proposed to deal first with the ordinary jurisdiction of the sheriff in cases above 50l. This category included questions of injunctions, and of actions to be performed or prohibited, which might not be capable of pecuniary estimate, but they were often very important, and he was not prepared to assert that there should not be, in regard to this class of cases, a more deliberate mode of judgment. He would next deal with cases of between 12l. and 50l., and then with cases under 12l.: but in regard to them all he proposed was, to do away entirely with written argumentative pleadings and depositions. This was, no doubt, a considerable innovation upon the practice of Scotland, but he believed it was perfectly safe and practicable, and he was sure it would be most beneficial. He proposed, instead of written proofs and pleadings, that in all cases the sheriff who heard the case should take a note of the 94 evidence, and that if the judgment should be reviewed the review should proceed upon his notes; and whenever a case was argued it should be argued orally, and the sheriff in like manner should take a note of the argument and state his judgment, and the review should proceed only upon his notes. He did not propose to interfere with the office of sheriff principal, hut he would provide that in cases over 50l. (looking at the importance which might attach to them), some form of oral pleadings should take place before him. He also proposed to introduce into the ordinary Sheriffs Court the same form of process which had been adopted with success in the Sessions Court under the Act known as Rutherfurd's Act. Then with respect to cases below 50l., the question which arose was this—whether they should be treated on the same footing as cases above that amount, or whether the small-debt jurisdiction (as it was called) should extend to them. He proposed to take a medium course, and therefore, in regard to cases between 12l. and 50l., he provided that a short form of summons and of defence should be adopted, and that there should be an appeal allowed to the sheriff principal, but without written pleadings, in the manner before-stated. An appeal to the sheriff under this Bill would not cost more than half-a-crown. The real point to be aimed at in a measure of this kind was, not to sacrifice any one of the great elements of justice, soundness of decision, economy, and expedition, to the attainment of the rest; but to combine all three together, otherwise the machine would fail of its due end. He had a strong impression that many cases might occur between the limits of 12l. and 50l., with respect to which it was not at all desirable that they should do away with the safeguards now existing. In regard to cases below 12l., he should leave the jurisdiction as it was at present, only allowing procurators to act in cases above 5l. He did not propose either to make any change with respect to the office of sheriff substitute. In 1818 a Parliamentary Commission was appointed to consider, among other things, how far it would be expedient to abolish the system of the sheriffs principal resident in Edinburgh. The Commission reported that in their opinion it would not be desirable to compel the she-riff's principal to reside in their counties, and that there wore great advantages in having the services of lawyers who were in daily attendance upon the sittings of the 95 Supreme Court. The same question was discussed in 1835, when a preponderating weight of testimony was given in favour of the non-residence of the sheriffs principal. According to the present system, in every county you have a resident local administrator of the law, well competent, by his knowledge of its practice, to act in that capacity. He could not forget that one of the weapons most easily blunted was that of legal change. When Sir Robert Peel was in office as Home Secretary, a rule was laid down that no man should be appointed sheriff who had any local connexion with the county, and this rule had been adhered to since that time. He had introduced into this Bill a provision with respect to removals of tenants, which he thought would do away with a very great anomaly now existing. He proposed that a stamped lease should be held a sufficient warrant on a summons of ejection. He did not propose at present to make any change with respect to the salaries of the sheriffs principal, and in regard to sheriffs substitute he was not at present in a position to say anything, not having yet had an opportunity of communicating with the Government on the subject. He trusted that the measure of which he had thus given an outline would in a great measure remove the evils at present felt, and thus confer a material boon on the people of Scotland.

MR. HUME
said, he thought part of the learned Lord's statement would be received with great satisfaction—he meant that part which promised the removal of abuses, than which nothing could be more absurd; but he doubted much whether the people of Scotland would be content with a half measure like this, when they saw how much room there was for more important changes. He doubted very much whether the learned Lord was right in making the distinction he proposed to establish between 12l. and 50l. cases. Simplification of process and lessening of costs should be the two great objects which the legislator should propose to himself. He was sorry that any defence of legal sinecures should be attempted at this time of day, and would counsel the Government to abolish the office of sheriff principal. The people of Scotland wished to have an efficient local judge, properly paid, instead of keeping thirty-three or thirty-four gentlemen in Edinburgh, who had very little to do, and were very highly paid. Scotland would not be content without the same measure 96 of law reform which had proved so satisfactory for England.

§ MR. CUMMING BRUCE
said, the explanation of the Lord Advocate had given him great satisfaction. He was quite of opinion that the useful and honourable office of sheriff principal should be maintained. The sheriffs substitutes were a very useful set of judges, and had been of great service to the country, but the confidence felt in their decisions would be impaired if the power of appeal should be withdrawn; and therefore he was pleased to find that the right hon. and learned Gentleman intended to retain it.

MR. CRAWFURD
said, he thought the amount of the sum in dispute offered no ground at all for establishing any distinction in respect of the mode of trial. He should wish to see the whole system of the Courts in question reduced to a simple method of oral examination, and also the appellate system abolished. It was his intention, had not the present Bill been introduced, to have proposed the appointment of a Committee to inquire into the subject, and he should still reserve to himself the right of bringing in a Bill if he were not satisfied with this.

§ MR. DUNCAN
said, he approved of the general outline of the measure, and was happy to find that the Lord Advocate was disposed to adopt any suggestions proceeding from Scotch Members which were calculated to improve the Bill.