LEAVE. FIRST READING. (Hansard, 22 April 1875)

§ THE LORD ADVOCATE

, in moving for leave to bring in the two following Bills—a "Bill to alter and amend the Law relating to the administration of Justice in ordinary Civil Causes in the Sheriff Courts in Scotland," and a "Bill to alter and amend the Law relating to Appeals in Summary Prosecutions before 1491 inferior Judges in Scotland"—said: I have to ask the indulgence of the House while I make a brief statement of certain points which I consider it to be right that the public and the legal profession should have in mind when considering the provisions of these Bills. In 1868, when the present Prime Minister was in office, a Royal Commission was issued for the purpose of inquiring into the constitution and jurisdiction of the various Courts, civil and criminal, in Scotland. The Commissioners examined many witnesses during the next two years, and after having issued some interim Reports, they issued their final Report in July 1870. The result of their investigations and Reports was favourable to the procedure before the Court of Session. It had been made the subject of legislation in an Act passed in 1868 which I had the honour to introduce, and I believe that the opinion of the public and of the profession generally is that there is no immediate call for further legislation in regard to the procedure in the Court of Session; and I venture to say there is no Court in the United Kingdom in which there is less delay in obtaining a decision on the merits of a cause than in that Court. But the proceedings before the sheriff courts call for immediate improvement. The object of the first Bill is to effect such improvement in the direction of the recommendations of the Commissioners. I wish to explain why the Bill is limited to the proceedings in the ordinary civil court of the sheriff. I consider that to embrace in one Bill all the points connected with the sheriff court would make the Bill too large, and that there might be much difficulty in passing it through Parliament this Session. The Bill is, therefore, confined to the jurisdiction and procedure in the ordinary sheriff courts in Scotland, and does not deal with the small debt or other courts not coming within the ordinary civil jurisdiction of the sheriff. These will form the subject of legislation hereafter. The Law Courts Commissioners recommend that the sheriff should have power to appoint tutors and curators, factors loco tutoris and judicial factors, where the value of the estate, heritable and movable, is sworn not to exceed £1,000, and that the officers, when appointed, should be under the superintendence of the Accountant of Court. I have given much 1492 consideration to this recommendation, and am desirous, if possible, to give effect to it; but I have ascertained that there may be various practical difficulties which must be overcome before proposals giving effect to these recommendations can be laid before Parliament. I do not, therefore, intend to deal with these appointments in the present Bill; but another Bill will be required for the purpose of making some improvements with reference to proceedings before the Accountant of Court and also for extending his powers to judicial factors, and in that Bill, or it may be by Amendments in this Bill, I hope to give effect to the recommendation of the Commissioners to which I have just alluded. The Commissioners recommended that there should be an extension of the jurisdiction of the sheriff courts, by allowing them to judge in regard to titles and rights to heritable or real property—matters which are not at present within their powers. In most countries rights of real property have been reserved for the jurisdiction of the superior courts; but in the County Courts of England power has been given to the Judges in these courts, I believe, to entertain questions involving real property of the yearly value of £20, and I think the same power is vested in the Civil Bill Courts of Ireland. I propose that the sheriff courts in Scotland, should have power to entertain cases involving real property of the value of £1,000, being about double the value admitted in England and Ireland. The defender may remove the litigation at the outset to the Court of Session, subject to the provision that even if successful in his defence he shall not recover a larger amount of expenses than that to which he would have been entitled if the litigation had proceeded in the sheriff court. The procedure clauses of the Bill follow the provisions of the Court of Session Act of 1868, which have given satisfaction and expedition in that court, and it is hoped may put an end to the considerable delays which exists in most of the sheriff courts. The second Bill which I move for leave to introduce is one in accordance with the English—Jervis and other—Acts, which permit appeals from Justices of the Peace and stipendiary magistrates on points of law submitted in a case approved of by the magistrate in regard to the facts held to be proved 1493 by him, and it also allows a case to be prepared by a magistrate before whom a summary case has been brought, when he feels a difficulty in disposing of the case, or when there are conflicting decisions before other jurisdictions. This measure is also in accordance with the opinions of the Law Commissioners, and will be of advantage in cases where ordinary appeals at present are excluded, and will remove the unpleasant state of matters which exists when opposite opinions, as is sometimes the case, are given upon the construction of the same Act. When the law is laid down by the Supreme Court, in such cases there will be a rule for the guidance of sheriffs and magistrates, and the same decision will be expected to be followed by inferior Judges.