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Report by the Commissioners appointed ing thus paved the way, by obtaining
under the Act, entitled, “ An Act con- a general view of the ancient and precerning the Administration of Justice sent constitution of the Court, a sketch in Scotland, and concerning Appeals of a report was drawn up, suggesting to the House of Lords,' pursuant to such alterations in the forms now in an Address of the Hon. House of use, particularly in the mode of bringCommons, dated the second June One ing parties to an issue on points of thousand eight hundred and nine. fact, as it was conceived would pro
duce a salutary effect upon
the judi(Ordered by the House of Commons to cial procedure of the Court. The be printed.)
committee ordered the sketch to be
printed and circulated, together with (Concluded from p. 403.)
the collection of forms, not only among THE Commissioners now proceed to all the members of the commission,
state successively the subjects re- but among the Judges of the Court of ferred to each committee, the members Session, and referred the whole to the of which it was composed, and the pro- consideration of a general meeting: gress which they have respectively made Accordingly, at a general meeting, in the business entrusted to them. held on the 18th of February last, the
The first committee, consisting of sketch of the proposed regulations was the Lord President of the Court of made the subject of long and deliberSession, the Lord Justice Clerk, the ate consideration; and the final resoDean of Faculty, and Mr Robert lution of the meeting was adjourned Syme writer to the signet, with the to the fourteenth of March, when the Vice-Preses, was appointed to exa- Judges of the Court of Session were mine and report upon the forms of pro- invited to attend. cess as they are now in use in the At this adjourned meeting, several Court of Session and Bill Chamber, of the Judges assisted and delivered and any alterations or amendments of their sentiments, and the written opithe same which might be recommend- nions of others were read by the clerk. ed to attain the purposes of the com- After long deliberation, the matter mission. This committee held two was again adjourned until the 18th of long meetings; and by their direction March last, when the meeting finally a compilation has been made of all resolved, " That having fully inquired the forms of process in the Court of into the existing regulations for conSession, from the earliest period of its ducting processes before the Court of establishment, with the variations which Session, the meeting is of opinion, that, they have since undergone.
with the exception of the alterations This collection is large, including which may
for the intromany forms not now in use ;
duction of trial by jury in civil cases (if tains extracts from ancient manuscripts, that measure shall be judged expedient) or from law books of anthority, from the present forms are now, or by authothe acts of Parliament regulating the rity of the Court itself, may be easily forms of the Court, and from the acts rendered fully adequate for the purpoof sederunt upon the same subject, and ses of justice and dispatch of business, is the only complete digest of the rules without parliamentary interference. of Court, whether ancient or modern, And the meeting are further of opinion, that has ever been exhibited. It con- that the late division of the Court has tains also two curious and ancient 'greatly and will still more relieve the tracts concerning the manner of hold. Judges of that extreme pressure of ing Baron Courts in Scotland. Hava business, which was the principal
, if July 1809. 2
not the sole cause of the delay bither- net, with Sir Ilay Campbell Viceto complained of, and has therefore Preses, were appointed to examine and for the present removed the necessity report upon the fees, perquisites, and of any further innovation upon the emoluments due to the present officers forms and constitution of the Court.” of the Court, and practitioners before
After this subject had been discus- the Court of Session (the Faculiy of sed, and the foregoing resolution a- Advocates excepted) the mode of exdopted, the same meeting having tracting decrees, or other proceedings, heard the opinion of the Judges, did the alterations or amendments which resolve, That the part of the fifth sec- might be introduced with advantage tion of the judicature act, which pro- in these particulars, and the proper vides, that “ Two Judges, cne for compensations to such individuals as each division, shall officiale each week might be found entitled to make in the outer-house," has in practice claims on account of their perquisites been found attended with great incon- and dues being altered or abolished, venience and hinderange of business; with power to call upon all parties and that the Commissiobers ought to concerned for returns, containing the make an interim report, expressing it information necessary to form a judg. as their opinion, that a bill should be ment on these various particulars. To forthwith proposed to Parliament for this conimittee were afterwards adrepealing or altering that particular ded, the Dean of Faculty and Mr enactment of the statute, and provid- Robert Syme, in room of the Lord ing, that, for the present, only a sin- Advocate and Mr Solicitor, who were gle Ordinary, to be taken from each called to attend their duty in Parliadivision alternately, shall officiate in ment. the outer-house, with power, however, The second committee, at their to the whole Court, or a quorum of first meeting, on the 10th of Decemnine Judges, to be assembled by the ber 1808, with a view to collect the Lord President, to restore the present information necessary to execute the mode of attendance by two Ordinaries charge entrusted to them, directed in one week, in case it shall at any fu. that the Principal and Deputy Clerks iure time be judged expedient. A of Session, and Extractors, should be draught of such interim report has called upon for an aggregate account been prepared and laid before the ge- or abstract of their fees, for the last neral meeting held at Westminster on three years, shewing the average athe sixth current, and is still under mount thereof for that period, and the consideration of the Commission- classing the same under the different
It contains the reasons upon heads whence they arose, together which the meeting of the eighteenth with statement of the authorities uniof March grounded their resolutions, der which they were levied. as well on the state of judicial forms The Principal Clerks were also diin the Court of Session, as on the in- rected to furnish the form or schedule convenience supposed to arise from of an abridged extract or exemplificathe present system of acting by dou. tion of a judgment of Court, modified ble Ordinaries, and, if approved of by according to the spirit of the judicaa general meeting of the Commission ture act; and iwo Principal and two ers, will exhaust the subject referred Deputy Clerks of Session were apto the first committee.
pointed to attend the Committee, to The second committee, consisting give such explanations as might be re. of the Lord Chief Baron, the Lord quired. Advocate, the Solicitor General, Mr The following persons and bodies Warrender deputy-keeper of the Sig- have been also called upon for infor
mation :- The Assistants of the Prin- summons by which the party is calcipal Deputy Clerks of Session, and led into Court, and which ought to the .Collectors of Clerks' Dues; the contain the plea of the pursuer or Keeper of the Minute Book, Keepers plaintiff; second, The inventory of of Inner and Outer-House Rolls, and writings produced ; third, The defenAuditor of Court; the Principal and ces, containing the plea of the defenDeputy Clerks of the Bills ; the der; fourth, The answer to these deKeeper of the Signet, or his Deputy, fences, where sach is allowed ; fifth, as representing the Clerks to the Sig. The condescendence or specification net; the Preses of the Society of In- of facts required by the Judge from corporated Agents or Solicitors before either party, with the other party's the Court, the Preses of the Society answer; sixth, The various interlocuof Unincorporated Agents, and the ters of Court, in regular dales; lastPreses of the Body of Lawyers' Firstly, The final judgment, arranged in Clerks, which four bodies comprehend form of what is technically called the all the persons entitled to act as a- Grand Decerniture. And the Comgents before the Court of Session.- mittee expressed their opinion, That The information was required as to nothing else should, on any pretext, the rate of fees and the authority as- be included in an extract, unless upcertaining them, but not as to the a- on the proper charge of the person reverage amount for three years, which quiring insertion thereof. No report it was neither necessary nor perhaps has, however, been made by this conpossible to ascertain; the average a- mittee to any general meeting, because mount of receipts for three years were the following important subjects, alrequired from the macers, house-keep- though often and carefully considered, ers, and door-keepers of the Court of have not yet received their final deSession.
termination. After information upon these sub- In the first place. It appears from jects had been received, the commit- the report of the various parties contee proceeded to consider the most cerned, supported by the various eviimportant and inost urgent question dence referred to, that a very large before them, the present form of ex- annual sum will be necessary to intracts, the alteration of which is point- demnify the Principal and Deputy ed out as a principal object of the Clerks of Session and Extractors, for Commission. On this important sub- the loss of income which they must ject, after considering a very long re- necessarily sustain by the abolition of turn by the Clerks of Session, with the present mode of extracting deannexed abstracts, the committee, on crees, which is, in fact, their princithe 1st of March 1809, agreed to pal source of income. It is difficult make an interim report to the Com- to say how such a sum is to be raised, missioners, to the following effect :- even supposing (if the appointments First, That the present form of ex- of the clerks should be thought exortract, including the written pleadings bitant) that the full indemnification in the cause, be, in future, abolished, shall be restricted to the lives of the without prejudice to the Clerks of present incumbents, as it seems hard Session giving extracts or certified co- and unjust that a charge hitherto de pies of all or any part of the proceed- frayed at the expense of the litigants ings, to any party requiring the same, themselves, should be entirely thrown at his own expense. Secondly,
Secondly, That upon the public at large. The comthe form or extract, in future, shall, mittee were, therefore, desirous to exin ordinary causes, originating in the amine the merits of several plans proOuter House, contain only, first, The posed for defraying these indemnifications, either by substitution of other Clerk of each Commissariat, the Clerk dues of Court, or by a general tax up- of each Royal Burgh, have also been reon litigation. And this being a mat- quired to give in a return of the annual ter of no small delicacy and impor- amount of fees, perquisites, and emotance, they did not consider, that their luments received by them, their Deduty would be fully discharged until puties and Substitutes, arising from they should be enabled to report litigation before their respective courts, thereon, as well as upon the proposed separated into the heads under which alteration in the form of abstracts.- they arise, and shewing by whom, and The reports of the other officers of under what authority they are levied Court, &c. although of subordinate and received. importance, must also receive serious The committee did not think it neconsideration before the committee cessary to call upon the clerks, or ecan be considered as having acquitted ven the judges of these subordinate themselves of the business intrusted to Courts, to make any report on their them. But, as the information has forms, being satisfied that the report been fully obtained, there can be no
of the Sheriffs would be so full and doubt that they will speedily be able satisfactory, as to enable the committo make an ample report to the Com- tes to form a general estimate of the missioners upon this, as well as other state of all inferior jurisdictions, and points.
to suggest any improvements necessary The third committee, consisting of in their form of procedure. The perthe Lord Justice Clerk, Baron Nor- sons thus called upon for information ton, the Hon. Henry Erskine, and are considerably upwards of an hunAdam Rolland, Esq. Advocates, to- dred, and returns have been made by gether with the Vice-Preses Sir Ilay many of them to the clerk; but from Campbell, were directed to report up distance, indisposition, and a variety on the form of procedure, and fees ex- of other causes, several of them have igible in the trial of civil questions be- not returned any information, and some fore the Circuit Courts of Justiciary, returns which have been received are, and in the Commissary, Admiralty, in various respects, imperfect, and reSheriff, Burgh, and Baron Courts, quire explanation. and other courts of inferior jurisdic-. When all the information required tion in Scotland. This committee, shall have been obtained, it will be having met on the 13th of December still necessary to arrange, methodise, 1808, did, with a view to obtain the and make an abstract of its import, so necessary documents to ground their as to render it subservient to the proreport, direct the Clerk of Commis- posed purpose of reformation.
This sion to call upon, first, the Sheriff-De- third committee has therefore been pute of the shire of Mid-Lothian, re- able, as yet, to proceed no farther in quiring him to call a meeting of the discharge of their duty, than by takSheriffs of Scotland, and procure a re. ing the necessary steps to obtain the port on the general nature of the pro- information they required, by urging ceedings in Sheriff Courts presently in returns from the persons who have not use, with any alterations or improve- yet made any, and explanations of that ments which their experience might which they have received. enable them to recommend ; second- The separate branches of the duty ly, on the Commissaries of Edin- of Commissioners, delegated to the burgh ; thirdly, on the Judge of the three committees, being, first, the reHigh Court of Admiralty, both to the gulations of the forms of process be. same effect. Each Circuit Clerk of'fore the Court of Session ; secondly, Justiciary, each Sheriff Clerk, the the abolition of extracted decrees and
regulation of fees in the said Court, and carried on under the commission. together with the claims of indemnifi- Indeed the terms of the warrant uncation which may arise ; thirdly, the der the statute are so broad, as to regulation of forms and fees before comprehend a complete revisal of the the other civil courts of Scotland, - whole judicial procedure in Scotland, The Commissioners apprehend, that varied as it is, by local custom, thro' these branches do, with the question very numerous inferior courts and jurespecting the introduction of trial by risdictions, together with the regulajury in civil cases, comprehend the tion of the fees exacted by the numewhole business intrusted to them un- rous office-bearers in each of those der the royal warrant.
courts, and an investigation of the The detail already given, shews, multiplied and complicated forms of that their report on one of the most the Supreme Court itself, whose reguimportant objects of the Commission- lations alone fill a printed volume of ers (the forms of court) is almost rea- three hundred pages. The warrant dy to be laid before His Majesty; and points likewise to the abolition of the that, in the investigation of the other mode hitherto observed of recompenpoints, such progress has been made as sing the clerks of court, with the nuthey have been able to attain, consi- merous dependents and retainers in dering the extensive and complicated their service, and to the substitution field of inquiry which those objects of some other fund, which shall be as presented, and the important points, little burdensome as possible to the both as to public policy and indivi- public, while it affords indemnification dual rights, which they necessarily in- to the persons in possession. The warvolved. The Commissioners have rant also requires a very difficult and held eleven general meetings, nine important duty, in directing the conin Scotland and two in London; the sideration of introduction of the trial three committees have held various se- by jury in civil cases, for which, if it parate meetings, and much business has should be judged advisable to adopt been done, less formally, under the the measure, it will be necessary to superintendence of individual members contrive a machinery of legal form, of the commission.
which cannot easily be engrafted upSeveral of the Commissioners are on the law of Scotland, without much Judges of the Supreme Courts, others and mature consideration: The Comare professional men, whose avocations missioners, in a matter of such great are both numerous and important.- delicacy and importance, have thought During the sitting of the courts, more themselves bound to proceed with numerous meetings could scarcely have the utmost caution in forming an opibeen held; but had this been possi- nion to be reported to His Majesty, ble, it would not have forwarded the on the propriety of making this great purpose of the commission, since no alteration on the law of Scotland, the useful general deliberation could have extent to which the alteration
be taken place, until the reports were ob- carried, and the means by which it tained from the persons of whom in- may
be effected. formation has been demanded. Much Subscribed, in obedience to an orof this could not be furnished without der of a general meeting of Comgreat labour and research. The re- missioners, held on the 20th day port of the Principal Clerks of Session of May 1809, by is an example of the extent of the vo
WALTER SCOTT, luminous investigations commenced
Clerk to the Commission.