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JUDGE OR JURY? UNDER THE EVIDENCE SCOTLAND ACT, 1866. It is remarkable that one of the most important statutes affecting Scottish judicial precedure since 1815 should have been carried through Parliament at the end of a session, almost unnoticed by the public, and, so far as we are aware, without undergoing

discussion whatever, except that which it received at two meetings of the Faculty of Advocates. It is perhaps equally remarkable that, during the three months which have elapsed since it received the royal assent, there should have been an entire absence of speculation as to its probable influence on the administration of the law. And yet it is an Act which, even if it should fail to increase the sum of litigation in the Court of Session, may double the work of the Lords Ordinary, which will change the aspect of the Outer House by filling it with witnesses from all parts of Scotland every day of the session, and which (say some) virtually abolishes trial by jury in civil causes. We do not say that the Act now under consideration is a circuitous attempt to effect this object; but it will certainly put the Scottish system of jury trial to the test. It will either abolish it, or it will produce reforms of very great magnitude, both in the statutory rules of procedure and in the conduct of causes by professional men. Whatever may be the result in this respect, we are certainly arrived at the beginning of very great changes ; and it does not necessarily imply a profound admiration of this statute, if we account it a fortunate thing that a Whig and a Tory Lord Advocate were found to agree in thinking that proof by commission was a bad thing, and that perhaps if a stab could be quietly inflicted on jury trial, no one would after all be very greatly the worse for it.


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The rapid working off of the causes in the Debate Rolls of the Outer House under the regulations of the Act of Sederunt of July 15, 1865, was the immediate occasion of the passing of the Act. It may be that the marked change in the Outer House Rolls was to some extent a temporary phenomenon, arising from the operation of the 11th section of the Act of Sederunt, which requires either renunciation of probation or an order for proof at closing the record, itself, by the way, one of the largest reforms effected for many years, and one of which this Act is but the natural consequence.

The fact of there being a probability or even a possibility of the Lords Ordinary having time themselves to take the proof in most of the causes depending before them. was enough to doom to death that practice of proof by Commission which originated when the Court, sitting as one chamber, could not possibly hear in presentia, or by the instrumentality of Lords Ordinary on Oaths and Witnesses, the proof in every case, and which became too deeply rooted to be supplanted by an imperfectly contrived and imperfectly worked system of trial by jury.

It was therefore proposed in the Parliament House, that steps should be taken to substitute the Outer House judges for Commissioners in the taking of evidence in ordinary cases.

In consistorial causes that change had been effected five years before, with the most satisfactory result; and the use of shorthand notes had been found to contribute in an unexampled degree both to expedition and certainty in the attainment of justice. Why, it was naturally asked, should the same system tried with such success in the annual forty matrimonial causes, not be “beneiicially applicable” to all cases of disputed facts ? No one thought of proving the negative, and it was moved at a meeting of Faculty, and unanimously agreed, that the Lord Advocate and Dean of Faculty (Moncreiff) should be asked to introduce a bill on the subject. Its ostensible and declared purpose was to abolish the absurd and much abused system of proof on commission, by substituting for it the method of leading proof before a judge in the manner authorized by the Conjugal Rights Act. How far it has effected this end, and what more it is likely to do, will appear in the course of a brief analysis of its provisions.

In order to understand the bearing of the statute, it is necessary to keep steadily in view the modes in which, until 10th August last, disputed facts could competently be ascertained in

the Court of Session. Apart from Consistorial Causes, and the novel methods authorised but not practised under 13 and 14 Vict. c. 36, SS 48, 50, two manners of inquiry were practically available—Jury Trial and Proof on Commission.

By 6 Geo. IV. c. 120, § 28, (applied to the Court of Session by 1 Wm. IV. c. 69, § 2), the following actions are held as appropriate to be tried by jury, namely:Actions for Injury to the Person, whether real or verbal ;

Injury to Moveables, or Land where the title is not in question; Damages for Breach of Promise, Seduction or Adultery; of Damages for Delinquency or Quasi Delinquency of any kind ; against Shipmasters and Owners, Carriers by Land or Water, Innkeepers or Stablers, grounded on the principle of the Edict Nautæ, Caupones, Stabularii; of Nuisance; of Reduction on the Head of Furiosity and Idiotcy, Facility and Lesion, or Force and Fear; on Policies of Insurance; on Charter parties and Bills of Lading; for Freight; for Carriage of Goods by Land or Water; for Wages of Masters and Mariners of

Ships or Vessels. In all causes not enumerated above, the 13th and 14th Vict. c. 36, made it competent for the Lord Ordinary, but only with consent of both parties, or after obtaining the leave of the Inner House on a verbal report made on the motion of one party, or for the Inner House when the cause depended there, to appoint the evidence to be taken by commission; and the Court could competently allow proof by commission even in any of such enumerated causes, except where the action was for Libel; for Nuisance; or properly and in substance an Action of Damages.

In all cases in which issues have been adjusted,* it is competent under § 46 of the last cited Act, though it is now unusual in practice, where both parties consent, to try the issues before the Lord Ordinary without a jury, and his findings in fact are final. The result of experience has been, that this mode of arriving at a conclusion is not popular. Thus by 13 and 14 Vict. c. 36, the facilities for jury trial were greatly increased, and on the other hand proof by commission was made competent in many causes appropriated to trial by jury by 6 Geo. IV. c. 120, and the Lords

• Even in enumerated causes, see, eg., Balfour v. Wordsworth, 9th July 1854, 16 D. 1028; Hood v. Williamsons, Feb. 8, 1861, 23 D. 496; where damages were concluded for.

Ordinary were empowered in all cases to try issues and special questions of fact without the aid of juries. In short, the general scope of that Act was very much to enlarge the choice of litigants as to the mode of proof. Still it remained, to use the words of Lord Justice Clerk Inglis, “ the general rule that cases involving questions of fact should go to a jury, and parties who wish a proof on commission instead of a jury trial, need to show special cause to induce the Court to allow it.' Cameron v. Kerr, July 6, 1861, 23 D. 1257.

The immediate occasion of the introduction of jury trial was the multitude of appeals on questions of fact with which the House of Lords was overwhelmed. But the true cause lay in the inherent defects of the system of proofs by commission,—the want of control over the conduct of the proof by the commissioner, which resulted in intolerable delays, and sometimes in worse abuses, and the necessity imposed on the judge of deciding the facts without having seen one of the witnesses. These evils were, indeed, partially cured by the introduction of jury trial; but it is perhaps one of the strongest arguments that can be urged against that object of English idolatry, at least as it has been administered in Scotland, that with no rival but this wretched system of commissions, it should after fifty years of probation continue to be distrusted and detested by a large class of the people. But though some abatement of the evil was found in restricting the number of causes in which proof before a commissioner was competent, abuses were still frequent, and delay was still the characteristic of Court of Session procedure. It was not surprising, therefore, that when a favourable opportunity occurred, some prominent Scotch lawyers should desire to abolish entirely the evil thing. It was natural, too — whether it was expedient or not on a large view of the question, we do not here inquire—that they should seek to do so by substituting for it not trial by jury, but trial by judge, which has been largely used under the Act 13 and 14 Vict. c. 36, and which with addi tional improvements has been in operation for five years in matrimonial causes.

Let us see how this has been done by the Statute which has just been passed, 29 and 30 Vict., c. 112. After a preamble, referring to the expense and delay in the administration of justice, produced by the practice of taking proofs by commission, the first section enacts that, “except as hereinafter enacted, it shall not be

competent in any cause depending before the Court of Session to grant commission to take proof.” The last words, we need hardly observe, save all commissions already granted.* The abolition is as wide and complete as possible, unless, indeed, the exceptions are found to be unreasonably extensive. These are contained in sec. 2. It is there provided that it shall be competent to the Court, or to the Lord Ordinary, to grant commission.

1. To take the depositions of havers :

2. Upon special cause shown, or, with consent of both parties," to take the evidence in any cause in which commission may, according to the existing law and practice, be granted.”

3. To take the evidence of witnesses residing beyond the jurisdiction of the Court, or who are physically unable to attend the Diet of Proof.

4. The existing practice as to granting commission to take the evidence of aged and infirm witnesses to lie in retentis before a proof has been allowed, is not to be affected by the Act.

The second head of the exception is not excusable. It reduces the language of the Act to absurdity, although, it may be, there still remains a useful piece. of legislation. Let us combine the preamble, and the first clause of section 1, with this second exception “ hereinafter enacted,” and see how the Act will read.

"Whereas the practice of taking Proofs by Commission in the Court of Session in Scotland is productive of unnecessary expense and of great delay; be it therefore enacted—

“I. It shall not be competent in any cause depending before the Court of Session to grant Commission to take Proof.

“ II. Provided always that it shall be competent to the judges of either division of the Court, or to the Lord Ordinary, upon special cause shown, or with consent of both parties, to grant commission to take the evidence in any cause in which commission to take evidence may, according to the existing law and practice, be granted.”

In other words, because Proofs by Commission are productive of unnecessary expense and delay, be it enacted that the Court, may, if they please, perpetuate this creation of unnecessary expense and delay. Nay, more, it would rather seem that the Lord Ordinary's power of granting Proofs by Commission is absolutely extended and made as large as that of the Inner House. Unless this Act is construed with reference to the 13th and 14th Vic.

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See Donald v. Donald, Nov. 12, 1861, 21 D. 25.

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