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c. 36, as an Act in pari materia, and the Court applicando sin gula singulis hold the relative powers of "the judges of either division of the Court,” or of “the Lord Ordinary,” to be unaltered as regards the cases in which proof may be granted according to the existing law. At all events the Lord Ordinary requires in future neither the consent of parties, nor the leave of the Inner House--but may act either on special cause shown, or of consent, not only where he could grant commission formerly, but even where the Inner House has had conferred upon it at least in express words, no such power, namely, in cases of libel, nuisance, and damages—as we shall see when we come to section 4.
The words “special cause” in this second, and also in a subsequent section, may mean very much or very little. The words were thrust into the Act at the last moment, it is reported, on the urgent remonstrances of a committee of the Writers to the Signet ; and in yielding to them the Lord Advocate has in a great measure rendered the measure self-contradictory and illusory. The words give a large discretion to the judges, and according as they construe and work the measure will be its success or failure. The discretionary power conferred by the Court under the Act 13 and 14 Vict., to allow proof by commission in certain of the causes enumerated in the 6 Geo. IV. c. 120, has hitherto been exercised very sparingly ;* and, even of other cases, a fair proportion has been tried by jury. The policy of previous Acts has been rather to encourage trial by jury, and it cannot be said that the judy a of the Court of Session have failed to give jury trial a fair chance of establishing itself in public confidence and favour aš against proof by commission. Now that we have an Act encouraging proofs before judges, we do not doubt that they will fairly and wisely use the discretion entrusted to them as between the various manners of taking proof which are now competent. The additional labour imposed on themselves by the new method of trial will certainly have no influence in making the judges in the Outer House more favourable to proofs by commission, and the greater expense and delays which attend proofs before a commissioner, not to mention other disadvantages, will prevent agents and counsel from having recourse to it, except in very special circumstances. Even when parties consent, it does not seem to be imperative, though it is competent, for the Lord Ordinary to grant proof on commission; and an interlocutor of a
* Watt v. Watt, June 5 1857, 19 D. 787.
Lord Ordinary allowing proof on commission, on special cause being shown, may, it would seem, be reclaimed against. It may no doubt be contended that the construction of the Sheriff Court Act, sec. 15, adopted by the First Division in M Douall v. Brown, July 13, 1865, 3 Macph. 1079, is applicable to the case. The words of the statute construed in that case were preciseshowing good cause to the satisfaction of the Sheriff why no procedure had taken place." The Act, however, contained a very precise limitation of the privilege of review, and it was held that there was no power of appeal from the Sheriff-Substitute to the Sheriff, or the Court of Session. In the Act before us there is no exclusion of review, and it rather appears that such an interlocutor on special cause shown, whether under this section or under section 4, falls under the 14th section of the Judicature Act, allowing review by the Inner House of any order of the Lord Ordinary for the ascertainment of facts which do not require to be ascertained by jury trial, but excluding appeal except on leave expressly granted, and reserving the effect of any objection to the course of proceeding in any final appeal on the merits.
The third section provides that, “where proof shall be ordered by one of the divisions of the Court, such proof shall be taken before any one of the judges of the 'said division, or of the Lords Ordinary, to whom the Court may think fit to remit, in one or other of the modes above provided in section first hereof, and his rulings upon the admissibility of evidence, in the course of taking such proof, shall be subject to review by the division of the Court in the discussion of the report of the proof; and when the Court shall alter any finding of the Judge rejecting evidence, they shall, if they think the justice of the case requires it, remit to have such evidence taken." Does this exclude the device, sometimes found useful in practice, of sealing up questions and answers of doubtful competency, to await the decision of the Court ? We believe this has been done by the Lords Ordinary in taking consistorial proofs only in two or three instances, in cases wbich never came before the Divisions, and probably it will be quite competent for Lords Ordinary taking proofs under this Act to follow such a course. We see no other escape from expensive miscarriages if it be found that the Lord Ordinary has gone wrong, as there is no provision for reviewing a Lord Ordinary's ruling in a question of evidence, except under section 1, under a reclaiming note against a final interlocutor disposing of the merits
This third section concludes with a provision that, "where a reference to oath is made and sustained; either by the Lord Ordinary before whom the cause depends, or by one of the Divisions of the Court, the deposition shall be taken in one or other of the modes above provided." There can be no doubt of the propriety of this enactment, so far as it goes ; but wbat is to happen when the deponent cannot be brought up before the Court? Is such a case covered by the exceptions in the second section? That depends upon whether sustaining a reference and granting commission to take the deposition falls under the category of “ allowing a proof.” If it does, then this addition to section 3, as it stood in the Bill originally introduced, is superfluous; if it does not, then it is defective.
The fourth section is that the propriety of which will probably cause the keenest controversy ; because it alone clearly touches the great question as to the merits of jury trial. No doubt there is a reading even of the 1st and 3d sections which would strike at jury trials. The new method of taking proofs is to take effect under the one wherever “proof is allowed," and under the other wherever "proof is ordered," and trial by jury is undoubtedly a mode of taking “proof”—but the whole tenor of the act shows that what is dealt with is “proof” as distinct from jury trial The preamble shows that proofs on commission were the special subject of the anxiety of the legislature, nor could there be a doubt upon the subject but for the fact that the provisions of section 4 are an excrescence, and are wholly in excess of the purpose set forth in the preamble, having reference to the very cases in wbich the unnecessary expense and delay of proofs on commission were excluded and in which proof by jury trial alone has hitherto been thought competent. This fourth section enables the Lords Ordinary, "if special cause be shown," or
« with consent” of litigants,—who agree in disapproving of jury trial as an instrument for ascertaining the truth, or in disliking the expense which in our present practice appears to be inseparable from it, or who think that verdicts are so liable to be overturned in the present day,* that a final judgment is more
* If Jury Trial was ever well thought of in Scotland, it was about 1830, when the Faculty of Advocates and the Writers to the Signet both reported in its favour. One cause of this appears from the Returns laid before Parliament under the Jury Court Acts, which show that while 500 causes had been tried in the Jury Court from 1815 to 1830, only seven new trials had been granted on the ground that verdicts were contrary to evidence. Contrast with this the present practice as to granting new
likely to be obtained from the House of Lords than from the Court of Session co-operating with juries,—to select the new mode of taking proof even in those cases of libel, nuisance, and damages, which, formerly, no prayers of parties and no expediency in the special circumstances—nothing in short but a compromise—could withdraw from the cognizance of twelve men in a jury box. That the appropriation of the enumerated causes to jury trial was truly a monopoly in favour of that mode of trial, except so far as relaxed by the 49th Section of the Court of Session Act, was the understanding equally of the bench and the bar. It was so laid down in Livingstone v. Matthew (Feb. 7, 1852, 14 D. 456), soon after the passing of the Court of Session Act.
Even in December last (Magistrates of Rothesay v. M'Kechnie, Dec. 14, 1865 ; 4 Macph. 214), we find the Second Division engaged in a deliberation which implied that in the Outer House none of the actions appropriated to trial by jury, by 6 Geo. IV.c. 120, could, even of consent, be sent to proof on commission ; but we have since been instructed by the Lord Chancellor, with the concurrence of Lords Cranworth and Westbury, in the case of Bickett v. Morris (July 13th 1866), as follows :-“ It appears to me that this is one of the actions appropriate to the Jury Court under the 28th Section of the Scotch Judicature Act. ... The cause ought, therefore, in regular course, to have been remitted to the Jury Court, and the Lord Ordinary had no authority to order the proofs to be taken by commission. But it was quite competent to the parties to agree that the proof should be taken by commission instead of a jury” If, as we suppose we are bound to do, we must accept this subversion of our preconceived ideas as furnishing for the first time to Scotland since 1825 the true reading of the statutes relating to jury trial, then, as regards the competency of trying any of the excepted causes “ of consent” by a proof instead of a jury, Section 4 makes no change ; but it points to the Lord Ordinary, instead of a commissioner, as the person to take it, and allows jury trial to be dispensed with, not only “of consent,” but also “if special cause be shown ;” and it seems to remove a doubt indicated by the trials. We lately commented on a case in which a third trial was allowed, two previous verdicts in favour of the pursuer having been set aside as contrary to evidence. And it is notorious that in almost every trial in right of way cases, such as Jenkins v. Robertson and Jenkins v. Murray (the Elgin and the Bannockburn cases), the jury disregard the law laid down, and the verdict is, as a matter of course, overturned by the Court.
House of Lords in Bickett v. Morris, whether if jury trial be dispensed with “of consent,” the judgment of the Lord Ordinary be subject to review, Such a course will no longer be a proceeding by the Lord Ordinary “ without authority," and the power of reclaiming to the Inner House and of appealing to the House of Lords not being taken away, we must presume that it subsists. Why the language of Section 3, empowering the Inner House to order proofs, and to order them to be taken by one of the Inner House judges, was not repeated in Section 4, it is difficult to perceive.
However this may be, parties and the Lord Ordinary have now, subject to correction by the Inner House, power to abolish civil trials by jury.
We do not mean to say that we are in the least apprehensive of any attempt to reach such a result. But jury trial will be put to the test in a way in which it never was tested before. It will no longer be compared with the most dilatory, expensive, and unsatisfactory mode of proof ever devised. For the future, as we said before, trial by jury will have to compete with trial by judge, under the most advantageous conditions ; cheapness and expedition will be immensely in favour of the latter ; and will, we suspect, greatly outweigh in the estimation of the public and the profession, the thoroughness of investigation, which is, perhaps, the most unquestionable merit still belonging to jury trial. Cheapness, expedition, and certainty, must be restored to this latter system, before it can attain to the same popularity in Scotland which it is alleged to possess in England.
We need say little as to the mode of taking proof introduced by this statute. Section 1st is in its latter clauses nearly a transcript of the 13th section of the Act 24 & 25 Vict. c. 86 (The Conjugal Rights Act). The differences are :-). It authorizes the diet of proof to be fixed in the discretion of the Lord Ordinary, either during session or in vacation. 2. The Lord Ordinary may dictate to his clerk or shorthand writer, instead of noting with his own band, the documents adduced. 3. It would seem from the silence of the Act, that a note of evidence tendered and rejected, or objected to and adınitted, made by the clerk or shorthand writer will be sufficient for the purposes of review, whereas the Conjugal Rights Act requires such note to be made by the Lord Ordinary himself. 4. There is more apparent precision in the new Act as to the grounds on which a proof may be adjourned.