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Roll or List. We approve of this suggestion, as one calculated to eliminate unnecessary expense.

If for any special reason the Reclaimer or the Respondent desires to have the case put down in a different Roll or List from that in which the Principal Clerk has put it down, or to have a specially early hearing, it would, of course, be competent to enrol the case in the Single Bills and to move accordingly.

Unless the Court should order otherwise, it should not be necessary in connection with any of these enrolments to print or lodge any documents for the purposes of the discussion in the Single Bills.

Boxing and Printing.—Various suggestions were made as to the reduction of the number of copies of papers required for boxing. Boxing and Printing are dealt with in Chapter IX of this Report.

Summar and Short Rolls.-Certain witnesses desired that alterations should be made upon the practice of the Inner House as to appropriation of cases to the Summar and Short Rolls respectively. There will always be certain classes of cases which require special preference as regards hearing, but the determination of these from time to time appears to us to be a matter of domestic regulation for the Court itself. If the changes with regard to procedure which we elsewhere recommend are carried out, it is obvious that the present rules of practice-for they are nothing more-which regulate the admission of cases to the Summar Roll will have to be reconsidered and modified to meet the new conditions, and no doubt they will be reconsidered by the Court or by the Rules Council recommended by us in Chapter III. We do not think it would be possible, even if it were desirable, to lay down rules ab ante, and the point is not, accordingly, one upon which we think it appropriate to make any recommendation.

We desire, however, to draw attention to a matter upon which emphasis was laid by certain witnesses. We think it is desirable that cases which have been put out for hearing in the Inner House should, unless for very exceptional reasons, be heard in regular order and that those not overtaken in the week for which they are first put out, should receive a priority in the following week.

Order of Debate.-Considerable difference of opinion was expressed by the witnesses as to the desirability of altering the practice which has obtained, since 1836, of Junior Counsel on each side opening the case in the Inner House. It was urged that the English practice by which Senior Counsel opens and is followed by Junior Counsel on the same side would conduce to saving of time and consequently of expense. The preponderance of opinion, however, appears to be that the present system by which Counsel on either side address the Court alternately-the opening on each side being made by the Junior Counsel-is preferable, as tending to a more thorough and satisfactory investigation of the case. Another objection stated to the present procedure was that it

not infrequently results in the case being disposed of upon the speech of the Junior Counsel for the appellant. But the Court, if asked to do so, never refuses to hear Senior Counsel in supplement of his Junior, and sometimes calls upon the Senior Counsel of its own accord. We therefore DO NOT RECOMMEND ANY ALTERATION IN THE PRESENT PROCEDURE.

Lodging of "Notes" in the Inner House.-The only object served by the Notes lodged according to the present practice is to notify the Lord President or the Lord Justice Clerk, as the case may be, beforehand, of the circumstances in which a particular Motion is to be made; and to enable the Clerks to look out the papers to which reference is likely to be made. There is sometimes convenience in this; but the practice in relation to the lodging of Notes is not regular, and it is doubtful if much saving of time results in the disposal of the motions to which they refer. On the other hand, the abolition of Notes in the Inner House would result in a certain saving of expense.

Judgments. The invariable practice, which has existed from time immemorial, is that judgments in both the Inner and Outer Houses are delivered in the open Court by all the Judges separately. Objection was taken by numerous witnesses to the time of the Court being occupied by the reading of judgments in cases taken to avizandum. It was represented to us that time which would otherwise be available for the hearing of cases is so occupied, and that the attendance of Counsel and Agents at Advisings is in many cases an unnecessary expense. A considerable body of opinion was in favour of judgments being issued through the office of the Court as is done at present in vacation in the Outer House. Another suggestion (with particular reference to the Inner House) was that the President of the Court should intimate the substance of the judgments and the dissents, if any, and that the opinions should be put in process.

We think that the complaint as to the time occupied in the reading of judgments is exaggerated. In many cases, if not in all, there are obvious practical advantages in parties hearing the judgments, so that any competent motion with regard to expenses, the form of the interlocutor, or otherwise, may be dealt with at the time, while the details of the cases are still fresh in the mind of the Court. We do not think that the opinions should be put into process. With regard to the issue of copies to the parties, we refer to the recommendations made on this subject in Chapter IX.

We therefore recommend:

(1) THAT THE EXISTING FORM OF RECLAIMING NOTE SHOULD BE ABOLISHED;

(2) THAT RECLAIMING NOTES SHOULD BE TAKEN BY A NOTE

WRITTEN UPON THE MOTION SHEET IN THE PROCESS AND SIGNED BY

THE RECLAIMER'S LAW-AGENT, IN THE FORM ABOVE SUGGESTED ;

(3) THAT THE EXISTING STATUTORY PROVISIONS WITH REGARD TO RECLAIMING DAYS SHOULD BE REPEALED ;

(4) THAT TWO PERIODS SHOULD BE FIXED FOR RECLAIMING, VIZ. (1) TWENTY-ONE DAYS IN THE CASE OF INTERLOCUTORS

DISPOSING OF THE WHOLE CAUSE, INCLUDING DECREES BY DEFAULT AND DECREES IN ABSENCE, BUT EXCEPTING INTERLOCUTORS IN BANKRUPTCY AND COMPANY PROCEEDINGS AND PETITIONS; (2) FOURTEEN DAYS IN THE CASE OF INTERLOCUTORS IN BANKRUPTCY AND COMPANY PROCEEDINGS AND PETITIONS AND OF ALL OTHER INTERLOCUTORS NOT DISPOSING OF THE WHOLE CAUSE ;

(5) THAT WHEN LEAVE TO RECLAIM IS REQUIRED IT SHOULD be OBTAINABLE AT ANY TIME WITHIN THE RECLAIMING PERIOD, BUT THE DATE OF THE INTERLOCUTOR GRANTING LEAVE SHOULD NOT AFFECT THE RECLAIMING PERIOD;

(6) THAT IN THE CASE OF EMERGENCY ORDERS GRANTED IN VACATION A RECLAIMING NOTE SHOULD NOT BE COMPETENT WITHOUT THE LEAVE OF THE LORD ORDINARY WHO GRANTS THE ORDER;

(7) THAT ON A Reclaiming Note being taken, OR AN APPEAL BEING PRESENTED, THE CLErk of Court SHOULD WITHIN TWO DAYS SEND WRITTEN NOTICE OF THE RECLAIMING NOTE OR APPEAL TO THE RESPONDENTS OR THEIR AGENTS;

(8) THAT IN THE EVENT OF THE RESPONDENT DESIRING TO TAKE OBJECTION TO THE RECLAIMING NOTE OR APPEAL HE SHOULD

WITHIN A FIXED PERIOD OF HIS RECEIVING INTIMATION THEREOF NOTIFY THE RECLAIMER OR APPELLANT OF THE OBJECTION AND ENROL THE CASE IN THE SINGLE BILLS FOR DISPOSAL THEREOF;

(9) THAT UNLESS OBJECTION IS TAKEN TO THE RECLAIMING NOTE OR APPEAL IT SHOULD NOT BE NECESSARY TO ENROL THE CASE IN THE SINGLE BILLS;

(10) THAT IF THE CASE IS NOT ENROLLED BY THE RESPONDENT IN THE SINGLE BILLS WITHIN A FIXED PERIOD FROM THE DATE OF THE INTIMATION IT SHOULD BE PUT DOWN IN THE APPROPRIATE INNER HOUSE ROLL BY THE CLERKS OF COURT ;

(11) THAT UNLESS THE COURT SHOULD OTHERWISE ORDER IT SHOULD NOT BE NECESSARY FOR A PARTY OBJECTING TO THE COMPETENCY OF A RECLAIMING NOTE OR APPEAL TO PRINT OR LODGE ANY DOCUMENTS FOR THE PURPOSE OF THE DISCUSSION IN THE SINGLE BILLS;

(12) THAT THE LODGING OF NOTES IN THE INNER HOUSE SHOULD BE DISPENSED WITH, AND THAT ALL MOTIONS IN THE INNER HOUSE SHOULD BE DEALT WITH BY ENROLMENT OF THE CASE AND BY ORAL EXPLANATION BY COUNSEL IN THE SINGLE BILLS.

CHAPTER VIII.

TRIAL BY JURY AND OTHER SPECIAL FORMS OF PROCESS AND PROCEDURE.

1. Jury Trial-Historical-Question of Abolition of Jury Trial in Civil Causes-The Removal of Appropriation-Issues in Jury Trials in Civil Causes-General Issues versus Specific Questions of Fact-Special and Common Jurors-Majority Verdicts at any time-Period of Ŝegregation in case of disagreement of Jury-Indisposition of Members of Jury-Procedure for Review of Jury Verdicts.

2. Other Special Forms of Process and Procedure-Exchequer Cases and Proceedings in connection with the Assessment and Recovery of Taxes-Consequential Actions and Proceedings for the Effectuation of a remedy already decerned for-Utilisation of Original ProcessCustody of Children-Actions of Furthcoming, Actions of Arrestment and Sale, and Extracts connected therewith-Possible Applicability of Proposed Changes to Sheriff Courts-Recal of certain Arrestments and Inhibitions by Simple Motion-Suggestion for restricting extent of Inhibitions Separate Petitions for Limitation of Liability under the Merchant Shipping Acts should be replaced by procedure in Original Collision Action-Caution for recal or loosing of Arrestments in Salvage Actions, and the fixing of security under s. 552 of the Merchant Shipping Act, 1894; Remit to Valuer-Form of Conclusions in Salvage Actions should not be for a definite sum-Action of choosing Curators-Simplified form of Extracts-Poor's Roll-Reduction of Time Limit for Appeals to the House of Lords.

1. JURY TRIAL.

BEFORE the establishment of the old Session by James I (1425, c. 65), and of the Daily Council by James IV (1503, c. 58), trial by jury, or by the inquest of an assize, was widely used in civil cases. It is probable, however, that even before these important steps were taken towards the establishment of a Supreme Court of Law in Scotland, the ever extending jurisdiction asserted by the Ecclesiastical Courts had made considerable inroads on a form of trial which found a natural place in the ordered institutions of feudalism. It is, anyhow, certain that, as time went on, the practice decayed and the use of juries for the trial of civil cases virtually ceased. It survived for the purpose of ascertaining and fixing the character of an heir until the Service of Heirs Act, 1847, when the use of a jury for that purpose was discontinued; but such traces of the old procedure as lingered on-and still remain-are rather of a curious than of a practical interest. Thus cognition of the insane by the inquest of an assize is still competent (Court of Session Act, 1868, s. 101), and has been resorted to so recently as 1907. The last reported case is that of David Yoolow (T. Clark, Edinburgh, 1837). Similar procedure, for apportioning to a widow her legal share of her husband's heritable estate, was used so recently as 1891 (Craik v. Penny, 19 R. 339), and for the partition of property among co-heirs in 1843 (Macneight v. Lockhart, 6 D. 128).

Apart from these survivals of the ancient inquest, jury trial in civil causes continued to be in virtual abeyance in Scotland during the sixteenth, seventeenth, and eighteenth centuries. But

in 1815, by the Jury Trials (Scotland) Act of that year (55 Geo. III c. 42), it was reintroduced on the English model; and a separate Jury Court with its own establishment was set up in Edinburgh. The cases tried by it were, in the first instance, such as the Court of Session thought suitable for trial in that way; but, four years later, Parliament appropriated certain cases to it (59 Geo. III c. 35, s. 1), and in 1825 a fresh appropriation was similarly made (6 Geo. IV c. 120, s. 28). At this time proofs in the Court of Session were rarely taken in præsentia, owing largely to the difficulty of securing the punctual attendance of witnesses from a distance; and the practice of taking proofs on commission was all but universal (Ivory's Forms of Process, I, 229). The cases appropriated to jury trial included a wide variety of actions of the most important kinds, and the appropriation made it incompetent to try those actions except by jury trial. The only concession to the difficulty of transporting witnesses to Edinburgh, consisted in a provision allowing the Jury Court to sit in vacation in circuit towns (55 Geo. III c. 42, s. 15). In 1830 the Jury Court was amalgamated with the Court of Session (11 Geo. IV and 1 Wm. IV c. 69).

That the system of jury trial thus established did not prove altogether satisfactory is shown by the course of subsequent legislation, which restricted the classes of appropriated causes and promoted the trial of actions by proof in præsentia before a Lord Ordinary.

Thus, in 1850, the Court of Session was given power to substitute enquiry by proof for trial by jury in all the appropriated cases, except in (1) actions of slander, (2) actions of nuisance, and generally (3) actions of damages (13 and 14 Vic. c. 36, s. 49).

Again, in 1866, Parliament abolished proofs by commission and relaxed the already limited-but still rigid-appropriation of cases to jury trial by making proof before a Lord Ordinary a competent alternative to jury trial in any cause whatsoever, but only if (1) both parties agreed, or (2) special cause were shewn (29 and 30 Vic. c. 112, s. 4).

Finally, by the Court of Session Act, 1868 (31 and 32 Vic. c. 100, s. 27 (4)), the Lord Ordinary was given a general discretion to determine the manner in which enquiry into matters of fact should be made; but the generality of the repeal section (s. 107) left it doubtful how far the limited discretion given to the Court under the Act of 1866 was really extended.

Proposed Abolition of Jury Trial in Civil Causes.—The general tendency of opinion among the witnesses whom we have examined is against the system of jury trial, and goes to support the view expressed in the Report of the Law Commission of 1868 on behalf of a majority of its members, namely, that "trial by jury is not "a satisfactory mode of investigating disputed facts; and that "trial by a judge versed in the rules of evidence, and accustomed to "weigh conflicting testimony, is the best method of arriving at the "truth." In view of the then recent passage of the Acts of 1866 and 1868, and of the dearth of experience regarding their working,

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