« PreviousContinue »
to be found anywhere as between Edinburgh and Dunblane. There is, on the average, a Sheriff Court for nearly every eight miles of railway. Starting from Edinburgh with its two Sheriff-Substitutes, the traveller soon reaches Lin. lithgow where he finds a Sheriff Court; eight miles further on he passes Falkirk, where there is a third ; ten miles bring him to Stirling, where there is a fourth; and at the end of five miles further, or forty-one miles from Edinburgh, he arrives at Dunblane, where there is a fifth. While, if he had gone eight miles east of Stirling, he would have found a sixth Sheriff Court at Alloa. North of Dunblane and south of Edinburgh the average distance between each member of the immediately adjacent groups is about twenty-eight miles. And in regard to one of these groups, as it issues on the average rather less than one decree in foro per week in the Ordinary Court, it may be safely predicted that, making all allowance for other judicial work, none of the able triumvirate of Judges who are attached to the group of Courts in question, will die of overwork. The Scotch Law Courts Commission suggested in 1870 that the number of head Sheriff Courts in Scotland might be reduced to thirty, and the SheriffSubstitutes to thirty-seven, provided seven stipendiary magistrates were appointed for certain outlying districts. It is, perhaps, questionable whether the number could not advantageously be made smaller still.
According to a Parliamentary return obtained for the year 1863, there were then fifty-five Sheriff-Substitutes, receiving among them £34,635, or, on the average, £630 each per annum. There are now fifty receiving amongst them £36,685, or, on the average, £734 each. By the Sheriff Court Act of 1853 the minimum salary of a Sheriff-Substitute is fixed at £500 and the maximum at 1000. But by a special Act passed in 1864, the Treasury was authorised to raise the salaries of
two of the Sheriff-Substitutes in Edinburgh and two in Glasgow to an amount not exceeding £1,400; and under the provisions of this statute one Sheriff-Substitute in Edinburgh receives £1,300 and another £1,100, and one in Glasgow £1,400 and another £1,200. Till 1877 the Sheriff-Substitutes in the larger towns received a considerable amount of remuneration in the shape of fees for work done under the Bankruptcy Statutes.* But by a statute passed in 1877 they were deprived of this source of emolument.
A Sheriff-Substitute has no political vote in the county over which he has jurisdiction, except at a University election; and he is bound to reside within his county during forty-six weeks of each year. He is debarred from practising in the Supreme Court, or undertaking any official employment other than the duties attached to his office.
Sheriff-Clerk.—The Sheriff-Clerk is appointed by the Crown, holds his office ad vitam aut culpam, and is now in nearly every case paid by salary. Formerly his remuneration was entirely from fees. From the Parliamentary return for 1863, it appears that the thirty-three Sheriff-Clerks of Scotland received in that year amongst them from salaries and fees, £27,545, or, on the average, £835 each. But out of this they would have to pay office expenses.
The Sheriff-Clerk is custodian of the writs of the Court, of the deeds recorded in its books, and acts personally, or by depute, as clerk of all the civil and criminal Courts. As the Sheriff is now Commissary, that is, head of the Courts formerly held by the Bishops in regard to matters of probate, and of a consistorial character (except so far as these have been appropriated to or by the Supreme Court), the Sheriff-Clerk has become, on the occurrence of a vacancy in any Commissary clerkship, clerk of that Court also. It
* In 1863 the amount so earned by each Sherift.Substitute varied from o to 57 guineas,—the total amount received being £569 3s. 3d. In later years it was much higher.
will be thus seen that the office of Sheriff-Clerk is one of importance and responsibility, and in the more extensive Sheriff Courts where the business has to be carried through with extreme rapidity there is requisite on the part of him and of his deputes an intimate acquaintance with the rules of process and a good knowledge of the general principles of law. This is the more needful as under the present system the liability of the Sheriff-Clerk is placed on a footing at once anomalous and unfair. The salary of the office ranges from £78 to £1000; and most of the SheriffClerks carry on other business and hold other appointments.
Procurator Fiscal.--The Procurator Fiscal is the representative of the Lord Advocate as Crown Prosecutor in the Sheriff Court. Formerly he was—as already stated, and as indicated by the latter part of his name—the hand of the Sheriff in collecting the Crown revenues.
Till 1877, he was appointed by the Sheriff and held office at his pleasure. But as experience showed that occasions arose which compromised the independence of the Fiscal, and placed him in an embarrassing position through the receipt of directions of one kind from his legitimate superior, the Lord Advocate, and directions of an opposite kind from his patron, the Sheriff, it was deemed expedient to put his tenure of office on a better and more permanent footing. It was accordingly enacted in 1877, that he should in future be appointed by the Sheriff with the approval of a Principal Secretary of State, and should not be removed, except for inability or misbehaviour, and by such Secretary, on the report of the Lord President of the Court of Session and the Lord Justice Clerk. When it is borne in mind that the duties which the Fiscal discharges are executed under the direction, where necessary, of the Lord Advocate and the Advocate's Depute appointed by him, and that in the public interest it is desirable that there should be no connection
whatever between the Judge and the Prosecutor, it may be surmised that ere long the remaining shred of anomaly in regard to the appointment of Procurator Fiscal will be removed. A more difficult matter, though one that ought also to be faced, is the fact that as almost all the Fiscals carry on other businesses as procurators, conveyancers, factors or bankers, their duties to the public and to indi. viduals may and occasionally do come into conflict. The question is just one of money—like that of the SheriffSubstitute of last century. To get good men at bad salaries, the deficit in emolument is allowed to be drawn from other and possibly prejudicial sources.* The net salaries now range from £50 to £1,100.
Auditor.—The Auditor of Court is appointed by the Sheriff, taxes the accounts of the successful litigants, and is paid by fees under a tariff fixed by the Court of Session.
Procurators.-Causes are conducted in the Sheriff Court by Procurators, or, as they are often termed, Agents or Solicitors, though in cases of importance the litigants are occasionally represented by Counsel from Edinburgh. Members of the Supreme Bar do not, as in England, reside and practise in provincial towns. In Aberdeen the Procurators are in virtue of an old charter termed Advocates. Till 1873, the Procurators of each Sheriff Court were admitted by the Sheriff on passing an examination satisfactory to him, or to examiners appointed by him, and after acquiring certain office experience. They were not entitled to practice in any other county without permission, but in 1873 a statute was passed under which all the Procurators of the country are fused into one body, the imprimatur of procuratorial fitness is received from an examining board appointed by seven Judges of the Court of Session, and all Procurators are entitled to practice in
* According to the return for 1863, the fifty Fiscals received for salaries and office expenses, £27,627, or, on the average, £552 each per annum.
any Sheriff Courts in Scotland, on whose rolls they think fit to get their names inscribed.
Sheriff Officers.—The writs of the Courts are served and their decrees enforced by Sheriff Officers who are appointed by the Sheriffs of the various counties, and paid by small fees fixed in part by the Legislature and in part by the Court of Session.
Bar Officer.—The cases are called in Court by a Bar Officer, who receives on the average a few pence for each
Jurisdiction.- The jurisdiction of the Sheriff Court is of a very extensive and important character. Indeed in his capacity of Judge Ordinary of the bounds, a Sheriff is thought to be able to give redress for almost any wrong that can occur, or to ward off any that can be threatened. His jurisdiction extends over all the community resident within the county or counties to which his commission applies; over all companies which have a head office within that jurisdiction; over all persons who have a place of business within it, no matter in what part of Scotland they reside, if they are cited at it or personally served ; and, in Admiralty matters, over all foreigners, where the action is one which would have been competent against a Scotchman and the foreigner's ship has been arrested. There are also one are two other sources of jurisdiction, as, for example, consent of parties, personal service of the writ following upon contract, and the like.
It is scarcely desirable in an article like the present to seek to detail with minute accuracy the various sources from which the business brought before a Sheriff flows, and there. fore I shall content myself with enumerating the more important or interesting kinds. As regards heritable rights, i.e., questions involving the title to real property, he exercises jurisdiction to the extent of £1000 ; but where the question is only one of possession there is no limit to the