To face page 143. THE SHERIFF DIAGRAM SHOWING THE FLUCTUAT 24. N° of Cases 13500 13000 65432. 187 IN THE SHERIFF 188 5 6 7 8 9 0 1 2 3 4 5 6 7 8 9 0 1 2 3 of this diagram is not peculiar combination reflects the hybrid character of the Courts over which the Principals preside, and its bearing will appear more and more clearly as the problem is examined. It is necessary however, that in the first instance the several functions of the office should be considered singly. 2. THE THREEFOLD FUNCTIONS OF THE OFFICE. (a) Judicial Duties. Duties of the Principal as Appeal Judge in civil causes before the Sheriff Courts.-The figures in Appendix No. I and the corresponding curves in Diagram G show, in a way that calls for no further comment, that during the last fifty years the annual number of appeals to the Principal has been diminishing with approximate steadiness, and that the diminution relatively to the number of actions in the Ordinary Courts of the Sheriff Courts is even more marked. Thus, the number of appeals from the Substitutes to the Principals dropped from 10 per cent. of the Ordinary Actions in 1875 to 3.3 per cent. in 1924. On the other hand, of the total number of the appeals from the Substitutes-whether taken to the Principals or direct to the Court of Session, or to the Court of Session through the Principal-the vast majority is composed of those in which the decisions by the Principal are acquiesced in. In the eight years beginning 1917 and ending 1924, this majority amounted to 92 per cent. of the whole. Further, it must be kept in view that, during the twenty-five years for which statistics are available, there has also been a decrease in the number of cases appealed from the Substitute to the Court of Session direct. Caution must therefore be observed in drawing inferences from the dwindling volume of the Principals' appellate work. But, putting aside the two whole-time offices in the Lothians and Peebles and Lanarkshire (in the latter of which Sheriffdoms the appellate work is often heavy), an annual expenditure of over £12,000 on the salaries of the other thirteen part-time holders of the office wears an aspect of serious disproportion. Add to this that an appeal court consisting of a single judge, reviewing the decision of another single judge, is anomalous and unsatisfactory. This was generally acknowledged in the evidence led before the Law Commission of 1868, and was admitted by many of the witnesses who appeared before us. In these circumstances, it is obvious that, if the only function of the Principal's office were that of acting as judge of appeal in the Sheriff Courts, the retention of the establishment, at least in its present form, would be difficult to defend. The witnesses we examined put forward a number of suggestions (which we examine below) for substituting other forms of appeal in place of the present appeal to the Principal. But there was a large measure of opinion in favour of what is called an appeal "within the Sheriff Courts" themselves. What is really meant by this is an appeal that the local agents can conduct in the same way as they conduct the proceedings before the Substitute. It would be unfair to attribute this opinion-repeatedly expressed by local professional witnesses-to a mere desire to keep such appeal work in their own hands. The real basis on which the opinion rests is twofold: (1) that no alternative form of appeal that can be suggested would be as cheaply available as the present form is, and (2) that the present form provides the safeguard of an appeal in small cases or by litigants of inconsiderable means-which would otherwise be practically lost. We are satisfied of the substantial soundness of both these propositions. The truth is that the local appeal to the Principal is highly appropriate to the poor man's case. It is not an ideal form of appeal, but it is within his reach; and it would be doubtful policy to substitute for it a better form which might be beyond his means. The fact that so large a proportion of the appeals from the Substitutes are finally disposed of by the Principals goes to prove the value of the local appeal in those cases of lesser importance which constitute the bulk of the volume of Sheriff Court litigation. We were surprised to be told that in some Sheriffdoms relatively accessible from Edinburgh it is the practice not to hear appeals locally, but to arrange for the agents to come to Edinburgh to debate them in Chambers. This may not be objectionable from the point of view of the agents concerned, but-if such a practice really exists -it must add to the costs of litigation; and we think it should be an instruction to all Principals that appeals from Courts on the mainland of Scotland must be heard within their own Sheriffdoms, preferably at the Court in which the action was originally brought, unless the parties concur in requesting a hearing elsewhere. As will be seen below, we regard with disfavour any alternative to the present system that might make the right of appeal a virtual monoply of the well-to-do. All limitations of the right of appeal are odious, and can only be justified on the ground that the unavoidable costs of prosecuting the case further are out of all reasonable proportion to the issues at stake, or that the expense of maintaining the establishment of the Appeal Court out of the public purse is out of all proportion to the volume and importance of the cases brought before it. On the other hand, it is inevitable that such expense must be relatively greater, the humbler the class of litigant and the smaller the sums in dispute. It is at this point that the factor of the problem to which we referred above, namely, the complex character of the Principal's functions, which are covered by an inclusive salary, first comes into view. The proposals for a substituted form of appeal fell into three groups-the first involving abolition both of the Principal's office and of the local appeal; the second, abolition of the office of Principal but retention of the local appeal; and the third, retention both of the Principal's office and of the local appeal. Affecting all of them-more or less-there were suggestions for restricting, or enlarging, the limits of the right of appeal, The main feature of the first group was the substitution, in all cases, of an appeal to the Court of Session, direct, for the present appeal to the Principal. In this connection it was proposed that, in addition to the denial (as at present) of any right of appeal from the Sheriff Courts to the Court of Session in cases of the value of £50 or under (7 Edw. VII c. 51, s. 7), the Substitute should be made final on fact within a limit of value of £100 at the least. The effect of these proposals would no doubt be to obviate a certain number of appeals, but we are not satisfied of their public expediency. On the whole, we are not in favour of alteringeven as regards fact only-the limit of value above which appeal from the Sheriff Courts is competent. Next, as regards the constitution of the Appeal Court, it was proposed that a Divisional Court of two Court of Session Judges might be created to hear appeals from the Substitutes, and that the local agents who had conducted the original actions in the Sheriff Courts should be allowed to appear and plead. Other suggestions were that appeals to such a Divisional Court-or to the Inner House of the Court of Session-might take the form of a Stated Case on points of law only, or of a Minute of Debate on both fact and law, and that only one Counsel a side should be allowed where oral pleading was required. The motive of all these proposals was to mitigate the relatively greater cost of an appeal presented to a Court at a distance (more or less) from the Court of the Substitute in which the judgment complained of has been pronounced. But none of them can, in our opinion, be said to offer a satisfactory solution of the problem of providing the means of a cheap appeal in small cases litigated in the local Sheriff Courts. The second group of suggestions contains some proposals that imply far more than the mere provision of an alternative form of local appeal. Some of these to which we have adverted in Chapter II-are so far-reaching as to imply the remoulding of our whole judicial system, the institution of the Sheriff Courts as sole Courts of first instance, the disintegration of the Supreme Court, and the fusion of the pleading and agency branches of the legal profession. We cannot in detail relate these various matters to the subject we are now considering the discussion of them will be found in Chapter II of this Report. We need only say that, in connection with that discussion, we kept in view their relation to the present question. As we have already indicated, these suggestions involve the abolition of the office of the Principal. The device on which they rely for retaining a local appeal is that of using Supreme Court Judges locally. One suggestion was that appeals from the Substitutes should be heard by the Judges of the Supreme Court, when they are on circuit as Commissioners of the High Court of Justiciary. We are satisfied that the effect of this would be to disorganise the work of the Court of Session in Edin burgh, and that additional judges would be required. Further, except in the West, only one Judge goes on circuit as a rule, so that under this plan either the appeal to a single judge would remain or an additional judge would be required on most of the K Circuits. Another suggestion was that these appeals should be dealt with by special Appeal Circuits of the Court of Session, to which (except as regards the appeal to a single judge) the same objections apply. A more drastic proposal-one of those to which we advert elsewhere-is that the Court of Session should be broken up into three local Divisions, the two main divisions fixed in Edinburgh and Glasgow respectively, the third peripatetic. This last proposal was not made with exclusive reference to the problem of the appeal, the method of dealing with the appeal being merely one of its incidents. Proposals of a similar kind were considered and deliberately rejected by the Law Commission of 1868. An objection common to all of them is that the Justiciary Circuits, the Special Appeal Circuits, and the Circuits of the ambulatory Division could be peripatetic only over a limited area. From the South, the Dumfries case would have to go to Edinburgh or Glasgow; from the North, the Wick case would have to go to Aberdeen or Inverness. Under such a system, the appeal would be anything but a local one in the present sense; and it is questionable whether, outside the favoured seats of the Court, it would be regarded as more satisfactory than an appeal to the Court of Session in Edinburgh. Nor do these schemes promise much (if any) economy to the litigant. The local agent who had conducted the case before the Substitute would-unless he happened to carry on his business in one of those favoured seats either have to absent himself from his business for a day, or it might be for a number of days, in order to attend the Appeal Court, or he would have to incur the cost of instructing another agent carrying on business in the favoured seat to appear for him. Whether at the end of the day the client would be much better off pecuniarily than he is now when his case goes to the Court of Session, or as well off as he is when it goes to the Principal, is in these circumstances a speculative proposition. It is difficult to estimate the probable cost of these schemes to the Exchequer; but the cost of each and all of them would be considerable. Additional Supreme Court Judges would be required, travelling expenses would have to be allowed to Judges who were on circuit often and long (neither the Judges of the Court of Session nor the Principals are allowed any Circuit or travelling expenses at present), and there would inevitably be a tendency to create a special staff attached to the travelling Court. Our opinion is that all the suggestions in this group would, in the long run, be at least as costly to the Exchequer as the present system; that it is doubtful whether upon the whole they would be as cheap to the litigant; and that at best they offer an imperfect substitute, particularly as regards the smaller cases, for the local appeal. On the other hand, they would no doubt yield more authoritative decisions than those of the Principals, and might give those decisions more expeditiously than the Court of Session at present can. The suggestions in the third group retain both the office of the Principal and the local Appeal. The latter is secured in a new form by requiring the Principals to sit in Benches of two |