Sheriff Court business, to the Court of Session, because in the latter Court business tends to increase in times of prosperity.

Conclusions. It is evident that while the general tendency of the litigious business of the country is to vary inversely with the general prosperity, the variations in general prosperity do not affect the Court of Session and the Sheriff Courts to the same extent. In the Court of Session a tendency for litigious business to vary directly with the level of general prosperity strugglessuccessfully on the whole-for the upper hand. In the Sheriff Courts, on the other hand, a tendency to vary inversely with it is sufficiently pronounced to be designated as the general rule. The explanation is, we think, to be found in the fact that, while the great majority of actions in the Sheriff Courts are concerned with relatively small claims and disputes, cases in which the stakes are high, or the principles involved are important, naturally gravitate to the Court of Session. A period of bad trade and unemployment tells more immediately and more severely on the small trader and the less well-to-do than on the big concerns and on persons who have a substantial balance at the bank. The latter are better able to pay and to perform in adverse circumstances than the former, and are also in a better position to compromise claims which it might be embarrassing to meet in full. In their case, the storm is likely to be successfully weathered without recourse to the Law Courts. But it is otherwise with those less fortunately placed. Accordingly, in bad times, it is the class of smaller litigations (naturally conducted in the Sheriff Courts) which chiefly shews an increase. In good times, on the other hand, when confidence is. strong and enterprise is active, the volume of commercial business from which litigation largely arises is increased. In the prevailing mood of optimism speculation becomes rife, contracts are valuable, and some of them may be made hurriedly and not too closely scrutinised. In such circumstances it is the class of heavier litigations (normally appropriate to the Supreme Court) which tends to grow. In good times, moreover, there is probably a greater willingness on the part of the public generally to bring their cases -which, in such times, tend to involve larger stakes-to the Court of Session; while, in times of depression, they may be content with the less expensive verdict of the Sheriff Courts-the more readily as the amounts then involved are likely to be smaller.

(ii) The distribution of business between the Court of Session and the Sheriff Courts, particularly as affected by the passing of the Sheriff Courts Act, 1907.-While the foregoing may throw some light on the fluctuations in the total volume of business, it must be kept in view that a true comparison from year to year should also take account of the effect of legislation upon the business of the Courts. In full detail this can scarcely be done, especially as the effect of new legislation may be either to increase litigation or to diminish it, or even to do both in different ways. The Workmen's Compensation Acts, for instance, give rise annually to

hundreds of arbitrations in which the Sheriff Substitutes act as arbitrators: but they must also, by their agreement provisions, have abolished many litigations of a kind which, prior to their enactment, were dealt with under the law (common or statutory) of employers' liability. In our statistics, the addition of Workmen's Compensation Arbitrations to Sheriff Court work is not shown, because these arbitrations are not "Ordinary" Actions, whereas the decrease of employers' liability cases must be expressed in the statistics, because they are "Ordinary" Actions. On the other hand, appeals from the learned arbitrators' awards under the Workmen's Compensation Acts appear in the statistics of the Inner House of the Court of Session although not separately classified.

The effect of the Sheriff Courts Act of 1907 is also against a strict comparison of business before that year with business after it. The Act extended the jurisdiction of the Sheriff Courts as regards Separation and Aliment, Declarators, Heritable Right and Title, and Jury Trial in certain cases. It also abolished the Debts Recovery Court in a way that distributed the business previously done in that Court between the Sheriff's Ordinary and Small Debt Courts. The explanation given above of the meaning of the Sheriff's "Ordinary Court" (both in the Judicial Statistics and in this Report) will be kept in mind. Debts Recovery actions. for more than £20 became summary" actions in the "Ordinary Court" after the passage of the Sheriff Courts Act, 1907; those for £20 or less became Small Debt Actions. It will be seen from Appendix No. III that, partly as a direct consequence of the passing of this Act, final judgments in actions for Personal Debt in the Sheriff's Ordinary Court increased by over 1200 in 1908, actions relating to Heritable Estate by 100, and actions relating to Separation and Aliment by 230-an increase under these heads of 1530 final judgments, which must represent an increase of many more actions, say 2000 in all, at least 1500 of which may fairly be ascribed to transfers from the Debts Recovery to the Ordinary Court. Both in Diagram A and in Diagram B, the dotted line from 1907 onwards shews what we estimate, on this basis, would have been the movement of the main line but for the transfer of Debts Recovery Cases to the Ordinary Court. For the purpose of comparing like things, the dotted line provides a truer comparison with the line of the earlier period than the corresponding main line.

It is questionable how far the other items (i.e. other than Personal Debt) of this increased business in the Sheriff Courts in 1908 were secured at the expense of the Court of Session.

Appendix No. IV has been prepared to elucidate this point. It will be seen that it deals with the annual average number of · actions in the Court of Session and in the Sheriff Courts respectively in two successive periods of five years each, the first of which immediately preceded the passing of the Sheriff Courts Act, 1907, and the second of which immediately succeeded that event. The object is to bring these two periods into comparison. It may be

well to remind the reader that-in relating the figures in this Appendix to the more extended series of figures which has to be passed in review in order to trace (1) the general fluctuations of judicial business in Scotland, and (2) the comparative movements of such business in the Court of Session and in the Sheriff Courts respectively-the ten years covered by this Appendix form only an incident (as it were) in the general course of events. The actual figures on which the averages of the Appendix are based are included in the figures dealt with above in considering the general causes of fluctuations, and also in those dealt with below in considering the long-period tendencies of litigation in Scotland.

The actions which were previously appropriated to the Court of Session, and which the Sheriff Courts Act, 1907, made competent in the Sheriff Courts also, appear under only two heads of the table of averages contained in Appendix No. IV, viz.: "Heritable Estate" and "Marriage, Divorce, etc." (the latter head comprising, in the Sheriff Courts, cases of Separation and Aliment, Adherence and Aliment, and Interim Aliment). Under the former head the average annual number of Final Judgments in the Sheriff Courts was greater in the five years 1908-12 than in the five years 1903-7 by 141; but the corresponding decrease in the Court of Session was only 48. Under the latter head, the average annual number of Final Judgments in the Sheriff Courts was greater in the five years 1908-12 than in the five years 1903-7 by 206 (or almost 625 per cent.); but there was no corresponding decrease in the Court of Session. On the contrary there was a slight increase of 8 final judgments. The "Marriage, etc." column of Appendix No. III gives the annual figures of this class of case for a series of years, and leads irresistibly to the conclusion that the Sheriff Court increase was due not to business diverted from the Court of Session, but to new business made possible, for the first time, by the extended Jurisdiction of the Sheriff Courts.

At first glance the average annual number of actions initiated in the Court of Session and in the Sheriff Courts respectively (see Appendix No. IV at foot) suggests a certain transfer of business from the Court of Session to the Sheriff Courts consequent on the passage of the Sheriff Courts Act, 1907, because the average annual number of actions initiated in the former Court was less in the five years 1908-12 than in the five years 1903-7 by 426; whereas the average annual number of actions initiated in the Sheriff Courts showed an apparent increase of 1768. But, as we have already explained, at least 1500 of this increase must be ascribed to transfers from the Debts Recovery Court, and more than 200 to actions for Separation and Aliment, Final Judgments in which we have discussed above. When account is taken of these two factors, it appears that the volume of new business in the Sheriff Courts remained otherwise unaffected by the Sheriff Courts Act of 1907 and that, whatever the causes of the decrease of new business in the Court of Session, that decrease cannot (apart possibly from the small decrease in actions affecting Heritable Estate) reasonably be ascribed to the operation of that Act.

We are therefore of opinion that the effect of the extension of the jurisdiction of the Sheriff Court upon the business of the Court of Session as a whole was negligible during the five years 1908-12, whatever the effect may have been subsequently.

This view is powerfully reinforced by the fact that the Act of 1907 did not prevent a decrease, during the period from the date of the Act until the war, in the amount of business in the Sheriff Courts materially greater than that which was contemporaneously taking place in the Court of Session. This is, so far, in accord with the operation of the general causes of fluctuation (already examined); because unemployment was decreasing during the years in question. The Act came into force on 1st January 1908, and in that year (the first year of the operation of the Act) the total number of actions in the Ordinary Courts of the Sheriff Courts was 11,307; but in 1914 this figure had fallen to 7693-a decrease of 32 per cent. The corresponding figures for the Court of Session (Inner and Outer Houses and Lord Ordinary on the Bills) were 3736 and 3297-a decrease of only 12 per cent. If the comparison is made as between 1907 (the year before the Act came into operation) and 1914, it is necessary for the reasons explained above to deduct at least 1500 from the Sheriff Court figures for the latter year. The figures for the Sheriff Courts thus become 8481 in 1907 and (7693-1500) 6193 in 1914-a decrease of 27 per cent. The corresponding figures for the Court of Session are 4159 and 3297 -a decrease of 21 per cent.

Conclusions. It is obvious that a marked decrease in the amount of business was taking place both in the Court of Session and in the Sheriff Courts during the years 1907-14. We shall recur to this in considering the long-period tendencies of fluctuation. But in the meantime it is sufficient to observe that the decrease was even more marked in the Sheriff Courts than in the Court of Session. There does not appear to be any reason to believe that either the Act of 1907, or any other cause, has operated in any material degree to divert work from the Court of Session to the Sheriff Courts. As has already been pointed out, the heavier and less numerous classes of litigation naturally go to the Court of Session, the lighter and more numerous classes to the Sheriff Courts. The line of division is not a clearly defined one, but it is real and substantial; and a process of natural selection practically excludes anything in the nature of competition for business between the Supreme and Lower Courts, notwithstanding the extension in the jurisdiction of the Sheriff Courts which took place in 1907.

(iii) Long-period tendency of litigation towards increase or decrease. It is at this stage of our investigation that the disturbances which mark the years of the war and those succeeding it begin to be embarrassing. In the first instance, therefore, it is expedient to direct attention to the pre-war period-from 1877 (the first year for which the Judicial Statistics provide reliable complete figures) to 1914 inclusive.

(a) From 1877 to 1914.-Whatever may be the fluctuations from year to year, it might reasonably be supposed that, over a period of nearly 40 years, the total volume of litigation would tend to increase with the normal growth of population and the expansion of trade and industry. Diagram A, however, shows that an opposite tendency manifested itself in Scotland. As we have already indicated, the dotted line (on Diagram A) from 1907 shows the true continuation of the line of Scottish litigation (in the Court of Session and in the Sheriff Courts combined) running from the commencement of the modern series of Judicial Statistics -if, in order to compare like things, we allow for the transfer by the Sheriff Courts Act of 1907 of Debts Recovery cases to the Ordinary Courts.

Beginning with the line of Composite Law Business shown in Diagram A (that is, of the varying number of actions in the Court of Session and in the Ordinary Courts of the Sheriff Courts combined) the drop between 1877 and 1914 (using the dotted line) is approximately from 14,100 cases to 9500, or 33 per cent. From 1879 (the highest peak year in Diagram A) it is 40 per cent.

In the Sheriff Courts alone (see Diagram B--again using the dotted line) the corresponding drops are from 9700 to 6200, or 36 per cent., and from 11,200 to 6200-almost 45 per cent.

In the Outer House of the Court of Session (Diagram C) the drop from 1877 to 1914 is from 3043 to 2181, or only 28 per cent., and from 1879 to 1914 practically the same.

In the Inner House (Diagram D) there is a rise of over 4 per cent. between 1877 and 1914, but a drop of over 16 per cent. (from 1153 to 961) between 1879 and 1914.

Conclusions.-As these Diagrams are drawn in different scales for the purpose dealt with in Section (i) of this Chapter, they are not graphically comparable as regards the amounts of their respective movements; but their tendencies are clear, and they -along with Diagram E, which supplements them for this purpose-show that over the forty years between 1877 and 1914the main tendency in the Sheriff Courts is a steadily declining

one;

the Outer House tendency is more irregular (it declines for 9 years from 1878 to 1887, rises during the next 14 years to 1901, and then declines steadily until the period of the war); the Inner House business is still more irregular in its tendency, which, however, is on the whole upward from 1880 to 1902. Long-period decline does not set in until 1903, and at no time, if we exclude the war period, does it drop appreciably below the average of the whole pre-war period of 40 years.

In short, from 1877 to 1901-3, while Sheriff Court business steadily tended to fall away, no such tendency manifested itself in the Court of Session. But, between 1901-3 and 1914, there occurred an all-round decline.

(b) From 1914 to 1924.-In the next place, directing attention to the war and post-war period (1914-24), it will be observed that