date

2 Jan y 1806 Facienda Outline
2 Jan y 1806

Facienda

Outline

The Sheriff's Courts to continue every where /throughout/ Scotland, with their seats of judicature in their present situation, and each of them with its local field of jurisdiction the same as at present: unless upon a particular examination any instances should appear of a degree of inequality the inconveniences of which are so great as to be worth correcting at the expense of the inconveniences inseparable from the change.

Each Court to have cognizance of all sorts of civil ([...?] criminal) causes, and to any value: such particular classes of causes alone excepted, for the detachment of which to appropriate Courts, particular and adequate reasons can be assigned: in which view are to be considered the existing Courts of [...?], Commissariat Courts Court of Exchequer and the Admiralty Courts.  Quote[?] if[?] any[?] ││ in general whatever causes are at present within the competency of the Court of session.

The remuneration (howsoever constituted) to be such as shall be deemed sufficient for the purchase of the Judges' whole time: as in the London Police Offices: excepting such time as may be occasionally necessary for relief from duty, to be obtained by the Judge in manner hereafter maintained.
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  • Title: [2[?] Jan y 1806 A.1.+ Facienda]
    Description: 2[?] Jan y 1806

    A.1.+

    Facienda

    Outline

    To qualify it for the administration of justice on the natural system the judicial establishment is already and still in possession of an essential feature, which the English one had, but for ages has been deprived of: a system of Courts spread over the whole kingdom, each of them with a geographical field of jurisdiction generally of such moderate extent as to suit the pursuit[?] or personal appearance: viz. not so great but that the suitor whose abode is furthest distant from the seat of judicature, may by travelling early and late pay his attendance there without sleeping out of his own house: I speak of the Sheriff's Courts The existing system of Sheriff's Courts, my Lord is the system I have in view.

    Here then the main difficulty - and that which in England would form an objection truly formidable, is already overcome: what may be considered as the building, and more than the shell of the building is already in existence: what remains to be done is no more than fitting up: fitting up in the modern stile /taste/, which is but the primaeval stile /taste/ restored.

    For these 35 years at least my Lord have I been envying Scotland her Sheriff's Courts: looking back with regret not certainly[?] over many other accounts, but most sincerely on this[?] - at those times when in England every shire contained its Sheriff's Court, with the Sheriff and Bishop sitting in it.

    In the 30 th Report of the Committee on Finance A o 1798 (App A.7) I observe a list of Sheriff's Depute 27 in number in some of the instances the senior person named as Sheriff of two Shires: this therefore I presume to be the number of Sheriff's Courts.
  • Title: [2 Jan y 1806 Facienda Outline]
    Description: 2 Jan y 1806

    Facienda

    Outline

    Each course to be conducted to its conclusion accidents excepted, such as death, sickness and removal, by the same Judge, whether principal or deputy /substitute/, before whom it was commenced: as in the Court of Session a cause so long as it remains in the Outer House continues in the possession of the same Lord Ordinary.

    Under the above rule is to be understood to be included this: viz. that no Judge shall within his own local field of jurisdiction committ the taking of the proof or any part of it to any other person (as in the Sheriffs Courts is now the problem): but that the same person who in quality of Judge collects the evidence, shall be the Judge to decide upon it: unless it be, (and then not without special reason, such as that of saving time) where in and for the purpose of the same course two or more facts perfectly unconnected with each other in respect of the evidence, such as the entering into a contract and the breach of it+, require to be proved - even then without special reason such as that of a material survey in point of time: so cognizance of two independent items on an Account &c &[?]. For other examples see the Table of Causes of Complication and Delay.

    In case of any particular connection on the part of a Sheriff with any one of the parties such as might expose his proceedings to the imputation of partiality, obligation on him to declare it (explanation on this head would require /need/ to be given in the tenor of the law) power to him either to name a deputy approved of by all parties, or to remitt the cause to some one of the next adjoining Sheriff's Courts regard being had to the convenience of all parties in respect of distance.
  • Title: [14 Feb y 1808 Lett VI. Omissa]
    Description: 14 Feb y 1808

    Lett VI.

    Omissa & Facienda

    1. No Reporting

    1. Analogous practice

    As to the first point - viz. no reporting - first let us [...?] what authority /custom/ says - under [...?] variety of [...?] names - practice, precedent, custom, usage. Introduced /Under favour of this Introduction/ by him or her Reason may stand some chance, howsoever faint, of the [...?] a hearing in the second place.

    The practice thus marked for introduction is an abuse of which out of the Court of Session an example will surely[?] be to be found.

    1. In the judicial establishment /system/ of Scotland it is without a parallel. Throughout the whole of the judicial establishment of Scotland to [...?] of the inferior judicatories is it allowed /permitted/ to decide a cause or send it off /up/ without decision as they please: not to the Sheriff Deputes Court[?] /not to the Sheriff Deputes[?] Substitutes Courts?/: not to the Borough Courts not to the decree of Guilds Courts, not to the [...?] Courts: not to the Commissioners Courts, natural or provisional: not to the Admiralty or Vice Admiralty Courts.

    Among this, the Sheriff Deputes'[?] Courts claim particular notice. Like the Lord Ordinary's Courts, these are all single-seated judicatories.

    Of the causes /suits/ instituted in the Court of Session, the greater part might have been instituted in the Sheriff's Court. Causes the same not only in specie[?] but in value as those which are instituted in the Court of Session may be and are in great abundance instituted in the Court of the Sheriff Depute. The /To a/ Sheriff Depute is not allowed to decide or not to decide, at /his/ pleasure, why should a Lord Ordinary?