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free agency; it must not be the influence of affection or attachment, nor the mere desire of gratifying the wishes of another; and there must be satisfactory proof that the will was obtained by such coercion: 11.

Neither age, nor sickness, nor extreme distress, por debility of body, will disqualify a person for making a will, if sufficient intelligence remain : Id.

A testamentary instrument may be established against the evidence of one of three subscribing witnesses : Id.

LIST OF NEW LAW BOOKS.

ABBOTT.-The Enactments relative to the Federal Courts. A Collection of Statutes and Rules of Court of practical utility. From advance sheets of Abbott's Treatise on the Jurisdiction and Practice of the United States Courts. By B. V. ABBOTT and Austin ABBOTT. 8vo. pp. 166. New York: Diossy & Co. 1869.

BARBOUR.— Reports of Cases in the Supreme Court of New York. By 0. L. BARBOUR. Vol. 51. Albany: W. C. Little.

Comic BLACKSTONE.—By G. A. A'Becket. With illustrations by G. Cruikshank. Chicago: Gallaghan & Cockcroft. Philadelphia : Claxton, Remsen & Haffelfinger. 1869. Cl. $2.50.

Illinois.— Reports of Cases in the Supreme Court of Illinois. By N. L. FREEMAN. Vol. 41. Chicago: E. B. Myers. Shp. $6.50.

MARYLAND.— The Constitution adopted by the Convention of 1867. With notes and references to Acts of Assembly and Decisions, etc. By E. 0. HINKLEY. Baltimore: J. Murphy. Shp. $2.

MASSACHUSETTS.-Reports of Cases in the Supreme Judicial Court. By CHARLES Allen. Vol. 14. Boston: H. O. Houghton & Co. 1869.

New HAMPSHIRE.—Reports of Cases in the Supreme Court. By A. HadLEY. Vol. 47. Concord : B. W. Sanborn & Co. Shp. $5.

PennsyLVANIA.—Reports of Cases in the Supreme Court. By P. FRAZER Smith. Vol. being Vol. 56 of Pennsylvania State Reports. Philadel. phia : Kay & Bro. Shp. $4.50.

Tracy.-- Address to the Graduating Class of the Law School of Columbia College. By Charles Tracy. Pamph. pp. 22. New York: Published by the Trustees. 1868.

United States.—Opinions of the Attorneys-General of the United States. Edited by J. HUBLEY Ashton. Vol. 11. Washington: Morrisons. 1869.

WINES.-Commentaries on the Laws of the Ancient Hebrews, with an Introductory Essay on Civil Society and Government. By E. C. WINES, D. D. 1 vol. 8vo. Philadelphia : Pres. Board of Pub. $2.50.

THE

AMERICAN LAW REGISTER.

MAY, 1869.

THE JUDICIAL SYSTEM OF SCOTLAND.

As to judicial jurisdiction, Scotland and England, although politically under the same crown, and under the supreme sway of one united legislature, are to be considered as independent foreign countries, unconnected with each other. Cases of a judicial nature are to be treated as if they had occurred in the reign of Queen Elizabeth. A decree of the English Court of Chancery is not entitled to more respect in Scotland than a decree (interlocutor) of the Scottish Court of Session in England : 4 Macqueen R. 49, 50. English judges are not to be consulted on Scotch appeals: 3 Id. 691.

It should, however, be added that while the English Court of Chancery has regularly no jurisdiction over domiciled Scotchmen, this rule may be changed by Parliament, as it has been in the case of contributories under the act relating to joint stock companies : Moyes v. Whinney, 3 Session Cases (3d series) 183.

The general organization of the Scotch Courts at the present time is as follows: 1. Justices of the Peace. 2. Sheriffs and Sheriffs' Substitute. 3. The Court of Session. 4. The Bill Chamber. 5. The High Court of Justiciary. 6. The Court of Exchequer. 7. The Court of Teinds. 8. Local Courts. The fourth, fifth, sixth, and seventh courts are composed of members of the Court of Session. VOL. XVII.-17

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I. Justices of the Peace. These are appointed by commission under the Great Seal. Their number is not limited. No pecuniary or other property qualification is required. They continue in office until six months after the death of the sovereign who appoints them.

In criminal matters the precise limit of their powers is doubtful, except where they are specially conferred by statute. Any two or more of their number hold, in districts in their respective counties, a court of "petty sessions,” in which the majority of criminal cases coming before justices is tried. The whole body of justices in the county hold the Quarter Sessions, hearing appeals from the petty sessions. Appeals lie in certain cases from the Quarter Sessions to the Court of Session, hereafter described. See Avondale v. Whitelaw, 3 Session Cases (3d series) 263.

The justices also have civil jurisdiction in "small debt" causes, conferred upon them by statute. The amount in question must not exceed 51. They are required to hear the parties viva voce, and may examine them with or without oath, and may also swear witnesses. The pleadings must be oral. Any debt found due may be ordered to be paid by instalments. No appeal is allowed except upon the ground of malice or oppression, though a rehearing may in certain cases be had before the justices themselves. The jurisdiction thus conferred does not extend to cases of title to land.

II. Court of the Sheriff or Sheriff's Substitute. The sheriff is the principal local judge of the county. He possesses both civil and criminal jurisdiction. In civil matters it extends to all actions upon contract and for damages, but not for heritable property. Admiralty jurisdiction is also conferred upon him within his sheriffdom, and even extends to foreigners there served with process: 5 Court of Session Cases (3d series) 497. Each sheriff has one or more substitutes by whom the principal part of the judicial business is performed. In fact, the judicial office of the sheriff is principally nominal. The substitutes are appointed by the sheriff, but are not removable except with the consent of the judges of the Court of Session. On this system cases are heard in the first instance by the sheriff substitute, whereupon the unsuccessful party may, by a simple proceeding, appeal

to the sheriff, and from him in proper cases to the Court of Session. The theory of judicial organization which permits a judge to appoint a deputy, is justly objected to by text writers, and is a remnant of an ancient usage which permitted all judges to delegate their authority: Glassford on Scotch Courts, p. 35.

By recent statutes, power has been conferred on the sheriff to exercise a summary jurisdiction in cases of “small debts” not exceeding 121. The rules adopted in this class of cases are not materially different from those which prevail in Justices' Courts. No written pleadings are allowed without special leave of the court. Circuits to try these causes are held in different parts of the county, in some instances as often as once a month. Appeals lie to the Court of Justiciary (a criminal court to be hereafter described), only on grounds of corruption, malice, oppression, deviation from statutory forms indicating wilfulness, incompetency and defect of jurisdiction. This court must be a popular one, as the amount to which its jurisdiction applies has recently been extended from 81. to 121. Parties may by mutual consent provide that causes of a larger amount than 121. may be heard in a summary way.

In other cases, the right of appeal is limited so that the sheriff's decision is final, unless the amount exceeds 25l. : 5 Court of Session Cases (3d series) 1003. Where the right of appeal exists there may be a stipulation that one appeal shall be final. Should an appeal in a civil case be improperly taken to the Court of Justiciary, it may be certified by that court to the Court of Session where it properly belongs : 24 Cases in the Court of Session (2d series) 437.

The sheriff has also criminal jurisdiction in all cases which do not infer death or banishment from Scotland. This extensive jurisdiction can, by recent statutes, only be exercised with a jury. He also acts as a ministerial officer in analogy to his duties under our own law.

The sheriff and his deputy or substitute, must be an advocate of three years' standing. The substitute must be certified by the Lord President of the Court of Session or the Lord Justice Clerk, to be duly qualified to hold the office.

The office of sheriff is held during good behavior, though there is a provision for a pension after long service. He may be removed for malfeasance in office by a proceeding on the part of

1

the Attorney-General or of four freeholders, before the Court of Session.

III. Courts of which the Judges of the Court of Session are

members.

1. Court of Session. All cases of a civil nature may be heard by the Court of Session, whether they be common law, equity, admiralty or probate, with the exception of cases specially affected by Act of Parliament, and those involving a pecuniary amount not exceeding 251., which must be brought in an inferior court.

This court has a double function, being both a tribunal of original jurisdiction and a court of review. Its organization has varied much from time to time. It originally consisted of fifteen members. As a court of original jurisdiction it consisted of a single judge, whose duties were ascertained by a complicated system of rotation. As an appellate court, it was composed of the fifteen judges. This was an absurd arrangement, and the court was an object of ridicule, even by grave judicial functionaries. Lord Eldon gives the following anecdote from the bench: He said “We shall get the House of Lords into the same difficulty as Sir James Boswell once placed me.

I had the honor of arguing a case before the bar of the House of Lords with him, and, being senior in the profession, I stated with all humility the extreme pressure under which I labored, for I was to argue against the unanimous opinion of the fifteen judges. He came to the bar (with what degree of modesty is not for me to determine), but he blamed me to the House for prejudicing the cause of my client, stating that when the judges differed they thought very little about the matter, and when they agreed they thought nothing at all about it:" 4 Wilson and Shaw 211. Mr. Black, editor of the Morning Chronicle, said the court of fifteen was a regular bear garden, although some of the judges, more pacific than the others, slept on the bench during the argument, particularly Lord A., who had to be roused to give his vote.

The Lord President in telling the division would ask, “My Lord A., how does your

Lord

1 There are, however, “ Commissary Courts” in each county in Scotland which grant formal probate. If a person dies domiciled abroad, the Commissary Court of Edinburgh has jurisdiction over assets in Scotland: 21 & 22 Vict. c. 56.

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