« ΠροηγούμενηΣυνέχεια »
may be remitted to the thirteen judges. This is called a “hearing in presence.'
Perhaps the working of the system in this respect will be best shown by the statement of an actual case from the reports. A case was heard before a Lord Ordinary. It was thence appealed to the first division of the Court of Session—it was thence carried to the House of Lords. It was remitted by that body to the thirteen judges to be “heard in presence.” The whole record was ordered to be opened, so as to enable parties to amend their pleadings. On the new hearing the thirteen judges delivered their opinions seriatim. A doubt then arose whether the former appeal was not destroyed by the opening of the record, and after all this discussion the whole case is treated by the reporter as undisposed of: 1 Macqueen R. 15, 35.
The House of Lords, besides requiring a “hearing in presence,” may order the judges of the court not belonging to the division from which the appeal is taken, to be consulted. They are then called “consulted judges.”
It should be remarked that the same process may be resorted to when the cause originated before the Sheriff's Court, and came into the Court of Session by appeal. A single illustration will suffice. A cause was heard before the sheriff's substitute; it then came before the sheriff on appeal; it was then carried to the Court of Session, where it was heard by the Ordinary; it was thence appealed to the first division (four judges), who, after a hearing, required an argument before the eight appeal judges, and then required an opinion in writing from the thirteen judges; an appeal was thence taken to the House of Lords: 1 Macqueen, bet. 121 and 160.
There is undoubtedly one great advantage in this thoroughness of discussion. It is likely to settle principles, though at enormous expense to the suitor. English courts quite frequently avail themselves of Scotch opinions in cases of general law: 1 Macqueen 160. Suitors are sometimes inflamed with a desire to produce a valid precedent. Thus, in one case, the subject-matter of the action was worth 21. per year. There had been four actions in the Court of Session, and an appeal to the House of Lords. On a second appeal to that body, Lord Brougham asked, “What advantage will be gained by succeeding ?” It was answered, “The satisfaction of settling the law:” 1 Macqueen 191.
Appeals to the House of Lords can, in general, only be taken from final judgments, although there may be an appeal from an interlocutory judgment with leave of the judges of the Session, or when there is a difference of opinion among them: 4 Macqueen 352.
There has been great difference of opinion as to the propriety of permitting English judges in the “House of Lords” to sit as a court of revision over the decisions of Scotch judges. It is well known that the Scotch system of jurisprudence is radically different from the English, being based on the Roman or civil law, instead of the common law.
Some of the ablest Scottish jurists, however, approve of it as infusing a liberal element into their law. Scotland, they say, is “too narrow," and the benefits of the wider views taken by English lawyers, owing to their broad field of investigation, are often conspicuous. These remarks have been applied to the judgment of Lord Brougham in the famous Warrender Case, of which it has been said, that it verifies the remark of Mr. Hume, that in matters of reasoning, the arguments, when just, can never be too refined: 2 Macqueen 664. It has been thought wise to have at least one of the ablest of the Scotch jurists in the House of Lords, to be consulted in delicate cases, and who, being removed from that country, may be supposed to have left behind him any prepossessions derived from an exclusive attention to Scotch jurisprudence.
Lord Colonsay became on this account a member of the House of Lords.
2. Bill Chamber. The duties of this court are to make orders of arrest, attachment, and of preferential judgments or “diligence," so called, &c., &c. One of the Lords Ordinary attends to this business in term time, while during vacation the six lords who do not sit in the Court of Justiciary officiate for a fixed number of days in rotation.
3. The High Court of Justiciary. This court is composed of the Lord President of the Session, who is then called Lord Justice General, the Lord Justice Clerk, and five other judges of the session, specially commissioned by the King. The Lord President is rarely in attendance, so that the inconvenience of having two chief judges on the bench seldom happens. A quorum consists of three judges. It has jurisdiction of all criminal cases, except high treason, which is tried by a special commission of Oyer and Terminer, in the English manner, with a grand jury. Three justiciary judges are in that commission. This court holds sessions in banc and circuits twice a year, at various points in the kingdom. The English House of Lords has awarded these tribunals very high praise. It has said that trials by jury in Scotland, in criminal cases, have been admirably conducted, and there is no country in the world where criminal law is more admirably administered: Ritchie v. Ritchie, 4 Macqueen 165. The Justiciary Court (circuit) also hears appeals in summary cases from the sheriff, &c. There is understood to be no appeal from this court to the House of Lords.
4. Court of Exchequer. This is composed of two of the Lords of Session who are not members of the High Court of Justiciary. They hold office for a year at a time. The jurisdiction of this tribunal has been much reduced in modern times, and chiefly consists of issuing writs of execution (extent) and conducting other judicial matters connected with the revenue. Should a revenue case be pending before a sheriff, the Lord Ordinary in the Exchequer may stay the proceeding by interdict, so as to have the matter heard before a competent tribunal, and no appeal is necessary: 23 Session Cases (2d series) 1015. The Scotch Exchequer statutes do not deprive the Court of Session of its original jurisdiction : 4 Macqueen 89.
5. Court of Teinds, (or Tithes).
This is also composed of members of the Court of Session. Its jurisdiction consists of cases arising under the laws relating to church tithes.
The judges of the Court of Session and of the courts thus formed out of it are appointed by the Crown, and are at present men of great learning and skill in their profession. They hold office during good behavior, although they may retire at the end of fifteen years, receiving an annuity equal to three-fourths of the salary: Glassford 3.
Certain forms are prescribed by law for ascertaining their qualifications to act as judges, for which consult Bell's Scotch Law Dictionary.
In closing this review of the higher Scotch courts, one cannot but be struck with the immense and multifarious business transacted by the judges of the Court of Session. In their proper character as a court they have to do with all the legal matters of the country, whether legal or equitable, maritime or ecclesiastical. The Inner House is in session from November 12th to March 11th, and from May 20th to July 20th. The Ordinaries, from Noveniber 1st to March 20th, and from May 20th to July 20th. More than half of the entire year is thus occupied. In the vacation the various judges are acting in the High Court of Justiciary, or holding its circuits; or in the Bill Chamber, the Court of Exchequer, or the Court of Teinds. How can so much work be accomplished ? In the year 1839, thirteen judgeships were abolished, saving the government over fifty thousand pounds, and the duties of these officers were imposed on the judges of the Court of Session. As an offset to this increase of duty, their salaries were largely augmented. British statesmen have perceived that the true course is to fully occupy the time of the judges, pay them large and honorable salaries, make their tenure permanent, and pay them, if after a lengthened and honorable service they desire to retire, a competent annuity. Call it not a pension, but an honorarium-a tribute from a grateful State for honorable and most valuable service. On such terms, it is the highest honor in the State to fill the post of judge, and the ablest lawyers may faithfully, contentedly, and earnestly devote to it the energy of their lives.
IV. Inferior Local Courts. There is a “Merk” Court held in the city of Edinburgh to hear
and also claims for servants' wages to any amount. There are also Bailie and Sequestration Courts held in that city every Friday.
There is a Dean of Guild Court for settling disputes between merchant and merchant, and merchant and mariner.
Recent statutes provide that certain disputes between manufacturers and their workmen shall be settled in a summary manner before inferior magistrates, to which, if the parties do not consent, a compulsory arbitration is required : Forsyth's Dictionary.
The “Burgh" Courts, which were formerly of considerable importance, are now insignificant, their jurisdiction mainly consisting in the cognisance of trifling criminal causes.
T. W. D.
RECENT AMERICAN DECISIONS.
Superior Court of Cincinnati.
BAILEY v. BERRY ET AL.
Joint trespassers may be sued together, or any of them separately, and the nonjoinder of the others is no defence.
A release to one of several joint trespassers will discharge all; but it must be a technical release, not merely a covenant not to sue, or other instrument amounting to a release by implication merely.
Where plaintiff sued joint trespassers and then made an agreement with a portion of them to withdraw the suit as to them for a certain sum of money, and in pursuance of this agreement made an entry on the record that he was unwilling further to prosecute his action against the parties named, and as to them the action was dismissed, held, that the others were not discharged, but they were entitled to have the jury instructed, in making up their verdict to deduct the amount received already by plaintiff from the amount of damages sustained by him.
This was a case reserved from Special Term upon the pleadings and the evidence contained in the bill of exceptions.
In February 1860, the plaintiff filed his petition against J. Q. A. Foster and fifteen other persons, for an alleged trespass upon his property, in Campbell county, Ky., and in March, in the same year, by leave, filed his amended petition, claiming damages for the injury described in the former pleading.
Five of the defendants, B. Taylor, Hallam, Piner, Root, and Winston, filed demurrers to the petition, which, after argument, were overruled.
On the 16th of June 1862, Charles Air answered with a general denial of the allegations of the petition.
While the action was pending, an entry was made upon the minutes by the plaintiff, that he would not further prosecute his claim against four of the defendants, James Taylor, Jr., Barry Taylor, John Taylor, and James R. Hallam, as to whom the action was dismissed.
Subsequent to this, Berry, Winston, Root, and Air filed answers,