Oldalképek
PDF
ePub

which falls rather within the department of the valuator than of the lawyer; but which no other book deals with.

The Fifth Part has to do with the formation and maintenance of the line, divided into chapters on the powers of construction, deviation, &c., interference with roads and accommodation works.

The Sixth Part treats of the company as carriers, and forms the most convenient manual for the Scotch lawyer of the law of carriers as applicable to railway companies. It includes chapters on the liability for loss of goods and injuries to them during carriage, for injury to passengers, undue preferences, the law as to fares and tickets, and other matters incident to the carriage of passengers, and one on passengers' luggage.

The Seventh Part is supplementary, and relates to the rights of creditors of railway companies, the liability of railway companies for public burdens, and jurisdiction and procedure.

The table of contents, index of cases, and index of matter, are all satisfactory, and the printer and publisher have done their parts in such a manner as to make the book as convenient and pleasant to read and refer to as any law book can be.

The Month.

English and Scotch Judicial Salaries.-The English Stipendiary Magistrates are making a claim to have their salaries increased. The Metropolitan Stipendiary Magistrates receive £1200 a year, and Mr. Norton has written a letter to the Times maintaining that they ought to receive at least as much as a county court judge, which is from £1500 to £1800 a-year. In commenting on this letter, the Law Times approves of the suggestion that the magistrates should have £1500 a-year, but takes the opportunity of arguing that the County Court Judges should have £2000 a-year. It is probably true that if the Judges of the Supreme Courts in England have £5000 a-year, the inferior judges have a reasonable claim to two-fifths of that sum, but it is really scandalous that a discussion like this should proceed, while nothing whatever is being done for the Scotch Judges. Nobody can give any reasan why English and Irish legal officials should receive so much more than Scotch. Why should a judge of the English Supreme Court receive £5000 a-year and a Scotch Judge only £3000, and why in the case of the County Court Judges should the disparity be still greater, a Scotch County Court Judge seldom receiving more than a third or a half of what an English County Court Judge receives? The Court of Session is perhaps too chary of its dignity, when it leaves this matter as it is at present. The Law Courts Commission has done little more than

[ocr errors]

point out the injustice which exists, and leave it to speak for itself, If the jurisdiction and influence of the Supreme Court of Scotland is to be maintained, the position which its members are to hold, and their material interests, certainly demand attention, although, as we have pointed out on another page, there are claims which take precedence of theirs, and arguments which may be urged on both sides of the question.

The claim which the Sheriff-Substitutes in Scotland have to better remuneration, is one, however, to which no reasonable objections can be stated. It is undoubtedly the strongest claim of the kind, but it has hitherto been treated almost with contempt by the Government. As far back as 1862, the Sheriff-Substitutes presented a memorial to Government, praying that their salaries might be increased, that the power of making the appointment should be vested in the Crown, and that their right to promotion should be occasionally recognised. In 1863, they received a reply ignoring the two latter points, but stating in regard to the first, that while there were no sufficient grounds for a general revision of salaries, there might be special cases for consideration. Interpreting this perhaps somewhat sanguinely, the Sheriff-Substitutes resolved, that such of their number as felt inclined might forward their special cases for consideration. The result was that, in the following year, 1864, some eight or nine of their number received additions of from £50 to £400 each to their salaries. The total amount added was under £1500, of which about a third was absorbed by one energetic member. The Sheriff-Substitutes devoted 1865 to reflections on this munificence, but in 1866 they again returned to the charge, presented another memorial, and (through a deputation of their number) interviewed the Home Secretary. This time they had a little more success; it is indeed believed that official smiles descended upon them. However, the smiles vanished on a change of administration; and in the following year (1867) the Sheriff-Substitutes had to renew their petitions to another Ministry. The Conservatives were then in office, and upon the deputation which waylaid them, they smiled more benignantly than their predecessors had ever done. Unluckily their good wishes came to no result. In the end of 1867 Lord Ormidale hinted at a public meeting, that our system of courts and legal proceedings was not all perfection, and Government promptly decided that the Sheriff-Substitutes must wait till an inquiry was made into this grave allegation. In 1868 the Sheriff-Substitutes made an ineffectual remonstrance against this decision. They were then "given to understand" that they must wait till the Commission had reported.

The Judicial Commission spent two years in inquiring, but in the summer of 1870 they did report, unanimously, that the Sheriff-Substitutes were underpaid. In the autumn of that year, with this report in their hand, the Sheriff-Substitutes again memorialized the Government. What answer has been given to this memorial no Sheriff-Substitute has rightly been able to discover,

but through diligent inquiries made through twenty-three different sources, we have come to believe that the Sheriff-Substitutes are now waiting for legislation. Big plans are afloat; and if the Sheriff-Substitutes are to wait till the present schemes of law reform are settled, more than other ten years will pass before anything so small as their position can be taken into consideration. Of those who signed the memorial of 1862, most are dead, or retired, and some have sunk altogether under pecuniary difficulties. If their successors, who are now in office, are to have any better fortune, there must be an end to this weary system of waiting from year to year for contingencies which never happen.

Whatever may become of greater schemes, practically everybody is agreed upon the two points which concern the Sheriff-Substitutes, namely, that the resident Sheriffs ought to be appointed by the Crown, and to be better paid. Everybody is also agreed that if the Crown had the power of appointment, it might (by judiciously re-arranging the districts from time to time, so as to suppress offices where there was little or no duty) recoup itself for any additional outlay which might at first be occasioned. Surely if Parliament cannot find time for larger schemes, the Sheriff-Substitutes have deserved enough at the hands of the country to entitle them to as much time as would let the Lord Advocate carry through short measures, dealing with the two points in which they are interested. Parliament, which finds time every year to impose new duties on the Sheriff-Substitutes, might find time for once to attend a little to something for their benefit. Meanwhile, the greater number of the Sheriff-Substitutes go on with incomes of between £500 and £600 a-year-less than their clerks, or fiscals, or any practitioner in decent business, or any factor, can earn-while in England, the legal profession discusses whether three or four times the amount is suitable renumeration for men with smaller jurisdiction. Our friend at Dumfries may wonder long why his colleague at Carlisle should have half the work and double the pay, but we must remember that on points like these we are all on the wrong side of the Border. It is however not too late, and this Session should not be lost without at least making a beginning of the end.

Public Prosecutors in England:-Mr. Frederic Hill, Barristerat-Law, on 2d December last, read a paper in the Jurisprudence Section of the Association of Social Science, which has been separately printed. The title is: "On the Expediency of giving to County Court Judges a Criminal Jurisdiction." From this paper we extract the following passages complimentary to criminal procedure in Scotland, from one, who from his lengthened residence and official experience in this section of the Kingdom, was well qualified to form an opinion on the subject:

"Thanks, in no small degree, to our colleague, Mr. Russell Gurney, the want of a public prosecutor seems now in a fair way of being supplied; and we have but to look to Scotland, whose example is so serviceable on the one point, to find a remedy for the other. In that

part of the country there exists, under the name of Sheriffs-Substitute, a body of able local Judges, corresponding in many respects with our County Court Judges, who administer not only the bulk of the civil law, but setting aside a portion of the petty offences, the bulk also of the criminal law: and who, in all cases of difficulty and danger, are ready to take upon themselves those duties of a magistrate which require courage, calmness, decision, and the authority gained by a reputation not only for strict impartiality, but also for full and exact knowledge of the duty to be performed.

"By giving to our County Court Judges a criminal in addition to their civil jurisdiction (powers shown in Scotland to be perfectly compatible powers too actually possessed by most of our own Superior Judges), the institution, so beneficial to Scotland, would in effect be extended to England; thereby providing, to a far greater extent than at present, for the due performance of the greatest of all the functions of Government-the full maintenance of security for life and property.

"That the benefits to Scotland are really great and substantial, I am enabled to attest, by a residence of twelve years in that country in an official position which gave me unusual opportunities of observing the working of the Criminal Law and I see no reason whatever why the same benefits may not be enjoyed in England; nor indeed why, by a judicious extension of the sound principle on which the system is based, they should not even be increased.

"Among other advantages arising from the presence, in every part of the country, of a Judge intrusted with large powers, and ready at all times to conduct a criminal trial, is an avoidance of those long delays before trial so common in England, and which are at once unjust to the innocent, and hurtful even to the guilty: seeing that a long period of uncertainty, with its attendant restlessness, is inconsistent with any process of moral reform. It is true that even in Scotland such delays are not altogether unknown-perhaps in some cases are unavoidable; but at all events they are comparatively few.

"It is long since any such trade outrages as have too lately disgraced Sheffield, and several other towns and mining districts in England, have been witnessed in Scotland; long also, since that country has seen so deplorable a spectacle as was this very last summer exhibited at Belfast; the streets filled with fanatics and plunderers, and the magisterial Bench occupied by men apparently in a state of paralysis. In Scotland too, as I found by inquiries personally made over the whole country, the number of habitual criminals of the ordinary kind, more especially of Scottish parentage and training, is very small.

"Judging from the experience of Scotland, the expense of the change need not be great; and a set-off to it may perhaps be gradually found in the suppression of some at least of the present Recorderships; an office which in Scotland does not exist. But whatever VOL. XVIL NO. CXCV.-MARCH 1873.

L

the cost might be, all persons conversant with the subject would, I presume, at once admit that it would be as nothing compared with the expense consequent upon unrepressed crime."

Carriers-Responsibility for Negligence where Goods pass through the hands of several Carriers.-The inconvenience of the absurd finality clauses by which the jurisdiction of our inferior Judges is made privative in many of the most important questions of daily life, is strikingly exhibited in a case on this subject lately decided by Sheriff Dove Wilson at Aberdeen, and reported in our present number. The Sheriff-Substitute held in the Small Debt Court, from which no special case can be brought, as in England, to the Court of Session, that an action laid on negligence in the carriage of goods may be brought against the railway company guilty of the negligence, although the contract for carriage was made originally with another company. It is of course well settled that where there is no special contract to the contrary, the company receiving the goods undertakes the responsibility for the whole distance, making the companies to which it hands over the goods at the end of its own line its agents for the rest of the transit. In England, however, since the cases of the Bristol and Exeter Ry. Co. v. Collins, 7 H. L. 194, 29 L. J. Ex. 41; and Coxon v. G.-W. Ry. Co., 29 L. J. Ex. 165, 5 H. & N. 274, it has been held that the only right of action is against the company with which the contract was made; and Lord Deas and Lord Ardmillan appear to be inclined to hold that the law is the same in Scotland (Scottish Central Ry. Co. v. Ferguson, March 30, 1863, 1 Macph. 750). The view taken by the learned SheriffSubstitute at Aberdeen seems to us more consistent with the convenience of the public and not repugnant to any legal principle; and though some of his observations may be open to criticism, we hope that, if the matter be fairly brought before the First Division in some other case, these learned Judges would refuse to be bound by the unsatisfactory rule adopted by the English Courts. It may be remarked that Mr. Deas in his admirable work on railways gives no opinion, though he seems to lean to the English rule, while Mr. M'Laren, in a note in the 7th edition of Bell's Commentaries (i. 494), after stating the law as to the liability of the Company receiving the goods, and its right of relief against the company ultimately responsible under their sub-contract, says: "But if the aggrieved person knows which company is ultimately responsible it will generally be more for his interest to bring his action directly against that company, as he may then expect to have the assistance of the first company in tracing the goods into their hands. In an action of this description the pursuer must aver an employment of the company in default through the agency of the first company acting at his request." We have no doubt that this passage is founded on a knowledge of the practice in the Sheriff-Courts of Scotland, where such actions must be not uncommon.

« ElőzőTovább »