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the earlier statutory regulations, however obsolescent; and the respect necessarily accorded to enactments left standing on the Statute books continues to forbid attempts to modify them. indirectly. Thus, the liberty allowed by 13 and 14 Vic. c. 36, ss. 1 and 54 cannot be used to make any but the mildest improvements on the antiquated form of summons prescribed by the Schedule to that Act, and still in use.

A view was strongly expressed in the course of the evidence. to the effect that the rigidity of the statutory enactments (particularly those prior to 1868) regarding forms and procedure had deprived the Court of much of its initiative in these departments. We think this is a sound view. The Court should, in our opinion, have unrestricted powers to regulate its whole business, and to adapt its methods to changing circumstances from time to time. We think the requirement that any Act of Sederunt must be laid on the table of both Houses of Parliament (together with the right of either House to negative its operation in whole or in part) provides an ample safeguard, if such be needed.

The present method of making regulations by Act of Sederunt, whether in relation to Court of Session forms and procedure, or in relation to the other matters above referred to, is not, in our opinion, satisfactory. The topics dealt with by Act of Sederunt. affect both the public utility of the Courts of Law in Scotland and many details of legal administration; and we think it would be a great advantage in the initiation and preparation of these regulations that there should be associated with the members of the Bench representatives of the Scottish Bar and of the legal profession in Scotland generally. There is naturally a certain diffidence in approaching the Court with suggestions for amendments and improvements in regulations of this kind. This diffidence would be overcome if the initiation and drafting of such regulations were entrusted in the first instance to a Council or Committee upon which the Bar and legal societies were represented. This is the plan adopted in England (Supreme Judicature Act, 1873, s. 75; 9 Edw. VII c. 11; 15 and 16 Geo. V c. 49, s. 99). The rules so framed should be submitted to the whole Court, and, if approved (with or without amendment), passed by Act of Sederunt as at present, and laid before both Houses of Parliament.

We accordingly recommend :

(1) THAT UNRESTRICTED POWER OF REGULATING, BY ACT OF SEDERUNT, ALL FORMS OF PROCESS AND PROCEDURE SHOULD BE RESTORED TO THE COURT OF SESSION IN ALL ACTIONS AND APPLICATIONS BROUGHT TO IT, INCLUDING POWER TO ALTER ANY STATUTORY REGULATIONS AFFECTING THESE MATTERS, BUT SUBJECT TO THE LAYING OF SUCH ACTS OF SEDERUNT ON THE TABLES OF BOTH HOUSES OF PARLIAMENT, AND TO THE RIGHT OF EITHER HOUSE WITHIN A MODIFED TIME TO NEGATIVE THEM;

(2) THAT A RULES COUNCIL, UNDER THE PRESIDENCY OF THE LORD PRESIDENT, SHOULD BE FORMED FOR THE PREPARATION OF NEW ACTS OF SEDERUNT, CONSISTING OF THREE JUDGES OF THE

COURT OF SESSION (OF WHOM THE LORD PRESIDENT SHOULD BE ONE), TWO MEMbers of the Bar, and seveN MEMBERS (APPOINTED AS HEREINAFTER PROVIDED) FROM THE SOCIETY OF WRITERS TO HIS MAJESTY'S SIGNET, THE SOCIETY OF SOLICITORS PRACTISING BEFORE THE SUPREME COURTS OF SCOTLAND, THE SCOTTISH LAW AGENTS' SOCIETY, AND ANY OF THE VARIOUS BODIES OF PROCURATORS THROUGHOUT SCOTLAND ;

(3) THAT THE COUNCIL SHOULD BE APPOINTED BY THE LORD PRESIDENT IN WRITING UNDER HIS HAND, AND SHOULD HOLD OFFICE FOR THE TIME SPECIFIED IN THE APPOINTMENT, AND THAT THE PRINCIPAL CLERK IN THE OFFICE OF THE COURT OF SESSION SHOULD ACT AS SECRETARY;

(4) THAT IT SHOULD BE COMPETENT For the Lord PRESIDENT TO FORM THE WHOLE COUNCIL OR ANY OF ITS MEMBERS (NOT LESS THAN FIVE IN NUMBER) INTO A COMMITTEE TO PREPARE ANY NEW ACT OF SEDERUNT, OR TO REPEAL OR AMEND EXISTING ACTS—

THE PROPOSALS SO MADE BEING THEREAFTER SUBMITTED TO THE

COURT, AND (IF, AND AS, APPROVED) passed as Acts of Sederunt

IN THE SAME MANNER AS AT PRESENT, AND LAID ON THE TABLES OF BOTH HOUSES OF PARLIAMENT.

CHAPTER IV.

SESSIONS AND VACATIONS.

History-Present Arrangements-English Sittings-February Week-
Proposed Rearrangement and Extension of Sessions---Mondays and
Saturdays during Session-Vacation Business.

Historical. At the institution of the Court, the sittings were prescribed by Act of Parliament (1532, c. 37) as follows:1. The morning after Epiphany to Palm Sunday Eve; 2. The morning after Low Sunday to Lammas;

3. The 19th of October to St Thomas' Eve.

If (for the purposes of comparison only) the calendar for 1926 be applied to these dates, the beginning and end of each of the three sittings would be as follows:

1. 7th January to 27th March;

2. 12th April to 31st July;

3. 19th October to 20th December.

The general resemblance of these sittings to those at present in vogue is interesting. But, though the Court sat every day of the week except Sunday and Holy Days, the daily sittings lasted only three hours from 8 a.m. to 11 a.m. (1532, cc. 45 and 49).

During the remainder of the sixteenth century, and in the

seventeenth and eighteenth centuries, the sittings of the Court were frequently altered by Parliament, either for the convenience of litigants in respect of the calls of harvest and seed-time, or on account of the then unwholesome state of the City of Edinburgh as summer became far-advanced, or on account of the troublous character of the times, or to suit the sittings of Parliament which the judges had to attend in their official capacity. In a number of years in the seventeenth and eighteenth centuries this latter circumstance led more or less frequently to the discharge, or at least to the adjournment, of the Summer Session. But in 1729-30 (3 Geo. II c. 32), the Winter Session was fixed as from the beginning of November to the end of February, with a recess covering Christmas and New Year; and in 1790 (30 Geo. III c. 17) the Summer Session was fixed as from 12th May to 11th July.

Monday was originally set apart for privileged summonses, but had ceased to be regarded as a regular Court day before Lord Stair's time (Stair IV ii. 4).

In 1830 (11 Geo. IV and 1 Wm. IV c. 69, ss. 9 and 10) sittings in vacation were instituted for jury trials; and (apart from these sittings) provisions were introduced whereby the regular sessions of the Court of Session might be extended by Order in Council by one month, in all, in the course of the year. Again, in 1839 (2 and 3 Vic. c. 36), the Court of Session was empowered to extend its sessions by not more than two months in the year, and the powers of the Privy Council under the Act of 1830 were correspondingly extended. These powers still remain.

In 1857 the sessions were rearranged (20 and 21 Vic. c. 56, s. 9). The Winter Session was fixed as from the first lawful day, other than Monday, after the 11th of November to March 20th, with power to the Court to adjourn for not more than fourteen days at ChristThe Summer Session was fixed as from the first lawful day, other than Monday, after the 11th of May to 20th July.

mas.

Sittings and Vacations.-The present arrangement of the Sessions (apart from the jury sittings in vacation and recess) was established only fifty-eight years ago, by the Court of Session Act, 1868 (31 and 32 Vic. c. 100, ss. 4 to 8). The Winter Session begins on 15th October (or on the first lawful day, other than a Monday, thereafter), and ends on 20th March; but the Court has power to adjourn for not more than fourteen days at Christmas and seven days in February. The Summer Session begins on 12th May and ends on 20th July (with similar provisions regarding Sundays and Mondays). Every day in the week, except Sunday and Monday, is a regular Court day (called a sederunt day); but the Court (other than the Lord Ordinary on the Bills) is forbidden to sit on either of the Scottish term days (15th May and 11th November), and may adjourn over any day observed as a public holiday or as a sacramental fast in the City of Edinburgh. Use of this power is in practice restricted to the official birthday of His Majesty. The reservation of one day in each week in the rolls of the Outer House for proofs and jury trials (by s. 6 of the 1868 Act) has since

been done away with by the Court itself, and the work goes on without interruption on every day of the week except Sunday and Monday. The hour of meeting of the whole Court is 10 a.m. (s. 7), and the customary hour of adjournment is 4 p.m., except on Saturdays when it is 1 p.m. Further, without prejudice to the powers of the Privy Council under the Acts of 1830 and 1839 (referred to above), the Court is authorised to extend the sittings of the Inner House (without limit) in any year in which the whole of the causes coming into the Inner House in the Winter Session shall not have been heard before the end of the Summer Session, if that course should be expedient for the despatch of business (s. 5). This power has never (it is believed) been used except for the hearing of particular cases, and is now practically superseded by resort to the temporary expedient (explained above) of forming a Third Division when arrears accumulate in the Inner House. We do not however suggest that the power should be taken away by repeal.

It will be seen that under these arrangements the regular sittings of the Court extend, in the Winter Session, over twenty-two weeks-less two weeks of recess at Christmas, and one week of recess in February-that is, nineteen weeks in all, and over ten weeks in Summer, or a total of twenty-nine weeks in the year. In addition, there are the Jury sittings required by 11 Geo. IV and 1 Wm. IV c. 69, s. 9; and 13 and 14 Vic. c. 36, s. 40, which take place during vacation or recess immediately after the rising of the Court. The amount of time and the number of judges required for these sittings depend on the number and length of the cases to be disposed of. It is difficult to state an average: in the last six years the number of cases set down for any of the various sittings has varied from two or three up to forty. Sittings may also be held in vacation or recess by any of the Lords Ordinary for the trial of certain cases (31 and 32 Vic. c. 100, s. 33); but again it is difficult to quantify these occasional sittings by any average figure. Further, as has already been observed, much of the work of the High Court of Justiciary is performed by the judges of the Court of Session during vacation and recess.

The evidence discloses a general demand for some extension of the regular sittings of the Court of Session. We cannot assume that the present depression of litigious business in Scotland is to be permanent, and-even under present conditions-the volume of work passing through the Court would absorb all the judicial time available, but for the frequent settlements which at present occur on the eve of trial. Thus, in the Outer House, proofs have still to be fixed months ahead owing to the number of similar engagements standing in the rolls of the Lords Ordinary. One view submitted to us was that the Court should be given an unfettered discretion to fix its sittings as might be found necessary from time to time to overtake the business coming before it. But while, as we have already said, we approve of allowing the Court to extend its sittings when required, we think it is both right and expedient that there should be regular and irreducible

Sessions with ascertained dates. The Sessions, however, could with advantage be longer than at present, and we think that in the aggregate they should be extended by four weeks in the year, the special jury sittings being abolished. If this were done, the regular sittings would extend over thirty-three weeks instead of twenty-nine as at present.

The English law terms admit of breaks between each of the four spells of work represented by the Hilary, Easter, Trinity, and Michaelmas terms into which the judicial year is divided. In the year 1926 these sittings worked out as follows:

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The English sittings in 1926 thus extended over thirty-four complete weeks, together with four broken periods of from one to five days each amounting to thirteen days in all. There is much to be said, in a department where unceasing vigilance and alertness of mind are required both on the Bench and at the Bar, for a system of breaks at relatively short intervals and (except in the case of the Autumn Vacation) of comparatively short duration. But it is too late to think of introducing in Scotland an entirely fresh division of the judicial year.

A number of the witnesses who favoured an extension of the sittings proposed the abolition of the February week (31 and 32 Vic. c. 100, s. 4) as a means of adding a week to the Winter Session. We have adopted this among other means of extending the Sessions of the Court.

It is of considerable importance in any rearrangement of the sittings to avoid broken weeks (as far as possible) at the beginning and end of each sitting. For example, as matters stand, the prescribed dates not infrequently result in making the Court resume its sittings on a Friday, or a Saturday; and it is by no means always possible to make economical use of such tag-ends of court-time without adjourning the hearing of a case and causing the parties expense. The English law-terms are open to the objection, from this point of view, that they tend to produce too many broken periods. In our opinion, the most convenient and economical plan would be that the sittings of the Court of Session should always begin on a Tuesday morning and always end on a Saturday afternoon. Tuesday is a more convenient day than Monday for the

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